<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 16, 1999
-------------
CITYSCAPE FINANCIAL CORP.
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 0-27314 11-2994671
- --------------------------- ---------------------- ---------------------------------
State or Other Jurisdiction Commission File Number (IRS Employer Identification No.)
of Incorporation
</TABLE>
565 Taxter Road, Elmsford, New York 10523-2300
- --------------------------------------------------------------------------------
(Address of Principal Executive Offices) Zip Code
Registrant's telephone number, including area code: (914) 592-6677
--------------
----------------------------------
Former name or former address,
if changed since last report
<PAGE> 2
Item 3. Bankruptcy or Receivership.
On October 6, 1998, Cityscape Financial Corp. ("Cityscape") announced
that it and Cityscape Corp., Cityscape's wholly-owned subsidiary ("CSC"), filed
a joint prepackaged plan of reorganization pursuant to chapter 11 of the United
States Bankruptcy Code in the United States Bankruptcy Court for the Southern
District of New York. In April 1999, Cityscape and CSC filed their First Amended
Joint Plan Of Reorganization dated as of April 27, 1999. On June 16, 1999, the
bankruptcy court entered the order confirming the reorganization plan . The
proceedings are captioned In re Cityscape Financial Corp. (Case No. 98-B-22569
(ASH)), and In re Cityscape Corp. (Case No. 98-B-22570 (ASH)).
The reorganization plan provides for substantive consolidation of the
assets of Cityscape and CSC and for distributions to creditors as summarized
below. Estimated recoveries are based upon (1) principal of and accrued and
unpaid interest on Cityscape's old senior notes (Cityscape's 12 3/4% Senior
Notes due 2004) and old subordinated debentures (Cityscape's 6% Convertible
Subordinated Debentures due 2006) as of the petition date and (2) an estimated
aggregate amount of allowed claims in classes 5 and 5a of $10.0 million. On the
effective date of the reorganization plan, of the 25.0 million shares of new
common stock that are authorized, approximately 7.7 million shares will be
issued and outstanding and the remainder of which will be available for future
issuance in respect of claims and interests filed and allowed under the
reorganization plan.
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------
ESTIMATED
CLASS DESCRIPTION TREATMENT RECOVERY
- ----- ----------- --------- --------
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
N/A Administrative claims (unclassified) Each holder will be paid cash equal to the full amount 100%
of its claim on, or as soon as practicable after, the
later of the effective date of the reorganization plan
and the day on which such claim becomes an allowed
claim, unless (i) the holder and the debtors or the
reorganized company agree to other treatment, or (ii) an
order of the bankruptcy court provides for other terms.
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
2
<PAGE> 3
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------
ESTIMATED
CLASS DESCRIPTION TREATMENT RECOVERY
- ----- ----------- --------- --------
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
N/A Priority tax claims (unclassified) Each holder will receive, at the sole option of the 100%
reorganized company (i) cash equal to the unpaid portion
of such holder's claim, or (ii) equal quarterly cash
payments in an aggregate amount equal to such claim,
together with interest at a fixed annual rate to be
determined by the bankruptcy court or otherwise agreed
to by the holder and the reorganized company over a
period through the sixth anniversary of the date of
assessment of such claim, or upon other terms approved
by the bankruptcy court.
- ----------------------------------------------------------------------------------------------------------------------------
1 Bank claims Unimpaired. To the extent there are any allowed bank 100%
claims as of the effective date of the reorganization
plan, each holder of an allowed bank claim will be paid
in full in cash on the effective date of the
reorganization plan.
- ----------------------------------------------------------------------------------------------------------------------------
2a et seq. Other secured claims (other than Unimpaired. Either (i) the claim will be left unaltered, 100%
secured claims in class 1) (ii) any default with respect the claim (other than a
default of a kind specified in Section 365(b)(2) of the
Bankruptcy Code) will be cured, the maturity of the claim
will be reinstated and the holder of the claim will be
compensated for any damages, or (iii) the claim will
receive other treatment to which the holder consents.
- ----------------------------------------------------------------------------------------------------------------------------
3 Priority claims Unimpaired. Each holder will receive cash equal to the 100%
amount of its claim, or other treatment, as determined
by the bankruptcy court, required to render such claim
unimpaired.
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
3
<PAGE> 4
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------
ESTIMATED
CLASS DESCRIPTION TREATMENT RECOVERY
- ----- ----------- --------- --------
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
4 and 4a Senior note claims and small senior Impaired. Each holder of an allowed class 4 Claim will 22.1%
note claims receive a pro rata portion of 7,346,708 shares of new
common stock (i.e., one share of new common stock for
every $45.26 in principal of and accrued interest on
such holder's old senior notes). Each holder of a class
4a claim (i.e., claims represented by old senior notes
of a principal amount of $5,000 or less) will receive
cash in an amount equal to $10.00 multiplied by the
number of shares of new common stock that such holder
would have been entitled to receive as a holder of an
allowed class 4 claim. Any holder of a class 4a claim,
however, may elect on a ballot or otherwise in writing
to receive the treatment afforded by class 4 (i.e., new
common stock) rather than class 4a (i.e., cash).
- ----------------------------------------------------------------------------------------------------------------------------
5 and 5a General unsecured claims and small Impaired. Each holder of an allowed class 5 claim will 16.6%
unsecured claims receive on account of its allowed claim one share of new
common stock for every $60.32 of its allowed claim. Each
holder of an allowed class 5a claim (i.e., general
unsecured claims of $8,000 or less) will receive cash in
an amount equal to $10.00 multiplied by the number of
shares of new common stock that it would have been
entitled to receive as a holder of an allowed class 5
claim. Any holder of a class 5a claim, however, may
elect on a ballot or otherwise in writing to receive the
treatment afforded by class 5 (i.e., new common stock)
rather than class 5a (i.e., cash).
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</TABLE>
4
<PAGE> 5
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------
ESTIMATED
CLASS DESCRIPTION TREATMENT RECOVERY
- ----- ----------- --------- --------
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
6 and 6a Subordinated debenture claims and Impaired. Each holder of an allowed class 6 claim will 3.2%
small subordinated debenture claims receive a pro rata portion of 431,702 shares of new
common stock (i.e., one share of new common stock for
every $316.56 in principal of and accrued interest on
such Holder's old subordinated debentures). Each holder
of an allowed class 6a claim (i.e., claims represented
by old subordinated debentures of a principal amount of
$50,000 or less) will receive cash in an amount equal to
(i) $10.00, multiplied by (ii) the number of shares of
new common stock that such holder would have been
entitled to receive as a holder of an allowed class 6
claim. Any holder of a class 6a claim, however, may
elect on a ballot or otherwise in writing to receive the
treatment afforded by class 6 (i.e., new common stock)
rather than class 6a (i.e., cash).
- ----------------------------------------------------------------------------------------------------------------------------
7 Securities claims of old debt Impaired. Holders will not receive or retain any interest 0%
or property under the reorganization plan.
- ----------------------------------------------------------------------------------------------------------------------------
8 Interests of holders of Series A Impaired. Holders will not receive or retain any interest 0%
Preferred Stock or property under the reorganization plan.
- ----------------------------------------------------------------------------------------------------------------------------
9 Securities claims of Series A Impaired. Holders will not receive or retain any interest 0%
Preferred Stock or property under the reorganization plan.
- ----------------------------------------------------------------------------------------------------------------------------
10 Interests of holders of Series B Impaired. Holders will not receive or retain any interest 0%
Preferred Stock or property under the reorganization plan.
- ----------------------------------------------------------------------------------------------------------------------------
11 Securities claims of Series B Impaired. Holders will not receive or retain any interest 0%
Preferred Stock or property under the reorganization plan.
- ----------------------------------------------------------------------------------------------------------------------------
12 Interests of holders of old Cityscape Impaired. Holders will not receive or retain any interest 0%
common stock or property under the reorganization plan.
- ----------------------------------------------------------------------------------------------------------------------------
13 Interests of holders of old stock rights Impaired. Holders will not receive or retain any interest 0%
in Cityscape and all claims arising out or property under the reorganization plan.
of these old stock rights
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
5
<PAGE> 6
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------
ESTIMATED
CLASS DESCRIPTION TREATMENT RECOVERY
- ----- ----------- --------- --------
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
14 Securities claims of old Cityscape Impaired. Holders will not receive or retain any interest 0%
common stock and old warrants or property under the reorganization plan.
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
The reorganization plan provides for certain releases by the debtors of
claims against various parties (including the debtors' officers and directors)
which claims relate in any way to Cityscape, CSC, the company's trust
indentures, the company's credit facilities, the debtors, the reorganization
cases, the reorganization plan or the related disclosure statement.
The Unaudited Pro Forma Consolidated Balance Sheet presented below is
based upon the historical consolidated financial position of the debtors as of
December 31, 1998. The pro forma adjustments made to the historical consolidated
balance sheet (based on the assumptions set forth below) give effect to the
reorganization as if that entire series of transactions, including the issuance
of the new common stock to the holders of the old senior notes, the old
subordinated debentures, and the trade creditors had occurred on December 31,
1998. In addition, since the reorganization is to be effectuated through a plan
of reorganization under chapter 11 of the Bankruptcy Code, the provisions of the
American Institute of Certified Public Accountants Statement of Position ("SOP")
90-7, (Financial Reporting by Entities in Reorganization under the Bankruptcy
Code), which require the application of fresh start reporting, have been
reflected in the pro forma consolidated balance sheet as of December 31, 1998.
The pro forma consolidated balance sheet is unaudited and was derived by
adjusting the historical balance sheet of the debtors for transactions described
in the footnotes. THIS PRO FORMA BALANCE SHEET IS PROVIDED FOR INFORMATIONAL
PURPOSES ONLY AND SHOULD NOT BE CONSTRUED TO BE INDICATIVE OF THE FINANCIAL
CONDITION OF THE DEBTORS HAD THE TRANSACTIONS BEEN CONSUMMATED ON THE DATE
INDICATED AND ARE NOT INTENDED TO BE PREDICTIVE OF THE FINANCIAL CONDITION OF
THE DEBTORS AT ANY FUTURE DATE.
The pro forma adjustments are based on available information and certain
assumptions that the debtors believe are reasonable under the circumstances. The
Unaudited Pro Forma Consolidated Balance Sheet and accompanying notes should be
read in conjunction with the historical consolidated financial statements of the
debtors, including the notes thereto, and the other information pertaining to
the debtors appearing in Cityscape's annual report on Form 10-K. In addition,
the independent auditors of Cityscape and CSC have neither examined nor compiled
the Unaudited Pro Forma Consolidated Balance Sheet and accordingly assume no
responsibility for it.
6
<PAGE> 7
UNAUDITED PRO FORMA CONSOLIDATED BALANCE SHEET
DECEMBER 31, 1998
(AMOUNTS IN THOUSANDS)
<TABLE>
<CAPTION>
Adjustments
Adjustments For Fresh
For After Start
Historical Reorganization Reorganization Reporting Pro Forma
---------- -------------- -------------- --------- ---------
<S> <C> <C> <C> <C> <C>
Assets
Cash And Cash Equivalents $ 18,405 $ (1,000) 1 $ 17,405 $ $ 17,405
Cash Held In Escrow 3,769 3,769 3,769
Mortgage Servicing Receivables - -
Trading Securities 33,661 33,661 33,661
Mortgages Held for Sale, Net 123,346 123,346 123,346
Mortgages Held for Investment, Net - -
Equipment And Leasehold Improvements, Net - -
Investment In Discontinued Operations, Net 13,008 13,008 13,008
Income Tax Receivable 1,550 1,550 1,550
Reorganization Value (600) 7 (600)
Other Assets 15,599 - 15,599 - 15,599
--------- --------- --------- -------- ---------
Total Assets $ 209,338 $ (1,000) $ 208,338 $ (600) $ 207,738
========= ========= ========= ======== =========
Liabilities
Warehouse Financing Facilities $ 105,969 $ $ 105,969 $ $ 105,969
Accounts Payable and Other Liabilities 23,519 23,519 23,519
Allowance For Loan Losses - -
Liabilities Subject to Compromise 47,804 (47,804) 2 - -
Old Senior Notes 300,000 (300,000) 3 - -
Old Subordinated Debentures 129,620 (129,620) 4 - - -
--------- --------- --------- -------- ---------
Total Liabilities 606,913 (477,424) 129,489 - 129,489
--------- --------- --------- -------- ---------
Equity (Deficit)
Old Cityscape Common Stock 649 (649) 5 - -
Old Cityscape Preferred Stock 0 (0) 5 - -
Treasury Stock (175) 175 5 - -
New Common Stock 128 5 128 128
Additional Paid-In Capital 175,304 347 5 175,651 (97,529) 78,121
Retained Earnings (Accumulated Deficit) (573,354) 476,424 6 (96,929) 96,929 7 -
Total Stockholder's Equity (Deficit) (397,575) 476,424 78,849 (600) 7 78,249
--------- --------- --------- -------- ---------
Total Liabilities and Equity (Deficit) $ 209,338 $ (1,000) $ 208,338 $ (600) $ 207,738
========= ========= ========= ======== =========
</TABLE>
- --------------------
1 To record estimated fees and expenses consisting of estimated financing
costs, severance, and professional fees.
7
<PAGE> 8
2 To record the elimination of interest accrued on the old senior notes and
old subordinated debentures and the extinguishment of other liabilities
subject to compromise.
3 To record the extinguishment of the old senior notes.
4 To record the extinguishment of the old subordinated debentures.
5 To reflect the issuance of new common stock and the cancellation of old
Cityscape common stock, old Cityscape preferred stock and treasury stock.
6 To record the net gain on forgiveness of debt and additional reorganization
expenses, as follows:
<TABLE>
<S> <C>
Gain on Forgiveness of Debt:
Extinguishment of the old senior notes $300,000
Extinguishment of the old subordinated debentures 129,620
Elimination of accrued interest and liabilities
subject to compromise 47,804
--------
Net gain on forgiveness of debt 477,424
Reorganization expenses (1,000)
--------
Total change in retained earnings $476,424
========
</TABLE>
7 To eliminate the historical deficit and reflect fresh start adjustments
(pursuant to SOP 90-7) related to the reorganization value of the
reorganized company.
This summary does not purport to be complete and is qualified in its
entirety by reference to the First Amended Joint Plan Of Reorganization filed as
exhibit 2.1 and incorporated into this report.
Item 7. Financial Statements, Pro Forma Financial
Information and Exhibits.
(c) Exhibits
2.1 First Amended Joint Plan Of Reorganization dated as
of April 27, 1999
8
<PAGE> 9
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Current Report on Form 8-K to be signed on its
behalf by the undersigned hereunto duly authorized.
CITYSCAPE FINANCIAL CORP.
(Registrant)
By: /s/Tim S. Ledwick
--------------------------------------
Name: Tim S. Ledwick
Title: Vice President and Chief Financial
Officer
Dated: June 30, 1999
9
<PAGE> 10
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibits Description Page
- -------- ----------- ----
<S> <C> <C>
2.1 First Amended Joint Plan Of Reorganization dated as of
April 27, 1999
</TABLE>
<PAGE> 1
LATHAM & WATKINS
885 Third Avenue
New York, New York 10022
(212) 906-1200
Robert J. Rosenberg (RJR 9585)
A. Brent Truitt (ABT 3799)
Rachael Fink (RF 3321)
Counsel for Debtors
and Debtors-in-Possession
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------x
In re: : Chapter 11
:
CITYSCAPE FINANCIAL CORP., : Case Nos. 98-B-22569 (ASH)
and CITYSCAPE CORP., : and 98-B-22570 (ASH)
: Jointly Administered
Debtors. :
------------------------------------------------------------x
CITYSCAPE FINANCIAL CORP.'S AND
CITYSCAPE CORP.'S FIRST AMENDED JOINT PLAN
OF REORGANIZATION DATED AS OF APRIL 27, 1999
Dated: April 27, 1999
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
I. INTRODUCTION..............................................................................................................1
II. DEFINITIONS, INTERPRETATION AND RULES OF CONSTRUCTION.....................................................................1
A. Definitions............................................................................................................1
B. Interpretation and Computation of Time.................................................................................14
1. Defined Terms.......................................................................................................14
2. Rules of Interpretation.............................................................................................15
3. Time Periods........................................................................................................15
III. POOLING OF ASSETS AND LIABILITIES AND CANCELLATION OF INTERCOMPANY CLAIMS.................................................15
IV. DESIGNATION OF CLASSES OF CLAIMS AND INTERESTS............................................................................16
V. GENERAL PROVISIONS FOR TREATMENT OF CLAIMS AND INTERESTS..................................................................19
A. Unclassified Claims...................................................................................................19
1. Administrative Claims..............................................................................................19
2. Priority Tax Claims................................................................................................19
3. Bar Date for Administrative Claims.................................................................................20
B. Treatment of Claims and Interests.....................................................................................22
1. Class 1 (Bank Claims)..............................................................................................22
2. Class 2a et seq. (Other Secured Claims)............................................................................22
3. Class 3 (Priority Claims)..........................................................................................22
4. Class 4 (Senior Note Claims) and Class 4a (Small Senior Note Claims)...............................................23
5. Class 5 (General Unsecured Claims) and Class 5a (Small Unsecured Claims)...........................................24
6. Class 6 (Subordinated Debenture Claims) and Class 6a (Small Subordinated Debenture Claims).........................24
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
7. Class 7 (Old Debt Securities Claims)...............................................................................25
8. Class 8 (Interests of Holders of Old Series A Preferred Stock).....................................................25
9. Class 9 (Old Series A Preferred Stock Securities Claims)...........................................................25
10. Class 10 (Interests of Holders of Old Series B Preferred Stock)....................................................26
11. Class 11 (Old Series B Preferred Stock Securities Claims)..........................................................26
12. Class 12 (Interests of Holders of Old Cityscape Common Stock)......................................................26
13. Class 13 (Interests of Holders of Old Stock Rights in Cityscape and all Claims Arising Out of Such Old Stock
Rights)............................................................................................................26
14. Class 14 (Old Cityscape Common Stock and Old Warrant Securities Claims)............................................27
C. Modification of Treatment of Claims....................................................................................27
VI. DISTRIBUTIONS UNDER THE PLAN..............................................................................................27
A. Disbursing Agent.......................................................................................................27
B. Timing of Distributions................................................................................................27
C. Methods of Distributions...............................................................................................28
1. Cash Payments......................................................................................................28
2. Issuance and Transfers of New Common Stock.........................................................................28
3. Compliance with Tax Requirements...................................................................................28
D. Pro Rata Distribution..................................................................................................29
E. Distribution Record Date...............................................................................................29
F. Surrender of Cancelled Voting Securities and Exchange for New Securities...............................................29
1. Tender of Voting Securities........................................................................................29
2. Delivery of New Common Stock in Exchange for Voting Securities.....................................................30
3. Special Procedures for Lost, Stolen, Mutilated or Destroyed Instruments............................................31
4. Failure to Surrender Cancelled Instrument..........................................................................31
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C>
G. Delivery of Distributions; Undeliverable or Unclaimed Distributions....................................................31
H. Procedures for Treating Disputed Claims Under Plan of Reorganization...................................................33
1. Disputed Claims and Objections to Claims and Interests.............................................................33
2. Professionals, Administrative Claims, Trade Claims and Employee Claims.............................................33
3. No Distributions Pending Allowance.................................................................................34
4. Distributions on Account of Disputed Claims and Interests Once They are Allowed....................................34
I. Setoffs................................................................................................................34
J. Termination of Subordination...........................................................................................34
VII. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES.....................................................................35
A. Assumptions............................................................................................................35
B. Cure of Defaults in Connection with Assumption.........................................................................35
C. Rejections.............................................................................................................35
D. Bar Date for Rejection Damages.........................................................................................36
VIII. ACCEPTANCE OR REJECTION OF THIS PLAN......................................................................................36
A. Voting Classes.........................................................................................................36
B. Presumed Acceptances of Plan...........................................................................................36
C. Presumed Rejections of Plan............................................................................................36
D. Voting Instructions....................................................................................................36
E. Voting Deadline and Extensions.........................................................................................37
F. Confirmability of Plan and Cramdown....................................................................................37
IX. MEANS FOR EXECUTION AND IMPLEMENTATION OF THE PLAN........................................................................37
A. Corporate Structure....................................................................................................37
B. Corporate Action.......................................................................................................37
</TABLE>
iii
<PAGE> 5
<TABLE>
<S> <C>
1. Cancellation of Old Securities and Related Agreements..............................................................37
2. Certificate of Incorporation and Bylaws for Reorganized Cityscape..................................................38
3. Certificate of Incorporation and Bylaws for Reorganized CSC........................................................38
4. Directors and Management of Reorganized Cityscape..................................................................38
5. Directors and Management of Reorganized CSC........................................................................39
C. Implementation.........................................................................................................39
D. Other Documents and Actions............................................................................................39
E. Payment of Statutory Fees..............................................................................................39
F. Payment of Fees and Expenses of Unofficial Committees' Counsel.........................................................39
G. Term of Injunctions or Stays...........................................................................................40
H. No Interest............................................................................................................40
I. Retiree Benefits.......................................................................................................40
J. Issuance of New Common Stock...........................................................................................40
X. CONFIRMATION AND EFFECTIVE DATE CONDITIONS................................................................................40
A. Conditions to Confirmation.............................................................................................40
B. Conditions to Effective Date...........................................................................................41
C. Waiver of Conditions to Confirmation and Effective Date................................................................41
XI. EFFECTS OF PLAN CONFIRMATION..............................................................................................41
A. Discharge of Debtors and Injunction....................................................................................41
B. Limitation of Liability................................................................................................42
C. Releases...............................................................................................................43
D. Indemnification........................................................................................................43
E. Vesting of Assets......................................................................................................44
F. Preservation of Causes of Action.......................................................................................44
</TABLE>
iv
<PAGE> 6
<TABLE>
<S> <C>
G. Retention of Bankruptcy Court Jurisdiction.............................................................................45
H. Failure of Bankruptcy Court to Exercise Jurisdiction...................................................................47
I. Committees.............................................................................................................47
XII. MISCELLANEOUS PROVISIONS..................................................................................................47
A. Final Order............................................................................................................47
B. Modification of the Plan...............................................................................................47
C. Revocation of the Plan.................................................................................................48
D. Severability of Plan Provisions........................................................................................48
E. Successors and Assigns.................................................................................................48
F. Saturday, Sunday or Legal Holiday......................................................................................48
G. Post-Effective Date Effect of Evidences of Claims or Interests.........................................................48
H. Governing Law..........................................................................................................49
I. No Liability for Solicitation or Participation.........................................................................49
J. No Admissions or Waiver of Objections..................................................................................49
</TABLE>
v
<PAGE> 7
I.
INTRODUCTION
Cityscape Financial Corp. (defined herein as "CITYSCAPE") and its
wholly-owned subsidiary Cityscape Corp. (defined herein as "CSC" and,
collectively with Cityscape, as "DEBTORS") hereby propose the following First
Amended Plan of Reorganization (defined herein as the "PLAN") for the resolution
of the Debtors' outstanding creditor claims and equity interests and request
Confirmation of the Plan pursuant to Section 1129 of the Bankruptcy Code.
All Holders of Claims and Interests are encouraged to read the Plan and
the accompanying solicitation materials in their entirety.
No materials, other than the accompanying solicitation materials and any
exhibits and schedules attached thereto or referenced therein, have been
approved by the Debtors for use in soliciting acceptances or rejections of the
Plan.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, ALL STATEMENTS IN THIS
PLAN AND THE ACCOMPANYING SOLICITATION MATERIALS CONCERNING THE HISTORY OF THE
DEBTORS' BUSINESSES, THE PAST OR PRESENT FINANCIAL CONDITION OF THE DEBTORS,
TRANSACTIONS TO WHICH THE DEBTORS WERE OR ARE PARTY, OR THE EFFECT OF
CONFIRMATION OF THE PLAN ON SECURED CREDITORS, UNSECURED CREDITORS OR EQUITY
SECURITY HOLDERS ARE ATTRIBUTABLE EXCLUSIVELY TO THE DEBTORS AND NOT TO ANY
OTHER PARTY.
II.
DEFINITIONS, INTERPRETATION AND RULES OF CONSTRUCTION
DEFINITIONS.
In addition to such other terms as are defined in other sections of the
Plan, the following terms (which appear in the Plan as capitalized terms) have
the following meanings as used in the Plan:
<PAGE> 8
"ADMINISTRATIVE CLAIM" means a Claim for payment of an administrative expense of
a kind specified in Section 503(b) of the Bankruptcy Code and referred to in
Section 507(a)(1) of the Bankruptcy Code, including, without limitation, the
actual and necessary costs and expenses incurred after the commencement of a
chapter 11 case of preserving the estate or operating the business of the
Company (including wages, salaries and commissions for services), loans and
advances to the Company made after the Petition Date, compensation for legal and
other services and reimbursement of expenses awarded or allowed under Section
330(a) or 331 of the Bankruptcy Code, certain retiree benefits, certain
reclamation claims (if any), and all fees and charges against the estate under
Section 1930 of title 28, United States Code.
"ALLOWED CLAIM" or "ALLOWED INTEREST" means a Claim against or Interest in the
Debtors:
(1) to the extent that a proof of such Claim or Interest was timely Filed and
served upon the Debtors and no objection to the Claim or Interest, or motion to
estimate the Claim or Interest for purposes of allowance, is Filed within the
time fixed by the Bankruptcy Court for such objections; or
(2) to the extent that a proof of such Claim or Interest is deemed Filed
under applicable law or pursuant to a Final Order of the Bankruptcy Court and no
objection to the Claim or Interest is Filed within the time fixed by the
Bankruptcy Court for such objections; or
(3) that is allowed pursuant to this Plan; or
(4) to the extent that a proof of such Claim or Interest is allowed pursuant
to the following sentence of this definition.
If the Debtors File an objection to a proof of Claim or Interest within a time
fixed by the Bankruptcy Court, the Claim or Interest shall be Allowed to the
extent of:
2
<PAGE> 9
(1) any amount of such Claim or Interest to which the Debtors did not object;
(2) any amount otherwise authorized by Final Order or the Plan; and
(3) any amount temporarily allowed by an Order for purposes of voting on the
Plan (which amount shall not be binding with respect to distributions to which
the Holder of such Claim or Interest shall be entitled under the Plan).
"ALLOWED ADMINISTRATIVE CLAIM," "ALLOWED PRIORITY TAX CLAIM," "ALLOWED SECURED
CLAIM" and "ALLOWED UNSECURED CLAIM" have correlative meanings.
"ALLOWED CLASS ... CLAIM" means an Allowed Claim in the particular Class
described.
"ALLOWED CLASS ... INTEREST" means an Allowed Interest in the particular Class
described.
"BALLOT" means a ballot or master ballot to be used for voting to accept or
reject the Plan.
"BANK CLAIMS" means all Claims represented by, relating to or arising under or
in connection with the Greenwich Facility or the CIT Facility.
"BANKRUPTCY CODE" means title 11 of the United States Code, as now in effect or
hereafter amended if such amendments are made applicable to the Reorganization
Cases.
"BANKRUPTCY COURT" means the United States Bankruptcy Court for the Southern
District of New York, or such other court or adjunct thereof that exercises
jurisdiction over the Reorganization Cases.
"BANKRUPTCY RULES" means the Federal Rules of Bankruptcy Procedure, as
applicable from time to time in the Reorganization Cases.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a "LEGAL
HOLIDAY" (as defined in Bankruptcy Rule 9006(a)).
3
<PAGE> 10
"CASH" means currency, a certified check, a cashier's check or a wire transfer
of immediately available funds from any source, or a check drawn on a domestic
bank from Reorganized Cityscape, Reorganized CSC or other Person making any
distribution under the Plan.
"CEDEL" means Cedel Bank, societe anonyme.
"CIT FACILITY" means that certain revolving credit facility entered into by CSC
with The CIT Group/Equipment Financing, Inc. on February 3, 1998, as amended
through the date hereof, which facility is guaranteed by Cityscape.
"CITYSCAPE" means Cityscape Financial Corp., a Delaware corporation.
"CLAIM" means a claim against either of the Debtors, whether or not asserted or
allowed, as defined in Section 101(5) of the Bankruptcy Code, including, without
limitation, Administrative Claims.
"CLASS" means a class of Claims or Interests designated pursuant to the Plan.
"CLEARING SYSTEMS" shall have the meaning ascribed to such term in Section
VI.F.2 of the Plan.
"CLERK" means the Clerk of the Bankruptcy Court.
"COMMITTEE" means any statutory committee of creditors or equity interest
Holders of the Debtors appointed by the United States Trustee pursuant to
Section 1102 of the Bankruptcy Code, including the Creditors' Committee, if one
is appointed.
"COMPANY" means Cityscape and CSC, collectively and individually as appropriate
from the context, as Debtors.
"CONFIRMATION" means the entry by the Bankruptcy Court of the Confirmation
Order.
"CONFIRMATION DATE" means the date on which the Clerk enters the Confirmation
Order on the Docket.
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<PAGE> 11
"CONFIRMATION HEARING" means the hearing on confirmation of the Plan, as the
Plan may be modified hereafter.
"CONFIRMATION ORDER" means the Order of the Bankruptcy Court confirming the Plan
under Section 1129 of the Bankruptcy Code.
"CREDITORS' COMMITTEE" means any Official Committee of Creditors of Cityscape
and/or CSC appointed by the United States Trustee pursuant to Section 1102 of
the Bankruptcy Code.
"CSC" means Cityscape Corp., a New York corporation and wholly-owned subsidiary
of Cityscape.
"DEBTOR RELEASEES" shall have the meaning ascribed to such term in Section XI.C.
of the Plan.
"DEBTORS" means, collectively, Cityscape and CSC, as debtors and Debtors In
Possession.
"DEBTORS IN POSSESSION" means the Debtors, when acting in the capacity of
representatives of the Estates in the Reorganization Cases.
"DESIGNATED PROFESSIONAL" means: (i) Latham & Watkins; (ii) Gibson, Dunn &
Crutcher LLP; (iii) Kasowitz, Benson, Torres & Friedman; (iv) Kramer Levin
Naftalis & Frankel LLP and (v) Jay Alix & Associates.
"DIP CLAIMS" means all Claims arising under the DIP Facilities.
"DIP FACILITIES" means the debtor in possession credit agreements and any
related agreements between the Debtors and the DIP Lenders.
"DIP LENDERS" means, collectively, The CIT Group/Equipment Financing, Inc.,
Greenwich Capital Financial Products, Inc. and any other lenders participating
in the DIP Facilities.
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<PAGE> 12
"DISBURSING AGENT" means, collectively, one or more Persons responsible for
making distributions under the Plan. The Reorganized Company or such Person(s)
as the Debtors may employ in their sole discretion will serve as Disbursing
Agent.
"DISCLOSURE STATEMENT" means the disclosure statement (including any prior
version thereof) pursuant to Section 1125 of the Bankruptcy Code with respect to
the Plan (and all exhibits and schedules annexed thereto or referred to
therein), as it may be amended or supplemented from time to time.
"DISPUTED CLAIM" means a Claim, not otherwise Allowed or paid pursuant to the
Plan, to the extent such Claim is the subject of a pending application, motion,
complaint, objection or other legal proceeding seeking to disallow, subordinate
or estimate such Claim.
"DISPUTED INTEREST" means an Interest to the extent such Interest is the subject
of a pending application, motion, complaint, objection or other legal proceeding
seeking to disallow, subordinate or estimate such Interest.
"DISTRIBUTION RECORD DATE" means the date or dates fixed by the Bankruptcy Court
as the record date for determining the Holders of Old Senior Notes and Old
Subordinated Debentures, respectively, who are entitled to receive distributions
under this Plan and, if no such date is fixed, means the Confirmation Date.
"DOCKET" means the docket or dockets in the Reorganization Cases maintained by
the Clerk.
"DTC" means The Depository Trust Company.
"EFFECTIVE DATE" means the first Business Day, as determined by the Debtors, on
which (i) all conditions to the Effective Date set forth herein have been
satisfied or, if permitted, waived by the Debtors, and on which no stay of the
Confirmation Order is in effect, and (ii) the Plan has been "substantially
consummated," as such term is defined in Section 1101(2) of the Bankruptcy Code.
"ELIGIBLE INSTITUTION" shall have the meaning ascribed to such term in Section
V.F.1.b of the Plan.
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<PAGE> 13
"EMPLOYEE CLAIMS" means Claims which are asserted by employees of the Debtors in
connection with their employment, including, without limitation, Claims arising
from or relating to salaries or wages, accrued paid vacation, health-related
benefits, severance benefits, field management and executive/administrative
management incentive plans and similar employee benefits.
"ESTATES" means the estates created in the Debtors' Reorganization Cases under
Section 541 of the Bankruptcy Code.
"EUROCLEAR" means Morgan Guaranty Trust Company of New York, as operator of the
Euroclear system.
"FILE," "FILED" or "FILING" means filed, or filing, with the Bankruptcy Court in
the Reorganization Cases.
"FINAL ORDER" means an order or judgment of the Bankruptcy Court, as entered on
the Docket in the Reorganization Cases, which has not been reversed, stayed,
modified or amended, and as to which (a) the time to appeal, seek certiorari or
request reargument or further review or rehearing has expired and no appeal,
petition for certiorari or request for reargument or further review or rehearing
has been timely filed, or (b) any appeal that has been or may be taken or any
petition for certiorari or request for reargument or further review or rehearing
that has been or may be filed has been resolved by the highest court to which
the order or judgment was appealed, from which certiorari was sought or to which
the request was made.
"FINANCING ORDERS" means, collectively, the interim and final orders entered by
the Bankruptcy Court in connection with the DIP Facilities.
"GENERAL UNSECURED CLAIMS" shall have the meaning ascribed to such term in
Article IV of the Plan.
"GREENWICH FACILITY" means that certain Master Loan and Security Agreement dated
as of January 1, 1997 between CSC and Greenwich Capital Financial Products,
Inc., as subsequently extended, amended or otherwise modified from time to time
through the date hereof, which facility is guaranteed by Cityscape.
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<PAGE> 14
"HOLDER" means a Person who holds a Claim or Interest in such Person's capacity
as the holder of such Claim or Interest. Where the identity of the Holder of a
Claim or Interest is set forth on a register or other record maintained by or at
the direction of the Debtors, the Holder of such Claim or Interest shall be
deemed to be the Holder as identified on such register or record unless the
Debtors are otherwise notified in a writing authorized by such Holder.
"IMPAIRED" shall have the definition given to it in Section 1124 of the
Bankruptcy Code. Section 1124 states in principal part:
[A] class of claims or interests is impaired under a plan unless, with
respect to each claim or interest of such class, the plan --
(1) leaves unaltered the legal, equitable, and contractual rights to
which such claim or interest entitles the holder of such claim or
interest; or
(2) notwithstanding any contractual provision or applicable law that
entitles the holder of such claim or interest to demand or receive
accelerated payment of such claim or interest after the occurrence of a
default --
(A) cures any such default that occurred before of after the commencement of
the case under this title, other than a default of a kind specified in section
365(b)(2) of this title;
(B) reinstates the maturity of such claim or interest as such maturity
existed before such default;
(C) compensates the holder of such claim or interest for any damages incurred
as a result of any reasonable reliance by such holder on such contractual
provision or such applicable law; and
(D) does not otherwise alter the legal, equitable, or contractual rights to
which such claim or interest entitles the holder of such claim or interest.
An Impaired Class is entitled to vote on the Plan; provided, however, that
Classes of Claims and Interests that do not receive or retain any property under
the Plan on account of such Claims and Interests are deemed to have rejected the
Plan and are not entitled to vote.
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<PAGE> 15
"INDEMNITEES" shall have the meaning ascribed to such term in Section XI.D of
the Plan.
"INDENTURE TRUSTEES" means (i) The Chase Manhattan Bank, as original indenture
trustee for the Old Senior Notes, (ii) Norwest Bank of Minnesota, N.A., as
successor indenture trustee for the Old Senior Notes, or any successor thereto,
and (iii) The Chase Manhattan Bank, N.A., as indenture trustee for the Old
Subordinated Debentures, or any successor thereto.
"INSTRUMENT" means any share of stock, security, promissory note or other
"INSTRUMENT," within the meaning of that term, as defined in Section 9-105(1)(i)
of the UCC.
"INTERCOMPANY CLAIMS" means any and all Claims and causes of action which either
of the Debtors holds against the other Debtor.
"INTEREST" means the interest of any equity security Holder of the Debtors,
whether or not asserted, as defined in Section 101(17) of the Bankruptcy Code.
"LETTER OF TRANSMITTAL" shall have the meaning ascribed to such term in Section
VI.F.1.b of the Plan.
"LOCAL BANKRUPTCY RULES" means the local rules of the Bankruptcy Court, as
applicable from time to time in the Reorganization Cases.
"NEW COMMON STOCK" means common stock of Reorganized Cityscape, par value $0.01
per share, which may be issued by Reorganized Cityscape on and after the
Effective Date pursuant to the Plan or otherwise.
"OLD CITYSCAPE COMMON STOCK" means the common stock of Cityscape, par value $.01
per share.
"OLD CITYSCAPE PREFERRED STOCK" means Old Series A Preferred Stock and the Old
Series B Preferred Stock.
"OLD DEBT" means, collectively, the Old Senior Notes and Old Subordinated
Debentures.
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<PAGE> 16
"OLD SECURITIES" means, collectively, the Old Debt, the Old Cityscape Common
Stock, the Old Cityscape Preferred Stock and the Old Warrants.
"OLD SENIOR NOTES" means the 12 3/4% Series A Senior Notes due 2004 issued by
Cityscape.
"OLD SERIES A PREFERRED STOCK" means Cityscape's 6% Convertible Preferred Stock,
Series A, with an initial liquidation preference of $10,000 per share, of which
626 shares remain outstanding as of the date hereof.
"OLD SERIES B PREFERRED STOCK" means Cityscape's 6% Convertible Preferred Stock,
Series B, with an initial liquidation preference of $10,000 per share, of which
4,551 shares remain outstanding as of the date hereof.
"OLD SERIES A WARRANTS" means the five-year warrants (which relate to the Old
Series A Preferred Stock) to purchase 500,000 shares of Old Cityscape Common
Stock with an exercise price of $20.625 per share.
"OLD SERIES B WARRANTS" means the five-year warrants (which relate to the Old
Series B Preferred Stock) to purchase 500,000 shares of Old Cityscape Common
Stock with an exercise price per share equal to the lesser of (i) $14.71 and
(ii) 130% of the average closing sales prices over the 20 trading day period
ending on the trading day immediately prior to the first anniversary of the
original issuance of such warrants.
"OLD STOCK RIGHTS" means, collectively, any Old Warrants, and any other rights
or options, to purchase or otherwise acquire Old Securities, and any stock
appreciation or similar rights relating to Old Securities, existing prior to the
Effective Date, including, without limitation, such rights under Cityscape's
1995 Non-Employee Directors Stock Option Plan, Cityscape's 1995 Stock Option
Plan, Cityscape's Stock Purchase Plan, Cityscape's 1997 Stock Option Plan, and
Cityscape's Stock Option Program for certain executive officers, and
registration rights granted by Cityscape to Franklin Mutual Advisers, Inc. "Old
Stock Rights" do not include any rights arising out of the ownership of Old
Securities other than the Old Warrants.
"OLD SUBORDINATED DEBENTURES" means the 6% Convertible Subordinated Debentures
due 2006 issued by Cityscape.
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<PAGE> 17
"OLD WARRANTS" means the Old Series A Warrants and the Old Series B Warrants.
"ORDER" means an order or judgment of the Bankruptcy Court as entered on the
Docket.
"ORDINARY COURSE PROFESSIONALS' ORDER" means the order which, if entered by the
Clerk, will authorize the Debtors to (a) retain and employ various professionals
who are not working directly to implement the Reorganization Cases and (b) pay
such professionals without need for application, hearing and Final Order.
"OTHER SECURED CLAIM" means any Allowed Secured Claim not classified in Class 1.
Other Secured Claims are classified in Class 2a et seq.
"PERSON" means any individual, corporation, general partnership, limited
partnership, limited liability partnership, limited liability company,
association, joint stock company, joint venture, government or political
subdivision, official committee appointed by the United States Trustee,
unofficial committee of creditors or equity Holders, or other "entity" (as
defined in the Bankruptcy Code).
"PETITION DATE" means October 6, 1998, the date on which the Reorganization
Cases were Filed.
"PLAN" means this plan of reorganization (including any prior version thereof)
for the Debtors in the Reorganization Cases and all exhibits and schedules
annexed hereto, as such may be amended, modified or supplemented from time to
time.
"POST-PETITION TAX CLAIMS" means Administrative Claims and other Claims by a
governmental unit for taxes (and for interest and/or penalties related to such
taxes) for any tax year or period, to the extent such Claim accrues within the
period from and including the Petition Date through and including the Effective
Date.
"PREPETITION CREDIT FACILITIES" means the CIT Facility and the Greenwich
Facility.
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<PAGE> 18
"PRIORITY CLAIM" means an Allowed Claim entitled to priority under Sections
507(a)(3) through 507(a)(7) or 507(a)(9) of the Bankruptcy Code, but excludes
Priority Tax Claims.
"PRIORITY TAX CLAIM" means an Allowed Claim for an amount entitled to priority
under Section 507(a)(8) of the Bankruptcy Code.
"PRO RATA" means proportionately so that, with respect to any Class, the ratio
of (a) the amount of consideration distributed on account of a particular
Allowed Claim or Allowed Interest to (b) the amount of such particular Allowed
Claim or Allowed Interest, is the same as the ratio of (x) the amount of
consideration distributed on account of all Allowed Claims or Allowed Interests
of the Class in which the particular Allowed Claim or Allowed Interest is
included to (y) the aggregate amount of all Allowed Claims or Allowed Interests
of that Class.
"REINSTATED," means, with respect to any Allowed Claim or Allowed Interest, that
such Claim or Interest shall be treated as Unimpaired as of the Effective Date.
"REORGANIZATION CASES" means the Debtors' cases under chapter 11 of the
Bankruptcy Code.
"REORGANIZED CITYSCAPE" means Cityscape, as it will be reorganized as of the
Effective Date in accordance with this Plan and having such name as shall be
determined prior to the Confirmation Date by the Board of Directors of
Cityscape.
"REORGANIZED CITYSCAPE BYLAWS" means the amended and restated bylaws of
Reorganized Cityscape that will be effective on the Effective Date, in
substantially the form annexed as Exhibit "B" hereto.
"REORGANIZED CITYSCAPE CERTIFICATE OF INCORPORATION" means the amended and
restated certificate of incorporation of Reorganized Cityscape that will be
effective on the Effective Date, in substantially the form annexed as Exhibit
"A" hereto.
"REORGANIZED CSC" means CSC, as it will be reorganized as of the Effective Date
in accordance with this Plan and having such name as shall be determined prior
to the Confirmation Date by the Board of Directors of CSC.
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<PAGE> 19
"REORGANIZED CSC BYLAWS" means the amended and restated bylaws of Reorganized
CSC that will be effective on the Effective Date, in substantially the form
annexed as Exhibit "D" hereto.
"REORGANIZED CSC CERTIFICATE OF INCORPORATION" means the amended and restated
certificate of incorporation of Reorganized CSC that will be effective on the
Effective Date, in substantially the form annexed as Exhibit "C" hereto.
"REORGANIZED COMPANY" means Reorganized Cityscape and Reorganized CSC,
collectively and individually, as appropriate from the context.
"SECURED CLAIM" means any Claim that is secured by a lien on property in which
the Estates have an interest or that is subject to setoff under Section 553 of
the Bankruptcy Code, to the extent of the value of the Claim Holder's interest
in the Estates' interest in such property or to the extent of the amount subject
to setoff, as applicable, as determined pursuant to Section 506(a) or 1111(b) of
the Bankruptcy Code.
"SECURITIES CLAIM" means (a) any Claim arising from rescission of a purchase or
sale of Old Securities or for damages arising from the purchase or sale of Old
Securities, or (b) any Claim for indemnity, reimbursement, or contribution on
account of any such Claim.
"SENIOR NOTE CLAIMS" means Claims arising from the Old Senior Notes (including
all Claims and causes of action arising therefrom or in connection therewith).
"SMALL SENIOR NOTE CLAIMS" shall have the meaning ascribed to such term in
Article IV of the Plan.
"SMALL SUBORDINATED DEBENTURE CLAIMS" shall have the meaning ascribed to such
term in Article IV of the Plan.
"SMALL UNSECURED CLAIMS" shall have the meaning ascribed to such term in Article
IV of the Plan.
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<PAGE> 20
"SUBORDINATED DEBENTURE CLAIMS" means Claims arising from the Old Subordinated
Debentures (including all Claims and causes of action arising therefrom or in
connection therewith).
"TENDERED CERTIFICATES" shall have the meaning ascribed to such term in Section
VI.F.1.b of the Plan.
"TORT CLAIM" means any Claim related to personal injury, property damage or
loss, products liability or other similar Claims against either Debtor, and
shall not include Securities Claims or Claims arising under, based upon or
related to Old Stock Rights.
"TRADE CLAIMS" means any unsecured Claim against either Cityscape or CSC arising
from (i) the delivery of goods or services in the ordinary course of business or
(ii) insurance-related service (including insurance premiums). "Trade Claim"
excludes (i) Claims arising under Section 502(e) or 502(g) of the Bankruptcy
Code, (ii) Claims of the type described in Section 726(a)(4) of the Bankruptcy
Code, and (iii) Tort Claims.
"UCC" means the Delaware Uniform Commercial Code, as in effect at any relevant
time.
"UNIMPAIRED" means, with reference to a Class of Claims or Interests, that the
Class is not Impaired. An Unimpaired Class is not entitled to vote on the Plan.
"UNOFFICIAL COMMITTEES" means the Unofficial Senior Noteholders' Committee and
the Unofficial Subordinated Debentureholders' Committee.
"UNOFFICIAL SENIOR NOTEHOLDERS' COMMITTEE" means (i) MacKay-Shields Financial
Corporation, as investment advisor to various funds, (ii) Cerberus Partners,
L.P., and such other representatives of the Senior Note Claims as may be
designated from time to time.
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<PAGE> 21
"UNOFFICIAL SUBORDINATED DEBENTUREHOLDERS' COMMITTEE" means (i) Forest
Investment Management, (ii) Bear, Stearns & Co. Inc., (iii) Deephaven Market
Neutral Trading Limited (f/k/a KA Management), (iv) Tamar Securities Inc., (v)
Aristeia Capital LLC, (vi) J. Robbins Securities, LLC, (vii) RAS Securities
Corp., (viii) D.A. Davidson & Co., (ix) Donaldson, Lufkin & Jenrette Securities
Corporation, (x) Mercantile Bank, (xi) Mellon Bank, as trustee for General
Motors Employees Domestic Group Pension Trust, (xii) Ramat Securities Ltd., and
such other representatives of the Subordinated Debenture Claims as may be
designated from time to time.
"UNSECURED CLAIM" means any Claim that is not an Administrative Claim, Priority
Claim, Priority Tax Claim or Secured Claim.
"VOTING AGENT" shall have the meaning ascribed to such term in Section VIII.E of
the Plan.
"VOTING DEADLINE" means the date on which Ballots must be received by the Voting
Agent at the address set forth on the applicable Ballot. For purposes of the
Plan, the Voting Deadline is 5:00 p.m., New York City Time, June 1, 1999.
"VOTING RECORD DATE" means April 27, 1999.
"VOTING SECURITIES" means, collectively, the Old Senior Notes and the Old
Subordinated Debentures.
INTERPRETATION AND COMPUTATION OF TIME.
1. Defined Terms.
Any term used in the Plan that is not defined in the Plan, either in
Article II (Definitions) or elsewhere, but that is defined in the Bankruptcy
Code, the Bankruptcy Rules or the Local Bankruptcy Rules, shall have the meaning
assigned to that term in the Bankruptcy Code, the Bankruptcy Rules or the Local
Bankruptcy Rules, as the case may be.
2. Rules of Interpretation.
For purposes of the Plan: (a) whenever it appears appropriate from the
context, each term, whether stated in the singular or the plural, shall include
both the singular and the plural; (b) any reference in the Plan to a contract,
instrument, release or other agreement or
15
<PAGE> 22
document being in a particular form or on particular terms and conditions means
that such document shall be substantially in such form or substantially on such
terms and conditions; provided, however, that any change to such form, terms, or
conditions which is material to a party to such document shall not be made
without such party's consent; (c) any reference in the Plan to an existing
document or exhibit Filed or to be Filed means such document or exhibit, as it
may have been or (to the extent otherwise permitted, hereafter) may be amended,
modified or supplemented from time to time; (d) unless otherwise specified in a
particular reference, all references in the Plan to paragraphs, sections,
articles and exhibits are references to paragraphs, sections, articles and
exhibits of or to the Plan; (e) the words "herein," "hereof" "hereto,"
"hereunder" and others of similar import refer to the Plan in its entirety
rather than to a particular portion of the Plan only; (f) captions and headings
to articles and paragraphs are inserted for convenience of reference only and
are not intended to be a part of or to affect the interpretations of the Plan;
(g) the rules of construction set forth in Section 102 of the Bankruptcy Code
shall apply; and (h) all exhibits to the Plan are incorporated into the Plan,
and shall be deemed to be included in the Plan.
3. Time Periods.
In computing any period of time prescribed or allowed by the Plan, the
provisions of Bankruptcy Rule 9006(a) shall apply.
III.
POOLING OF ASSETS AND LIABILITIES AND
CANCELLATION OF INTERCOMPANY CLAIMS
On the Effective Date, the assets and liabilities of the Debtors shall be
pooled to the extent specified in this Plan. The legal rights and priorities of
each Holder of a Claim shall be treated as having a single recourse against such
pooled assets. Each Holder of a Claim who has asserted a Claim against both of
the Debtors arising from or related to the same underlying obligation or cause
of action, whether the basis for the asserted liability of the Debtors arises by
contract, guarantee (including CSC's guarantee of Cityscape's obligations under
the Old Senior Notes), or by operation of law, shall likewise be treated as
having a single Claim against the assets of the pooled estate.
On the Effective Date, as part of such pooling, each of the Debtors shall
be deemed to have fully and finally compromised and settled all Intercompany
Claims. As a result of giving effect to such pooling of assets and liabilities
and such compromise and settlement, all Intercompany Claims shall be treated as
extinguished immediately upon the Effective Date and shall receive no
distribution pursuant to this Plan.
The pooling of assets and liabilities provided for under this Article III
shall be only for purposes of distributions under this Plan. Nothing in this
Plan or the Confirmation
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<PAGE> 23
Order shall effect a merger or any other combination of Cityscape and CSC, or
Reorganized Cityscape and Reorganized CSC.
IV.
DESIGNATION OF CLASSES OF CLAIMS AND INTERESTS
The following is a designation of the Classes of Claims and Interests
under the Plan. In accordance with Section 1123(a)(1) of the Bankruptcy Code,
Administrative Claims and Priority Tax Claims have not been classified and are
excluded from the following Classes. A Claim or Interest is classified in a
particular Class only to the extent that the Claim or Interest qualifies within
the description of that Class, and is classified in another Class or Classes to
the extent that any remainder of the Claim or Interest qualifies within the
description of such other Class or Classes. A Claim or Interest is classified in
a particular Class only to the extent that the Claim or Interest is an Allowed
Claim or Allowed Interest in that Class and has not been paid, released or
otherwise satisfied before the Effective Date; a Claim or Interest which is not
an Allowed Claim or Allowed Interest is not in any Class. A Disputed Claim or
Disputed Interest, to the extent that it subsequently becomes an Allowed Claim
or Allowed Interest, shall be included in the Class for which it would have
qualified had it not been disputed. Notwithstanding anything to the contrary
contained in the Plan, no distribution shall be made on account of any Claim or
Interest to the extent such Claim or Interest is not an Allowed Claim or an
Allowed Interest.
<TABLE>
<CAPTION>
<S> <C>
Class 1--Bank Claims Class 1 consists of all Allowed Bank Claims against the Debtors.
Class 2a et seq.--Other Secured Claims Class 2 consists of all Allowed Secured Claims against the Debtors other than
Secured Claims specified in Class 1.
Class 3--Priority Claims Class 3 consists of all Allowed Priority Claims against the Debtors.
</TABLE>
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<PAGE> 24
<TABLE>
<S> <C>
Class4--Senior Note Claims and Class 4 consists of all Allowed Claims against the
Debtors of Holders of Old Senior Notes, including
Class 4a --Small Senior Note Claims Claims based upon CSC's guarantee of Cityscape's
obligations under the Old Senior Notes. Class 4a
consists of each Allowed Senior Note Claim whose
principal amount is equal to or less than $5,000.00
or whose Holder agrees on a Ballot or otherwise in
writing to reduce the principal amount of such
Allowed Senior Note Claim to $5,000.00 and to
release and waive any further or additional Claim(s)
against the Debtors ("SMALL SENIOR NOTE CLAIMS").
Class 5--General Unsecured Claims Class 5 consists of all Allowed Unsecured Claims
and Class 5a--Small Unsecured Claims against the Debtors other than the Unsecured Claims in
Classes 4, 4a, 6, 6a, 7, 9, 11, 13 and 14 ("GENERAL
UNSECURED CLAIMS"). Class 5a consists of each
Allowed General Unsecured Claim that is equal to or
less than $8,000.00 or whose Holder agrees on a
Ballot or otherwise in writing to reduce such
Allowed Unsecured Claim to $8,000.00 and to release and
waive any further or additional Claim(s) against the Debtors
("SMALL UNSECURED CLAIMS").
Class 6--Subordinated Debenture Claims and Class 6 consists of all Allowed Claims against the
Debtors of Holders of Old Subordinated Debentures.
Class 6a--Small Subordinated Debenture Claims Class 6a consists of each Allowed Subordinated
Debenture Claim whose principal amount is equal to
or less than $50,000.00 or whose Holder agrees on a
Ballot or otherwise in writing to reduce the
principal amount of such Allowed Subordinated Debenture
Claim to $50,000.00 and to release and waive any further
or additional Claim(s) against the Debtors ("Small Subordinated
Debenture Claims").
Class 7--Old Debt Securities Claims Class 7 consists of all Allowed Securities Claims on
account of Old Debt against the Debtors.
</TABLE>
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<PAGE> 25
<TABLE>
<S> <C>
Class 8--Old Series A Preferred Stock Class 8 consists of all Allowed Interests in Cityscape of
Holders of Old Series A Preferred Stock.
Class 9--Old Series A Preferred Stock Class 9 consists of all Allowed Securities Claims on
Securities Claims account of Old Series A Preferred Stock against the Debtors.
Class 10--Old Series B Preferred Stock Class 10 consists of all Allowed Interests in
Cityscape of Holders of Old Series B Preferred Stock.
Class 11--Old Series B Preferred Stock Class 11 consists of all Allowed Securities Claims on
Securities Claims account of Old Series B Preferred Stock against the Debtors.
Class 12 --Old Cityscape Common Stock Class 12 consists of all Allowed Interests in Cityscape of
Holders of Old Cityscape Common Stock.
Class 13--Old Stock Rights Class 13 consists of all Allowed Interests in Cityscape of
Holders of Old Stock Rights and all Allowed Claims
arising out of any such Old Stock Rights, including,
without limitation, all Allowed Claims arising out
of the rejection of Old Stock Rights.
Class 14--Old Cityscape Common Stock Class 14 consists of all Allowed Securities Claims on
and Old Warrant Securities Claims account of Old Cityscape Common Stock or Old Warrants against the Debtors.
</TABLE>
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<PAGE> 26
V.
GENERAL PROVISIONS FOR TREATMENT OF CLAIMS AND INTERESTS
UNCLASSIFIED CLAIMS.
1. ADMINISTRATIVE CLAIMS.
a. GENERAL.
Subject to certain additional requirements for professionals and certain
other entities set forth below, the Reorganized Company shall pay to each Holder
of an Allowed Administrative Claim, on account of its Administrative Claim and
in full satisfaction thereof, Cash equal to the amount of such Allowed
Administrative Claim on, as soon as practicable after, the later of the
Effective Date and the day on which such Claim becomes an Allowed Claim, unless
the Holder and the Debtors or the Reorganized Company agree or shall have agreed
to other treatment of such Claim, or an order of the Bankruptcy Court provides
for other terms; provided, that if incurred in the ordinary course of business
or otherwise assumed by the Debtors pursuant to the Plan (including
Administrative Claims of governmental units for taxes), an Allowed
Administrative Claim will be assumed on the Effective Date and paid, performed
or settled by the Reorganized Company, when due in accordance with the terms and
conditions of the particular agreement(s) governing the obligation in the
absence of the Reorganization Cases.
b. PAYMENT OF STATUTORY FEES.
On or before the Effective Date, all fees payable pursuant to 28 U.S.C.
Section 1930, as determined by the Bankruptcy Court at the Confirmation Hearing,
shall be paid in Cash equal to the amount of such Administrative Claim.
2. PRIORITY TAX CLAIMS.
Unless otherwise agreed to by the Debtors or the Reorganized Company, and
a Holder of a Priority Tax Claim, each Holder of an Allowed Priority Tax Claim
shall receive, at the sole option of the Reorganized Company (i) Cash equal to
the unpaid portion of such Allowed Priority Tax Claim on the later of the
Effective Date and the date on which such Claim becomes an Allowed Priority Tax
Claim, or as soon thereafter as is practicable, or (ii) equal quarterly cash
payments in an aggregate amount equal to such Allowed Priority Tax Claim,
together with interest at a fixed annual rate to be determined by the Bankruptcy
Court or otherwise agreed to by the Reorganized Company and such Holder, over a
period through the sixth anniversary of the date of assessment of such Allowed
Priority Tax Claim, or upon such other terms determined by the Bankruptcy Court
to provide the Holder of such Allowed Priority Tax Claim deferred cash payments
having a value, as of the Effective Date, equal to such
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Allowed Priority Tax Claim. The Holders of Allowed Priority Tax Claims are not
entitled to vote on the Plan. Pursuant to Section 1123(a)(l) of the Bankruptcy
Code, Priority Tax Claims are not designated a Class of Claims for purposes of
the Plan.
3. BAR DATE FOR ADMINISTRATIVE CLAIMS.
a. GENERAL PROVISIONS.
Except as provided below for (i) non-tax liabilities incurred in the
ordinary course of business by the Debtors in Possession, (ii) Post-Petition Tax
Claims, and (iii) DIP Claims, requests for payment of Administrative Claims must
be Filed and served on counsel for the Debtors and Reorganized Cityscape or
Reorganized CSC, as the case may be, no later than (x) sixty (60) days after the
Effective Date, or (y) such later date, if any, as the Bankruptcy Court shall
order upon application made prior to the end of such 60-day period. Holders of
Administrative Claims (including, without limitation, professionals requesting
compensation or reimbursement of expenses and the Holders of any Claims for
federal, state or local taxes) that are required to File a request for payment
of such Claims and that do not File such requests by the applicable bar date
shall be forever barred from asserting such Claims against the Debtors,
Reorganized Cityscape, Reorganized CSC, or any of their respective properties.
No request for payment shall be required in connection with the DIP Claims,
which, notwithstanding anything to the contrary in this Plan, shall be paid in
full in Cash on the Effective Date, as provided in the DIP Facilities and the
Financing Orders.
b. PROFESSIONALS.
All professionals or other Persons requesting compensation or
reimbursement of expenses pursuant to Section 327, 328, 330, 331, 503(b) or 1103
of the Bankruptcy Code for services rendered on or before the Effective Date
(including, without limitation, any compensation requested by any professional
or any other Person for making a substantial contribution in the Reorganization
Cases) shall File and serve on the Reorganized Company and counsel for the
Reorganized Company an application for final allowance of compensation and
reimbursement of expenses no later than (i) sixty (60) days after the Effective
Date, or (ii) such later date, if any, as the Bankruptcy Court shall order upon
application made prior to the end of such 60-day period; provided, however, that
any professional who may receive compensation or reimbursement of expenses
pursuant to the Ordinary Course Professionals' Order without having filed an
application may continue to receive compensation or reimbursement for services
rendered before the Effective Date without further Bankruptcy Court review or
approval to the extent provided in the Ordinary Course Professionals' Order.
Objections to applications of professionals or other Persons for compensation or
reimbursement of expenses must be Filed and served on the Reorganized Company,
counsel for the Reorganized Company and the requesting professional or other
Person on or before the later of (x) ninety (90) days after the Effective Date
and (y) thirty (30) days after such date as the Bankruptcy Court shall establish
as the deadline for Filing such applications. The professionals of the Debtors
and any Committee shall be entitled
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to reasonable compensation by, and reimbursement of expenses from, the
Reorganized Company for services rendered or costs incurred by such
professionals after the Effective Date promptly after submission of appropriate
invoices to the Reorganized Company. In the event of a dispute over any such
invoices, the Reorganized Company shall promptly pay any amount not in dispute
and, if such dispute cannot be resolved among the parties, such dispute shall be
resolved by the Bankruptcy Court.
c. INDENTURE TRUSTEES.
On or as soon as reasonably practicable after the Effective Date, the
Reorganized Company shall pay the contractual claims of the Indenture Trustees
for their fees and expenses including their reasonable attorneys' fees and
expenses. To the extent, after being furnished with normal supporting documents
for such fees and expenses, the Reorganized Company disputes the reasonableness
of any such fees and expenses, the Reorganized Company shall pay such fees and
expenses as are not disputed, and shall submit to the Indenture Trustee a
written list of specific fees and expenses viewed by the Reorganized Company as
not being reasonable. To the extent that the Reorganized Company and the
Indenture Trustee are unable to resolve the dispute, the dispute shall be
resolved by the Bankruptcy Court. Pending the resolution of any such dispute by
consent or by Final Order of the Bankruptcy Court, an amount of Cash equal to
the disputed portion of the Indenture Trustee's request for fees and expenses
shall be held in trust in one or more segregated bank accounts in the name of
the applicable Disbursing Agent for the benefit of the applicable Indenture
Trustee, accounted for separately, and paid to the Indenture Trustee and/or
returned to the Reorganized Company, as required by the agreement of the
Reorganized Company and the Indenture Trustee or the Final Order of the
Bankruptcy Court, as the case may be. The Indenture Trustees shall not attach or
set off any of their fees and expenses against distributions to Holders of Old
Senior Notes or Old Subordinated Debentures and shall not otherwise withhold or
delay any such distributions.
d. ORDINARY COURSE LIABILITIES.
Except as provided herein, holders of Administrative Claims based on
liabilities incurred in the ordinary course of the Debtors' businesses (other
than Claims of governmental units for taxes or Claims and/or penalties related
to such taxes) shall not be required to File any request for payment of such
Claims. Such Administrative Claims shall be assumed and paid by the Reorganized
Company pursuant to the terms and conditions of the particular transactions
giving rise to such Administrative Claims, without any further action by the
Holders of such Claims.
e. TAX CLAIMS.
All requests for payment of Post-Petition Tax Claims, for which no bar
date has otherwise been previously established, must be Filed on or before the
later of (i) sixty (60) days following the Effective Date, and (ii) 120 days
following the filing of the tax return for such
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taxes for such tax year or period with the applicable governmental unit. Any
Holder of any Post-Petition Tax Claim that is required to File a request for
payment of such taxes and that does not File such a Claim by the applicable bar
date shall be forever barred from asserting any such Post-Petition Tax Claim
against either of the Debtors, Reorganized Cityscape, Reorganized CSC, or any of
their respective properties, whether any such Post-Petition Tax Claim is deemed
to arise prior to, on, or subsequent to, the Effective Date.
TREATMENT OF CLAIMS AND INTERESTS.
1. CLASS 1 (BANK CLAIMS).
Class 1 consists of all Allowed Bank Claims, if any, against the Debtors
arising from the Prepetition Credit Facilities including all Claims arising
pursuant to any guarantee thereof and any pledge of assets as security therefor.
Pursuant to the Financing Orders, proceeds from the DIP Facilities have been
used, among other things, to pay all Allowed Bank Claims against the Debtors in
full in Cash. Therefore, it is contemplated that there will not be any Bank
Claims in Class 1 as of the Effective Date. However, to the extent that there
are any Bank Claims in Class 1 as of the Effective Date, (i) each such Claim
shall be deemed allowed as an Allowed Class 1 Claim in the aggregate amount
equal to the sum of (A) the unpaid principal and interest as of the Petition
Date less all payments thereon received and retained by the respective Holder
thereof during the period from the Petition Date to the Effective Date, (B) all
accrued and unpaid interest from the Petition Date through and including the
Effective Date at the rates provided for in the Financing Orders, and (C) all
other amounts due and owing as of the Effective Date in respect of the
respective Bank Claims pursuant to the Financing Orders and pursuant to the
Greenwich Facility or the CIT Facility, as the case may be, and (ii) on the
Effective Date, each Holder shall receive, on account thereof, a payment in Cash
by wire transfer equal to the amount of such Allowed Class 1 Claim. Therefore,
Class 1 is Unimpaired and, accordingly, is not entitled to vote on the Plan.
2. CLASS 2a ET SEQ. (OTHER SECURED CLAIMS).
Class 2a et seq. consists of all Allowed Secured Claims against the
Debtors other than Secured Claims in Class 1. These Classes will be further
divided into subclasses designated by letters of the alphabet (Class 2a, Class
2b, and so on) so that each Holder of any Other Secured Claim against the
Debtors is in a Class by itself, except to the extent that there are Other
Secured Claims that are substantially similar to each other and may be included
within a single Class. The Debtors shall File a schedule of each Other Secured
Claim, if any, against the Debtors on or before ten (10) days prior to the
commencement of the Confirmation Hearing. Each Allowed Other Secured Claim
against the Debtors will be treated as follows: either (a) the Plan shall leave
unaltered the legal, equitable and contractual rights to which such Claim
entitles the Holder; (b) (i) the Debtors shall cure any default with respect to
such Claim that occurred before or after the Petition Date (other than a default
of a kind specified in Section 365(b)(2) of the Bankruptcy Code), (ii) the
maturity of such Claim shall be reinstated as such maturity existed
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before any such default, (iii) the Holder of such Claim shall be compensated for
any damages incurred as a result of any reasonable reliance by the Holder on any
right to accelerate its Claim, and (iv) the legal, equitable, and contractual
rights of such Holder will not otherwise be altered; or (c) such Claim shall
receive such other treatment to which the Holder shall consent. The Holder of
each Allowed Other Secured Claim against the Debtors which is treated as set
forth in clause (a), (b) or (c) of this paragraph will be Unimpaired and will
not be entitled to vote for or against the Plan.
3. CLASS 3 (PRIORITY CLAIMS).
Class 3 consists of the Allowed Priority Claims against the Debtors.
Class 3 Claims are Unimpaired and, accordingly, Holders of Allowed Class 3
Claims are not entitled to vote on the Plan. Each Holder of an Allowed Class 3
Claim shall be entitled to receive (i) Cash equal to the amount of such Claim,
unless the Holder of such Claim and Reorganized Cityscape agree to a different
treatment, on the latest of (a) the Effective Date or as soon as practicable
thereafter, (b) the date such Claim becomes an Allowed Priority Claim, and (c)
the date that such Claim would be paid in accordance with any terms and
conditions of any agreements or understandings relating thereto between the
Debtors and the Holder of such Claim, and/or (ii) such other treatment, as
determined by the Bankruptcy Court, required to render such Claim Unimpaired.
4. CLASS 4 (SENIOR NOTE CLAIMS) AND CLASS 4a (SMALL SENIOR NOTE CLAIMS).
Class 4 consists of the Allowed Unsecured Claims against the Debtors of
Holders of Old Senior Notes (including all Claims and causes of action arising
therefrom or in connection therewith and all guarantees related thereto). The
Claim of each Holder of Old Senior Notes (including Holders of Small Senior Note
Claims) as of the Distribution Record Date shall be allowed in the aggregate
amount of the unpaid principal of such Holder's Old Senior Notes plus unpaid
interest (calculated in accordance with the provisions of the indenture
governing the Old Senior Notes) which accrued prior to the Petition Date. Class
4 is Impaired and, accordingly, Holders of Allowed Class 4 Claims are entitled
to vote on the Plan.
On the Effective Date or as soon as practicable thereafter, each Holder
of an Allowed Class 4 Claim shall receive on account of such Allowed Claim a Pro
Rata portion of 7,346,708 shares of New Common Stock (i.e., one share of New
Common Stock for every $45.26 in principal of and accrued interest on such
Holder's Old Senior Notes).
Class 4a consists of the Allowed Small Senior Note Claims. Class 4a is
Impaired and, accordingly, Holders of Allowed Class 4a Claims are entitled to
vote on the Plan. On the Effective Date or as soon as practicable thereafter,
each Holder of an Allowed Class 4a Claim shall receive on account of such
Allowed Claim Cash in an amount equal to (i) $10.00, multiplied by (ii) the
number of shares of New Common Stock that such Holder would have been entitled
to receive as a Holder of an Allowed Class 4 Claim (after giving effect to the
voluntary reduction, if any, by the Holder of a Class 4 Claim of the principal
amount of such
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Holder's Claim to $5,000.00); provided, however, that any Holder of a Class 4a
Claim may elect on a Ballot or otherwise in writing to receive the treatment
afforded by Class 4 (i.e., New Common Stock) rather than this Class 4a (i.e.,
Cash).
To the extent, if any, that the classification and manner of satisfying
Claims and Interests under the Plan do not take into consideration all
contractual, legal and equitable subordination rights that Holders of Allowed
Class 4 Claims may have against Holders of Claims or Interests with respect to
distributions made pursuant to this Plan, each Holder of an Allowed Class 4
Claim shall be deemed, upon the Effective Date, to have waived all contractual,
legal or equitable subordination rights that such Holder might have, including,
without limitation, any such rights arising out of the Old Senior Notes, the Old
Subordinated Debentures, the indentures governing such Old Securities or
otherwise.
5. CLASS 5 (GENERAL UNSECURED CLAIMS) AND CLASS 5a (SMALL UNSECURED CLAIMS).
Class 5 consists of all Allowed General Unsecured Claims against the
Debtors, including, but not limited to, Claims resulting from the rejection of
leases or executory contracts (other than such Claims that fall within Class 5a
or Class 13). Class 5 is Impaired and, accordingly, Holders of Allowed Class 5
Claims are entitled to vote on the Plan.
On the Effective Date, or as soon as practicable thereafter, each Holder
of an Allowed Class 5 Claim shall receive on account of such Allowed Claim one
share of New Common Stock for every $60.32 of such Holder's Allowed Claim.
Class 5a consists of the Allowed Small Unsecured Claims. Class 5a is
Impaired and, accordingly, Holders of Allowed Class 5a Claims are entitled to
vote on the Plan. On the Effective Date or as soon as practicable thereafter,
each Holder of an Allowed Class 5a Claim shall receive on account of such
Allowed Claim Cash in an amount equal to (i) $10.00, multipled by (ii) the
number of shares of New Common Stock that such Holder would have been entitled
to receive as a Holder of an Allowed Class 5 Claim (after giving effect to the
voluntary reduction, if any, by the Holder of a Class 5 Claim of such Holder's
Claim to $8,000.00); provided, however, that any Holder of a Class 5a Claim may
elect on a Ballot or otherwise in writing to receive the treatment afforded by
Class 5 (i.e., New Common Stock) rather than this Class 5a (i.e., Cash).
Class 5 and Class 5a also include Trade Claims. At the outset of their
chapter 11 cases, the Debtors sought and obtained Bankruptcy Court approval to
pay in the ordinary course of business all outstanding Trade Claims to trade
creditors who continue to provide normal trade credit terms to, or have
reinstated normal trade credit terms for, the Debtors or who have previously
agreed to compromise their Claims in a manner acceptable to the Debtors. To the
extent that any payments made by the Debtors to Holders of Trade Claims pursuant
to such Order resulted in such Holders' receiving greater distributions on
account of their Trade Claims than that to which they are entitled under this
Section V.B.5, any claim of the Debtors for recovery of such overpayments to
such Holders shall be assigned by the Debtors to Reorganized Cityscape or
Reorganized CSC, as applicable, pursuant to Section XI.F of this Plan.
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6. CLASS 6 (SUBORDINATED DEBENTURE CLAIMS) AND CLASS 6a (SMALL SUBORDINATED
DEBENTURE CLAIMS).
Class 6 consists of Allowed Unsecured Claims against Cityscape of Holders
of Old Subordinated Debentures (including all Claims and causes of action
arising therefrom or in connection therewith). The Claim of each Holder of Old
Subordinated Debentures (including Holders of Small Subordinated Debenture
Claims) as of the Distribution Record Date shall be allowed in the aggregate
amount of the unpaid principal of such Holder's Old Subordinated Debentures plus
unpaid interest (calculated in accordance with the provisions of the indenture
governing the Old Subordinated Debentures) which accrued prior to the Petition
Date. Class 6 is Impaired and, accordingly, Holders of Allowed Class 6 Claims
are entitled to vote on the Plan.
On the Effective Date or as soon as practicable thereafter, each Holder
of an Allowed Class 6 Claim shall receive on account of such Allowed Claim a Pro
Rata portion of 431,702 shares of New Common Stock (i.e., one share of New
Common Stock for every $316.56 in principal of and accrued interest on such
Holder's Old Subordinated Debentures); provided, however, that if Class 6 and
Class 6a do not accept the Plan, no New Common Stock (or any other property)
shall be distributed to Holders of Allowed Class 6 Claims pursuant to the Plan,
and any New Common Stock that would have been distributed to the Holders of
Class 6 Claims shall be distributed Pro Rata to the Holders of Class 4 Claims as
part of their distribution pursuant to Section V.B.4 above.
Class 6a consists of the Allowed Small Subordinated Debenture Claims.
Class 6a is Impaired and, accordingly, Holders of Allowed Class 6a Claims are
entitled to vote on the Plan. On the Effective Date or as soon as practicable
thereafter, each Holder of an Allowed Class 6a Claim shall receive on account of
such Allowed Claim Cash in an amount equal to (i) $10.00, multiplied by (ii) the
number of shares of New Common Stock that such Holder would have been entitled
to receive as a Holder of an Allowed Class 6 Claim (after giving effect to the
voluntary reduction, if any, by the Holder of a Class 6 Claim of the principal
amount of such Holder's Claim to $50,000.00); provided, however, that (i) any
Holder of a Class 6a Claim may elect on a Ballot or otherwise in writing to
receive the treatment afforded by Class 6 (i.e., New Common Stock) rather than
this Class 6a (i.e., Cash), and (ii) if Class 6 and Class 6a do not accept the
Plan, no Cash (or any other property) shall be distributed to Holders of Allowed
Class 6a Claims pursuant to the Plan.
7. CLASS 7 (OLD DEBT SECURITIES CLAIMS).
Class 7 consists of all Allowed Securities Claims on account of Old Debt
against the Debtors. The Holders of Allowed Class 7 Claims, if any, shall not
receive or retain any interest or property under the Plan and, therefore, Class
7 is Impaired and is deemed to have rejected the Plan. Accordingly, votes of
Holders of Allowed Class 7 Claims are not being solicited. The Debtors are not
aware of any Class 7 Claims. If there are any Allowed Class 7 Claims, the
Debtors intend to seek to confirm the Plan pursuant to the "cramdown" provisions
of Section 1129(b) of the Bankruptcy Code.
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8. CLASS 8 (INTERESTS OF HOLDERS OF OLD SERIES A PREFERRED STOCK).
Class 8 consists of the Allowed Interests of Holders of Old Series A
Preferred Stock. The Holders of Allowed Class 8 Interests shall not receive or
retain any interest or property under the Plan and, therefore, Class 8 is
Impaired and is deemed to have rejected the Plan. Accordingly, votes of Holders
of Allowed Class 8 Interests are not being solicited. The Debtors intend to seek
to confirm the Plan as to Class 8 pursuant to the "cramdown" provisions of
Section 1129(b) of the Bankruptcy Code.
9. CLASS 9 (OLD SERIES A PREFERRED STOCK SECURITIES CLAIMS).
Class 9 consists of all Allowed Securities Claims on account of Old
Series A Preferred Stock against the Debtors. The Holders of Allowed Class 9
Claims, if any, shall not receive or retain any interest or property under the
Plan and, therefore, Class 9 is Impaired and is deemed to have rejected the
Plan. Accordingly, votes of Holders of Allowed Class 9 Claims are not being
solicited. The Debtors are not aware of any Class 9 Claims. If there are any
Allowed Class 9 Claims, the Debtors intend to seek to confirm the Plan pursuant
to the "cramdown" provisions of Section 1129(b) of the Bankruptcy Code.
10. CLASS 10 (INTERESTS OF HOLDERS OF OLD SERIES B PREFERRED STOCK).
Class 10 consists of all Allowed Interests of Holders of Old Series B
Preferred Stock. The Holders of Allowed Class 10 Interests shall not receive or
retain any interest or property under the Plan and, therefore, Class 10 is
Impaired and is deemed to have rejected the Plan. Accordingly, votes of Holders
of Allowed Class 10 Interests are not being solicited. The Debtors intend to
seek to confirm the Plan as to Class 10 pursuant to the "cramdown" provisions of
Section 1129(b) of the Bankruptcy Code.
11. CLASS 11 (OLD SERIES B PREFERRED STOCK SECURITIES CLAIMS).
Class 11 consists of all Allowed Securities Claims on account of Old
Series B Preferred Stock against the Debtors. The Holders of Allowed Class 11
Claims, if any, shall not receive or retain any interest or property under the
Plan and, therefore, Class 11 is Impaired and is deemed to have rejected the
Plan. Accordingly, votes of Holders of Allowed Class 11 Claims are not being
solicited. The Debtors are not aware of any Class 11 Claims. If there are any
Allowed Class 11 Claims, the Debtors intend to seek to confirm the Plan pursuant
to the "cramdown" provisions of Section 1129(b) of the Bankruptcy Code.
12. CLASS 12 (INTERESTS OF HOLDERS OF OLD CITYSCAPE COMMON STOCK).
Class 12 consists of the Allowed Interests of Holders of Old Cityscape
Common Stock. The Holders of Allowed Class 12 Interests shall not receive or
retain any interest or property under the Plan and, therefore, Class 12 is
Impaired and is deemed to have rejected the
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Plan. Accordingly, votes of Holders of Allowed Class 12 Interests are not being
solicited. The Debtors intend to seek to confirm the Plan as to Class 12
pursuant to the "cramdown" provisions of Section 1129(b) of the Bankruptcy Code.
13. CLASS 13 (INTERESTS OF HOLDERS OF OLD STOCK RIGHTS IN CITYSCAPE AND ALL
CLAIMS ARISING OUT OF SUCH OLD STOCK RIGHTS).
Class 13 consists of all Allowed Interests in Cityscape of Holders of Old
Stock Rights and all Allowed Claims arising out of any such Old Stock Rights,
including, without limitation, all Claims arising out of the rejection of Old
Stock Rights. The Holders of Allowed Class 13 Interests and Claims shall not
receive or retain any interest or property under the Plan and, therefore, Class
13 is Impaired and is deemed to have rejected the Plan. Accordingly, votes of
Holders of Allowed Class 13 Interests and Claims are not being solicited. The
Debtors intend to seek to confirm the Plan as to Class 13 pursuant to the
"cramdown" provisions of Section 1129(b) of the Bankruptcy Code.
14. CLASS 14 (OLD CITYSCAPE COMMON STOCK AND OLD WARRANT SECURITIES CLAIMS).
Class 14 consists of all Allowed Securities Claims on account of Old
Cityscape Common Stock or Old Warrants against the Debtors. The Holders of
Allowed Class 14 Claims, if any, shall not receive or retain any interest or
property under the Plan and, therefore, Class 14 is Impaired and is deemed to
have rejected the Plan. Accordingly, votes of Holders of Allowed Class 14 Claims
are not being solicited. If there are any Allowed Class 14 Claims, the Debtors
intend to seek to confirm the Plan pursuant to the "cramdown" provisions of
Section 1129(b) of the Bankruptcy Code.
MODIFICATION OF TREATMENT OF CLAIMS.
The Debtors reserve for themselves and the Reorganized Company the right
to modify the treatment of any Allowed Claim or Interest in any manner adverse
only to the Holder of such Claim or Interest at any time after the Effective
Date upon the consent of the creditor or interest holder whose Allowed Claim or
Interest, as applicable, is being adversely affected.
VI.
DISTRIBUTIONS UNDER THE PLAN
DISBURSING AGENT.
Reorganized Cityscape, Reorganized CSC, or such Person(s) as the Debtors
may employ in their sole discretion, will act as Disbursing Agent under the
Plan. The Disbursing Agent shall make all distributions of Cash and New Common
Stock required to be distributed
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under the applicable provisions of the Plan. Any Disbursing Agent may employ or
contract with other entities to assist in or make the distributions required by
the Plan. Each Disbursing Agent will serve without bond, and each Disbursing
Agent, other than Reorganized Cityscape or Reorganized CSC, will receive,
without further Bankruptcy Court approval, reasonable compensation for
distribution services rendered pursuant to the Plan and reimbursement of
reasonable out-of-pocket expenses incurred in connection with such services from
the Reorganized Company on terms acceptable to the Reorganized Company.
TIMING OF DISTRIBUTIONS.
Except as otherwise provided in this Plan with respect to any particular
Class or Claim, property to be distributed hereunder on account of Allowed
Claims and Allowed Interests in an Impaired Class (a) shall be distributed on
the Effective Date or as soon as practicable thereafter to each Holder of an
Allowed Claim or an Allowed Interest in that Class that is an Allowed Claim or
an Allowed Interest as of the Effective Date, and (b) shall be distributed to
each Holder of an Allowed Claim or an Allowed Interest of that Class that
becomes an Allowed Claim or Allowed Interest after the Effective Date, as soon
as practicable after the Order of the Bankruptcy Court allowing such Claim or
Interest becomes a Final Order. Except as otherwise provided in this Plan with
respect to any particular Class or Claim, property to be distributed under the
Plan on account of Claims in a Class that are not Impaired or on account of an
Administrative Claim shall be distributed on the later of (i) the Effective Date
or as soon as practicable thereafter, or if any Claim is not an Allowed Claim as
of the Effective Date, on the date the Order allowing such Claim becomes a Final
Order or as soon as practicable thereafter, and (ii) the date on which the
distribution to the Holder of the Claim would have been due and payable in the
ordinary course of business or under the terms of the Claim.
METHODS OF DISTRIBUTIONS.
1. CASH PAYMENTS.
Cash payments made pursuant to the Plan will be in U.S. dollars. Cash
payments to foreign creditors may be made, at the option of the Debtors or the
Reorganized Company, in such funds and by such means as are necessary or
customary in a particular foreign jurisdiction. Cash payments made pursuant to
the Plan in the form of checks issued by Reorganized Cityscape or Reorganized
CSC shall be null and void if not cashed within 90 days of the date of the
issuance thereof. Requests for reissuance of any check shall be made directly to
the Disbursing Agent as set forth in Section VI.G below. All payments in respect
of Bank Claims shall be by wire transfer.
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2. ISSUANCE AND TRANSFERS OF NEW COMMON STOCK.
Notwithstanding any other provision of the Plan, only whole numbers of
shares of New Common Stock will be issued or transferred, as the case may be,
pursuant to the Plan. When any distribution on account of an Allowed Claim
pursuant to the Plan would otherwise result in the issuance or transfer of a
number of shares of New Common Stock that is not a whole number, the actual
distribution of such New Common Stock will be rounded to the next higher or
lower whole number as follows: (a) fractions of 1/2 or greater will be rounded
to the next higher whole number and (b) fractions of less than 1/2 will be
rounded to the next lower whole number. The total number of shares of New Common
Stock to be distributed to a Class of Claims will be adjusted as necessary to
account for the rounding provided for in this Section. No consideration will be
provided in lieu of fractional shares that are rounded down (including in
connection with calculating the amount of Cash that a Holder of an Allowed Class
4a, 5a or 6a Claim is entitled to receive).
3. COMPLIANCE WITH TAX REQUIREMENTS.
In connection with the distributions set forth herein, to the extent
applicable, the Disbursing Agent shall comply with all tax withholding and
reporting requirements imposed on it by any governmental unit, and all
distributions pursuant to this Plan shall be subject to such withholding and
reporting requirements. The Disbursing Agent shall be authorized to take any and
all actions that may be necessary or appropriate to comply with such withholding
and reporting requirements.
Notwithstanding any other provision contained herein: (i) each Holder of
an Allowed Claim that is to receive a distribution of Cash or New Common Stock
pursuant to the Plan shall have sole and exclusive responsibility for the
satisfaction and payment of any tax obligations imposed by any governmental
unit, including income, withholding and other tax obligations, on account of
such distribution; and (ii) no distribution shall be made to or on behalf of
such Holder pursuant to the Plan unless and until such Holder has made
arrangements reasonably satisfactory to the Disbursing Agent for the payment and
satisfaction of such tax obligations. Any Cash or New Common Stock to be
distributed pursuant to the Plan will, pending the implementation of such
arrangements, be treated as an undeliverable distribution pursuant to Section
V.G of the Plan.
PRO RATA DISTRIBUTION.
Where the Plan provides for Pro Rata distribution, the property to be
distributed under this Plan shall be divided Pro Rata among the Holders of
Allowed Claims of the relevant Class.
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DISTRIBUTION RECORD DATE.
As of the close of business on the Distribution Record Date, the transfer
registers for the Voting Securities maintained by the Debtors, or their
respective agents, will be closed. The Disbursing Agent and its respective
agents and the Indenture Trustees will have no obligation to recognize the
transfer of any Voting Securities occurring after the Distribution Record Date,
and will be entitled for all purposes relating to this Plan to recognize and
deal only with those Holders of record as of the close of business on the
Distribution Record Date.
SURRENDER OF CANCELLED VOTING SECURITIES AND EXCHANGE FOR NEW SECURITIES.
1. TENDER OF VOTING SECURITIES.
The mechanism by which Holders of Allowed Claims in Class 4 or 6
surrender their Voting Securities and exchange such Voting Securities for New
Common Stock shall be determined based upon the manner in which the Voting
Securities were issued and the mode in which they are held, as set forth below.
a. VOTING SECURITIES HELD IN BOOK-ENTRY FORM
Voting Securities held in book-entry form through bank and broker nominee
accounts shall be mandatorily exchanged for the New Common Stock through the
facilities of such nominees and the systems of the applicable securities
depository or Clearing System (as defined below in Section VI.F.2) holding such
Voting Securities on behalf of the brokers or banks.
b. VOTING SECURITIES IN PHYSICAL, REGISTERED, CERTIFICATED FORM
Each Holder of Voting Securities in physical, registered, certificated
form will be required, promptly after the Confirmation Date, to deliver its
physical certificates (the "TENDERED CERTIFICATES") to the Disbursing Agent,
accompanied by a properly executed letter of transmittal, to be distributed by
the Disbursing Agent or Information Agent promptly after the Confirmation Date
and containing such representations and warranties as are described in the
Disclosure Statement (a "LETTER OF TRANSMITTAL").
Any New Common Stock to be distributed pursuant to this Plan on account
of any Allowed Claim in Class 4 or 6 represented by a Voting Security held in
physical, registered, certificated form shall, pending such surrender, be
treated as an undeliverable distribution pursuant to Section VI.G below.
Signatures on a Letter of Transmittal must be guaranteed by an Eligible
Institution (as defined below), unless the Voting Securities tendered pursuant
thereto are tendered for the
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account of an Eligible Institution. If signatures on a Letter of Transmittal are
required to be guaranteed, such guarantees must be by a member firm of a
registered national securities exchange in the United States, a member of the
National Association of Securities Dealers, Inc., or a commercial bank or trust
company having an office or a correspondent in the United States (each of which
is an "ELIGIBLE INSTITUTION"). If Voting Securities are registered in the name
of a Person other than the Person signing the Letter of Transmittal, the Voting
Securities, in order to be tendered validly, must be endorsed or accompanied by
a properly completed power of authority, with signature guaranteed by an
Eligible Institution.
All questions as to the validity, form, eligibility (including time of
receipt), and acceptance of Letters of Transmittal and Tendered Certificates
will be resolved by the applicable Disbursing Agent, whose determination shall
be final and binding, subject only to review by the Bankruptcy Court upon
application with due notice to any affected parties in interest. Cityscape
reserves the right, on behalf of itself and the Disbursing Agent, to reject any
and all Letters of Transmittal and Tendered Certificates not in proper form, or
Letters of Transmittal and Tendered Certificates, the Disbursing Agent's
acceptance of which would, in the opinion of the Disbursing Agent or its
counsel, be unlawful.
c. VOTING SECURITIES IN BEARER FORM HELD THROUGH A BROKER OR BANK
PARTICIPANT IN A CLEARING SYSTEM
Voting Securities held in bearer form through a broker or bank
participant in a Clearing System (as defined below in Section VI.F.2) shall be
mandatorily exchanged for the New Common Stock through the facilities of such
nominees and the securities depository holding such Voting Securities on behalf
of the broker or bank.
2. DELIVERY OF NEW COMMON STOCK IN EXCHANGE FOR VOTING SECURITIES.
On the Effective Date, Reorganized Cityscape or the Disbursing Agent
shall issue and authenticate the New Common Stock, and shall apply to DTC to
make the New Common Stock eligible for deposit at DTC. With respect to Holders
of Voting Securities who hold such Voting Securities through nominee accounts at
bank and broker participants in DTC, Euroclear and Cedel (collectively, the
"CLEARING SYSTEMS"), the Disbursing Agent shall deliver the New Common Stock to
DTC or to the registered address specified by the Clearing Systems. The Clearing
System (or its depositary) shall return the applicable Voting Securities to the
Disbursing Agent for cancellation.
The Disbursing Agent will request that DTC effect a mandatory exchange of
the applicable Voting Securities for the New Common Stock by crediting the
accounts of its participants with the New Common Stock in exchange for the
Voting Securities. On the effective date of such exchange, each DTC participant
will effect a similar exchange for accounts of the beneficial owners holding
Voting Securities through such firms. Neither the Reorganized Company nor the
Disbursing Agent shall have any responsibility or liability in connection with
the Clearing Systems' or such participants' effecting, or failure to effect,
such exchanges.
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Holders of Voting Securities holding such Voting Securities outside a
Clearing System will be required to surrender their Voting Securities by
delivering them to the Disbursing Agent, along with properly executed Letters of
Transmittal (as described above in Section VI.F.1.b). The Disbursing Agent shall
forward New Common Stock on account of such Voting Securities to such Holders.
3. SPECIAL PROCEDURES FOR LOST, STOLEN, MUTILATED OR DESTROYED INSTRUMENTS.
Any Holder of a Claim or an Interest evidenced by an Instrument that has
been lost, stolen, mutilated or destroyed will, in lieu of surrendering such
Instrument, deliver to the Disbursing Agent: (a) an affidavit of loss or other
evidence reasonably satisfactory to the Disbursing Agent of the loss, theft,
mutilation or destruction; and (b) such security or indemnity as may reasonably
be required by the Disbursing Agent to hold the Disbursing Agent harmless from
any damages, liabilities or costs incurred in treating such individual as a
Holder of an Instrument. Upon compliance with this Section, the Holder of a
Claim or Interest evidenced by any such lost, stolen, mutilated or destroyed
Instrument shall, for all purposes under the Plan and notwithstanding anything
to the contrary contained herein, be deemed to have surrendered such Instrument.
4. FAILURE TO SURRENDER CANCELLED INSTRUMENT.
Any Holder of Voting Securities holding such Voting Securities in
physical, registered or certificated form who has not properly completed and
returned to the Disbursing Agent a Letter of Transmittal, together with the
applicable Tendered Certificates, within two years after the Effective Date
shall have its claim for a distribution pursuant to the Plan on account of such
Instrument discharged and shall be forever barred from asserting any such claim
against Reorganized Cityscape, Reorganized CSC or their properties. In such
cases, any New Common Stock held for distribution on account of such claim shall
be disposed of pursuant to the provisions of Section VI.G hereof.
DELIVERY OF DISTRIBUTIONS; UNDELIVERABLE OR UNCLAIMED DISTRIBUTIONS.
Any Person that is entitled to receive a Cash distribution under this
Plan but that fails to cash a check within 90 days of its issuance shall be
entitled to receive a reissued check from Reorganized Cityscape or Reorganized
CSC, as the case may be, for the amount of the original check, without any
interest, if such Person requests the Disbursing Agent to reissue such check and
provides the Disbursing Agent with such documentation as the Disbursing Agent
reasonably requests to verify that such Person is entitled to such check, prior
to the second anniversary of the Effective Date. If a Person fails to cash a
check within 90 days of its issuance and fails to request reissuance of such
check prior to the second anniversary of the Effective Date, such Person shall
not be entitled to receive any distribution under this Plan.
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Subject to Bankruptcy Rule 9010, all distributions to any Holder of an
Allowed Claim or an Allowed Interest shall be made to the address of such Holder
on the books and records of the Debtors or their agents, unless either Debtor,
Reorganized Cityscape or Reorganized CSC, as applicable, has been notified in
writing of a change of address. If the distribution to any Holder of an Allowed
Claim or Allowed Interest is returned to a Disbursing Agent as undeliverable,
such Disbursing Agent shall use reasonable efforts to determine the current
address of such Holder, but no distribution shall be made to such Holder unless
and until the applicable Disbursing Agent has determined or is notified in
writing of such Holder's then-current address, at which time such distribution
shall be made to such Holder without interest. Undeliverable distributions shall
remain in the possession of the applicable Disbursing Agent pursuant to Section
VI.A of the Plan until such time as a distribution becomes deliverable.
Undeliverable Cash shall be held in trust in segregated bank accounts in the
name of the applicable Disbursing Agent for the benefit of the potential
claimants of such funds, and will be accounted for separately. Any Disbursing
Agent holding undeliverable Cash shall invest such Cash in a manner consistent
with the Debtors' investment and deposit guidelines. Any interest paid, and any
other amounts earned, with respect to such undeliverable Cash pending its
distribution in accordance with this Plan shall be property of Reorganized
Cityscape or Reorganized CSC, as the case may be. Undeliverable New Common Stock
will be held in trust for the benefit of the potential claimants of such
securities by the applicable Disbursing Agent in principal amounts or numbers of
shares or warrants sufficient to fund the unclaimed amounts of such securities
and shall be accounted for separately. Any unclaimed or undeliverable
distributions (including Cash and New Common Stock) shall be deemed unclaimed
property under Section 347(b) of the Bankruptcy Code at the expiration of two
years after the Effective Date and, after such date, all such unclaimed property
shall revert to Reorganized Cityscape or Reorganized CSC, as the case may be,
and the Claim or Interest of any Holder with respect to such property shall be
discharged and forever barred.
Pending the distribution of any New Common Stock pursuant to the Plan,
the Disbursing Agent shall cause the New Common Stock held by it in its capacity
as Disbursing Agent to be: (A) represented in person or by proxy at each meeting
of the stockholders of Reorganized Cityscape; and (B) voted with respect to any
matter of Reorganized Cityscape proportionally with the votes cast by other
stockholders of Reorganized Cityscape.
PROCEDURES FOR TREATING DISPUTED CLAIMS UNDER PLAN OF REORGANIZATION.
1. DISPUTED CLAIMS AND OBJECTIONS TO CLAIMS AND INTERESTS.
a. PROCESS.
Except insofar as a Claim or Interest is allowed hereunder, Reorganized
Cityscape and Reorganized CSC shall be entitled and reserve the right to object
to Claims and Interests. Except as otherwise provided in Section VI.H.3 below
and except as otherwise ordered by the
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Bankruptcy Court, objections to any Claim or Interest, including, without
limitation, Administrative Claims, shall be Filed and served upon the Holder of
such Claim or Interest no later than the later of (a) 60 days after the
Effective Date, and (b) 60 days after a proof of claim, request for payment of
such Claim or proof of interest is Filed, unless such period is extended by the
Bankruptcy Court, which extension may be granted on an ex parte basis without
notice or hearing. After the Confirmation Date, only the Debtors, Reorganized
Cityscape and Reorganized CSC shall have the authority to File, settle,
compromise, withdraw or litigate to judgment objections to Claims and Interests.
From and after the Confirmation Date, the Debtors, Reorganized Cityscape and
Reorganized CSC may settle or compromise any Disputed Claim or Disputed Interest
without approval of the Bankruptcy Court. Except as (i) specified otherwise
herein, or (ii) ordered by the Bankruptcy Court, all Disputed Claims or Disputed
Interests shall be resolved by the Bankruptcy Court.
Among other things, either Debtor may elect, at its sole option, to
object or seek estimation under Section 502 of the Bankruptcy Code with respect
to any proof of claim filed by or on behalf of a Holder of a Claim or any proof
of interest filed by or on behalf of a Holder of an Interest.
b. TORT CLAIMS.
All Tort Claims are Disputed Claims. Any unliquidated Tort Claim that is
not otherwise settled or resolved pursuant to Section VI.H.1.a above shall be
determined and liquidated in the Bankruptcy Court. Any Tort Claim determined and
liquidated pursuant to a judgment obtained in accordance with this Section
VI.H.1.b that is no longer subject to appeal or other review shall be deemed to
be an Allowed Claim in Class 5 or Class 5a in such liquidated amount and
satisfied in accordance with this Plan. Nothing contained in this Section
VI.H.1.b shall constitute or be deemed a waiver of any claim, right or cause of
action that the Debtors or the Reorganized Company may have against any Person
in connection with or arising out of any Tort Claim, including, without
limitation, any rights under Section 157(b) of title 28, United States Code.
2. PROFESSIONALS, ADMINISTRATIVE CLAIMS, TRADE CLAIMS AND EMPLOYEE CLAIMS.
Except as otherwise ordered by the Bankruptcy Court, objections to Claims
of professionals shall be governed by the provisions of Section V.A.3.b hereof.
Objections to Administrative Claims based upon ordinary course liabilities,
Trade Claims and Employee Claims shall be governed by applicable law.
3. NO DISTRIBUTIONS PENDING ALLOWANCE.
Notwithstanding any other provisions of this Plan, no payments or
distributions will be made on account of a Disputed Claim or a Disputed Interest
until such Claim or Interest becomes an Allowed Claim or Allowed Interest.
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4. DISTRIBUTIONS ON ACCOUNT OF DISPUTED CLAIMS AND INTERESTS ONCE THEY ARE
ALLOWED.
Within 30 days after the end of each calendar quarter following the
Effective Date, the applicable Disbursing Agent will make all distributions on
account of any Disputed Claim or Disputed Interest that has become an Allowed
Claim or Allowed Interest during the preceding calendar quarter. Such
distributions will be made pursuant to the provisions of the Plan governing the
applicable Class. Holders of Disputed Claims or Disputed Interests that are
ultimately allowed will also be entitled to receive, on the basis of the amount
ultimately allowed: (i) matured and payable interest, if any, at the rate
provided for the Class to which such Claim belongs; and (ii) any dividends or
other payments made on account of New Common Stock, if any, provided to the
Class to which such Claim or Interest belongs, but held pending distribution.
SETOFFS.
Except with respect to Claims allowed pursuant to the Plan or claims of
the Debtors, Reorganized Cityscape or Reorganized CSC released pursuant to the
Plan or any contract, instrument, release, indenture or other agreement or
document created in connection with the Plan, the Debtors, Reorganized Cityscape
or Reorganized CSC, as the case may be, may, pursuant to Section 553 of the
Bankruptcy Code or applicable nonbankruptcy law, set off against any Allowed
Claim and the distributions to be made pursuant to the Plan on account of such
Claim (before any distribution is made on account of such Claim), the claims,
rights and causes of action of any nature that the Debtors, Reorganized
Cityscape or Reorganized CSC may hold against the Holder of such Allowed Claim;
provided, however, that neither the failure to effect such a setoff nor the
allowance of any Claim hereunder shall constitute a waiver or release by the
Debtors, Reorganized Cityscape or Reorganized CSC of any such claims, rights and
causes of action that the Debtors, Reorganized Cityscape or Reorganized CSC may
possess against such Holder.
TERMINATION OF SUBORDINATION.
The classification and manner of satisfying all Claims and Interests
under the Plan and the distributions hereunder take into consideration all
contractual, legal and equitable subordination rights, whether arising under any
agreement, general principles of equitable subordination, Section 510 of the
Bankruptcy Code or otherwise, that a Holder of a Claim or Interest may have
against other Claim or Interest Holders with respect to any distribution made
pursuant to this Plan. On the Effective Date, all contractual, legal or
equitable subordination rights that such Holder may have with respect to any
distribution to be made pursuant to this Plan shall be deemed to be waived,
discharged and terminated, and all actions related to the enforcement of such
subordination rights will be permanently enjoined. Accordingly, distributions
pursuant to the Plan to Holders of Allowed Claims and Allowed Interests shall
not be subject to payment to a beneficiary of such terminated subordination
rights, or to levy, garnishment, attachment or other legal process by any
beneficiary of such terminated subordination rights.
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VII.
TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
ASSUMPTIONS.
To the extent that any of the contracts listed on a schedule to be Filed
and served on the parties thereto prior to the Confirmation Hearing is an
executory contract, the Debtors will assume each such contract pursuant to
Section 365 of the Bankruptcy Code on the Effective Date. Listing a contract or
lease on such schedule does not constitute an admission by the Debtors,
Reorganized Cityscape or Reorganized CSC that such contract or lease is an
executory contract or unexpired lease or that the Debtors, Reorganized Cityscape
or Reorganized CSC has any liability thereunder. The Confirmation Order will
constitute an Order of the Bankruptcy Court approving the assumptions described
in this Section VII.A, pursuant to Section 365 of the Bankruptcy Code, as of the
Effective Date.
CURE OF DEFAULTS IN CONNECTION WITH ASSUMPTION.
Any monetary amounts by which each executory contract and unexpired lease
to be assumed pursuant to the Plan is in default will be satisfied, pursuant to
Section 365(b)(l) of the Bankruptcy Code, at the option of the Debtors,
Reorganized Cityscape or Reorganized CSC, as the case may be: (a) by payment of
the default amount in Cash on the Effective Date or as soon as practicable
thereafter; or (b) on such other terms as are agreed to by the parties to such
executory contract or unexpired lease.
If there is a dispute regarding: (i) the amount of any cure payments;
(ii) the ability of Reorganized Cityscape or Reorganized CSC to provide
"adequate assurance of future performance" (within the meaning of Section 365 of
the Bankruptcy Code) under the contract or lease to be assumed; or (iii) any
other matter pertaining to assumption, the cure payments required by Section
365(b)(l) of the Bankruptcy Code will be made following the entry of a Final
Order resolving the dispute and approving the assumption.
REJECTIONS.
Except as otherwise provided in (i) Section VII.A. above, (ii) any
previous Orders authorizing the assumption or rejection of any of the Debtors'
executory contracts or unexpired leases, or (iii) any contract, instrument,
release or other agreement or document entered into in connection with the Plan,
on the Effective Date, pursuant to Section 365 of the Bankruptcy Code, the
Debtors will reject each of the executory contracts and unexpired leases to
which either of them is a party. The Debtors will File a list of executory
contracts and unexpired leases to be rejected pursuant to the Plan, and will
serve such list on the parties to such contracts and unexpired leases and the
Office of the United States Trustee prior to the Confirmation Hearing.
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The Confirmation Order shall constitute an Order of the Bankruptcy Court
approving such rejections, pursuant to Section 365 of the Bankruptcy Code, as of
the Effective Date.
BAR DATE FOR REJECTION DAMAGES.
If the rejection of an executory contract or unexpired lease pursuant to
the preceding Section VII.C gives rise to a Claim by the other party or parties
to such contract or lease, such Claim shall be forever barred and shall not be
enforceable against the Debtors, Reorganized Cityscape, Reorganized CSC, their
successors or properties unless (a) a stipulation with respect to the amount and
nature of such Claim has been entered into by either of the Debtors, Reorganized
Cityscape or Reorganized CSC, as applicable, and the Holder of such Claim in
connection with the rejection of such executory contract or unexpired lease, or
(b) a proof of Claim is Filed and served on Reorganized Cityscape or Reorganized
CSC, as the case may be, and counsel for Reorganized Cityscape or Reorganized
CSC, as the case may be, within 30 days after the Effective Date or such earlier
date as established by the Bankruptcy Court. Unless otherwise ordered by the
Bankruptcy Court, all Allowed Claims arising from the rejection of executory
contracts and unexpired leases shall be treated as Claims in Class 5, 5a or 13,
as applicable.
VIII.
ACCEPTANCE OR REJECTION OF THIS PLAN
VOTING CLASSES.
The Holders of Allowed Claims and Interests in Classes 4, 4a, 5, 5a, 6
and 6a are Impaired and shall receive distributions under the Plan, and shall be
entitled to vote to accept or reject the Plan.
PRESUMED ACCEPTANCES OF PLAN.
The Holders of Allowed Claims in Classes 1, 2a et seq. and 3 are not
Impaired under the Plan and, therefore, are conclusively presumed to accept the
Plan.
PRESUMED REJECTIONS OF PLAN.
Classes 7, 8, 9, 10, 11, 12, 13 and 14 will not be entitled to receive or
retain any property under this Plan, and pursuant to Section 1126(g) of the
Bankruptcy Code, are deemed not to have accepted this Plan.
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VOTING INSTRUCTIONS.
Each Holder of an Allowed Claim entitled to vote on the Plan will receive
a Ballot. The Voting Record Date for purposes of Classes 4, 4a, 6 and 6a is
April 27, 1999. The Ballot will contain two boxes for each Class entitled to
vote on the Plan, one box indicating acceptance of the Plan and the other box
indicating rejection of the Plan. Holders of Allowed Claims who elect to vote on
the Plan must mark one or the other box pursuant to the instructions contained
on the Ballot. Any executed Ballot that does not indicate acceptance or
rejection of the Plan will be counted as an acceptance of the Plan.
VOTING DEADLINE AND EXTENSIONS.
THE VOTING DEADLINE IS 5:00 P.M. NEW YORK CITY TIME ON JUNE 1, 1999.
Ballots must be received by the "VOTING AGENT" designated in the Ballots at the
address set forth on the applicable Ballot. To be counted for purposes of voting
on the Plan, all of the information requested on the applicable Ballot must be
provided.
CONFIRMABILITY OF PLAN AND CRAMDOWN.
In the event at least one Impaired Class of Claims votes to accept the
Plan (and at least one Impaired Class either votes to reject the Plan or is
deemed to have rejected the Plan), the Debtors reserve the right to request that
the Bankruptcy Court confirm the Plan under the "cramdown" provisions of Section
1129(b) of the Bankruptcy Code. At a minimum, the Debtors will request
confirmation of the Plan over the deemed rejection of Classes 7, 8, 9, 10, 11,
12, 13 and 14 under the Plan.
IX.
MEANS FOR EXECUTION AND IMPLEMENTATION OF THE PLAN
CORPORATE STRUCTURE.
On the Effective Date, Cityscape will become Reorganized Cityscape, CSC
will become Reorganized CSC, and Reorganized CSC will be a wholly-owned
subsidiary of Reorganized Cityscape.
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CORPORATE ACTION.
1. CANCELLATION OF OLD SECURITIES AND RELATED AGREEMENTS.
On the Effective Date, all securities, instruments and agreements
governing any Claims or Interests Impaired hereby, including, without
limitation, (i) the Old Securities, (ii) the indentures governing the Old Debt,
(iii) the agreements governing the Old Warrants and (iv) any security,
instrument or agreement entered into in connection with any of the foregoing, in
each case shall be deemed terminated, cancelled and extinguished, and except as
otherwise provided herein, the Debtors, on the one hand, and the Indenture
Trustees, on the other hand, shall be released from any and all obligations
under the applicable indenture except with respect to the payments required to
be made to each such Indenture Trustee as provided herein or with respect to
such other rights of such Indenture Trustee that, pursuant to the terms of such
indenture, survive the termination of such indenture. Termination of the
indentures shall not impair the rights of the Holders of Old Debt to receive
distributions on account of Old Debt pursuant to this Plan.
2. CERTIFICATE OF INCORPORATION AND BYLAWS FOR REORGANIZED CITYSCAPE.
On the Effective Date, Reorganized Cityscape shall be deemed to have
adopted the Reorganized Cityscape Certificate of Incorporation and the
Reorganized Cityscape Bylaws pursuant to applicable non-bankruptcy law and
Section 1123(a)(5)(I) of the Bankruptcy Code. The Reorganized Cityscape
Certificate of Incorporation will, among other provisions: (i) authorize the
issuance of the New Common Stock; and (ii) prohibit the issuance of nonvoting
equity securities to the extent required by Section 1123(a)(6) of the Bankruptcy
Code. The Reorganized Cityscape Certificate of Incorporation and the Reorganized
Cityscape Bylaws (forms of which are attached hereto as Exhibits "A" and "B,"
respectively) will become effective upon the last to occur of the following: (1)
Confirmation of the Plan; (2) the occurrence of the Effective Date; and (3) the
filing with the Delaware Secretary of State of the Reorganized Cityscape
Certificate of Incorporation.
3. CERTIFICATE OF INCORPORATION AND BYLAWS FOR REORGANIZED CSC.
On the Effective Date, Reorganized CSC shall be deemed to have adopted
the Reorganized CSC Certificate of Incorporation and the Reorganized CSC Bylaws
pursuant to applicable non-bankruptcy law and Section 1123(a)(5)(I) of the
Bankruptcy Code. The Reorganized CSC Certificate of Incorporation will, among
other provisions, prohibit the issuance of nonvoting equity securities to the
extent required by Section 1123(a)(6) of the Bankruptcy Code. The Reorganized
CSC Certificate of Incorporation and the Reorganized CSC Bylaws (forms of which
are attached hereto as Exhibits "C" and "D," respectively) will become effective
upon the last to occur of the following: (1) Confirmation of the Plan; (2) the
occurrence of the Effective Date; and (3) the filing with the New York Secretary
of State of the Reorganized CSC Certificate of Incorporation.
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4. DIRECTORS AND MANAGEMENT OF REORGANIZED CITYSCAPE.
As of the Effective Date, the Persons identified in the Disclosure
Statement will serve as the initial members of the Board of Directors of
Reorganized Cityscape. Such Persons shall be deemed elected to the Board of
Directors, and such elections shall be deemed effective as of the Effective
Date, without any requirement of further action by stockholders of the Debtors
or Reorganized Cityscape. The initial officers of Reorganized Cityscape shall be
selected by the Board of Directors of Reorganized Cityscape and, to the extent
such officers have been selected, their names have been disclosed in the
Disclosure Statement or shall be disclosed in a schedule to be Filed with the
Bankruptcy Court on or prior to the Confirmation Date. Subject to any
requirement of Bankruptcy Court approval under Section 1129(a)(5) of the
Bankruptcy Code, those persons identified or designated as directors and
officers of Reorganized Cityscape in the Disclosure Statement or on any schedule
to be Filed with the Bankruptcy Court on or prior to the Confirmation Date shall
assume their offices as of the Effective Date and shall continue to serve in
such capacities thereafter, pending further action of the Board of Directors or
stockholders of Reorganized Cityscape in accordance with the Reorganized
Cityscape Bylaws, Reorganized Cityscape Certificate of Incorporation and
applicable state law.
5. DIRECTORS AND MANAGEMENT OF REORGANIZED CSC.
As of the Effective Date, the Persons identified have been disclosed in
the Disclosure Statement will serve as the initial members of the Board of
Directors of Reorganized CSC. Such Persons shall be deemed elected to the Board
of Directors, and such elections shall be deemed effective as of the Effective
Date, without any requirement of further action by stockholders of the Debtors
or Reorganized CSC. The initial officers of Reorganized CSC shall be selected by
the Board of Directors of Reorganized CSC and, to the extent such officers have
been selected, their names have been disclosed in the Disclosure Statement or
shall be disclosed in a schedule to be Filed with the Bankruptcy Court on or
prior to the Confirmation Date. Subject to any requirement of Bankruptcy Court
approval under Section 1129(a)(5) of the Bankruptcy Code, those persons
identified or designated as directors and officers of Reorganized CSC in the
Disclosure Statement or on any schedule to be Filed with the Bankruptcy Court on
or prior to the Confirmation Date shall assume their offices as of the Effective
Date and shall continue to serve in such capacities thereafter, pending further
action of the Board of Directors or the stockholder of Reorganized CSC in
accordance with the Reorganized CSC Bylaws, Reorganized CSC Certificate of
Incorporation and applicable state law.
IMPLEMENTATION.
The Debtors, Reorganized Cityscape and Reorganized CSC are hereby
authorized and directed to take all necessary steps, and perform all necessary
acts, to consummate the terms and conditions of the Plan on the Effective Date.
On or before the Effective Date, the Debtors may file with the Bankruptcy Court
such agreements and other documents as may be necessary or appropriate to
effectuate or further evidence the terms and conditions of this Plan and the
other agreements referred to herein.
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OTHER DOCUMENTS AND ACTIONS.
The Debtors, Reorganized Cityscape and Reorganized CSC may, and shall,
execute such documents and take such other actions as are necessary to
effectuate the transactions provided for in the Plan.
PAYMENT OF STATUTORY FEES.
All fees payable pursuant to 28 U.S.C. Section 1930(a)(6) (U.S. Trustee
Fees) as determined by the Bankruptcy Court at the Confirmation Hearing shall be
paid by the Debtors on or before the Effective Date.
PAYMENT OF FEES AND EXPENSES OF UNOFFICIAL COMMITTEES' COUNSEL.
Subject to the approval of the Bankruptcy Court, unpaid fees and expenses
of counsel to each of the Unofficial Committees incurred through and including
the Effective Date will be paid on or as soon as practicable after the Effective
Date.
TERM OF INJUNCTIONS OR STAYS.
Unless provided in the Confirmation Order or otherwise, all injunctions
or stays imposed in the Reorganization Cases pursuant to Sections 105 and 362 of
the Bankruptcy Code or otherwise in effect on the Confirmation Date shall remain
in full force and effect until the Effective Date.
NO INTEREST.
Except as expressly provided herein, no Holder of an Allowed Claim or
Allowed Interest shall receive interest on the distribution to which such Holder
is entitled hereunder, regardless of whether such distribution is made on the
Effective Date or thereafter.
RETIREE BENEFITS.
On and after the Effective Date, to the extent required by Section
1129(a)(13) of the Bankruptcy Code, Reorganized Cityscape or Reorganized CSC, as
the case may be, shall continue to pay all retiree benefits (if any), as the
term "retiree benefits" is defined in Section 1114(a) of the Bankruptcy Code,
maintained or established by the Debtors prior to the Confirmation Date.
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ISSUANCE OF NEW COMMON STOCK
On the Effective Date or as soon as practicable thereafter,
Reorganized Cityscape shall, in accordance with the Plan, issue the New Common
Stock to the Holders of the Allowed Class 4, 5 and 6 Claims. On the Effective
Date, all securities, instruments and agreements entered into pursuant to the
Plan, including, without limitation, the New Common Stock and any security,
instrument or agreement entered into in connection therewith, shall become
effective and binding in accordance with their respective terms and conditions
upon the parties thereto without further act or action under applicable law,
regulation, order or rule, and shall be deemed to become effective
simultaneously.
X.
CONFIRMATION AND EFFECTIVE DATE CONDITIONS
CONDITIONS TO CONFIRMATION.
Confirmation of this Plan cannot occur until all of the
substantive confirmation requirements under the Bankruptcy Code have been
satisfied pursuant to Section 1129 of the Bankruptcy Code. In addition, the
Bankruptcy Court will not enter the Confirmation Order unless the Confirmation
Order is acceptable in form and substance to the Debtors, and the Confirmation
Order expressly authorizes and directs the Debtors, Reorganized Cityscape and
Reorganized CSC to perform those actions specified herein. Finally, it shall be
a condition to Confirmation that each of the events and actions required by the
Plan to occur or to be taken prior to Confirmation shall have occurred or been
taken, or the Debtors, or the party whose obligations are conditioned upon such
occurrences or actions, as applicable, shall have waived such occurrences or
actions and the Bankruptcy Court shall confirm the Plan without such occurrence
or action.
CONDITIONS TO EFFECTIVE DATE.
The Effective Date will not occur and the Plan will not be
consummated unless and until each of the following conditions has been satisfied
or waived by the Debtors:
1. The Confirmation Order shall authorize and direct that the
Debtors, Reorganized Cityscape and Reorganized CSC take all actions
necessary or appropriate to enter into, implement and consummate the
contracts, instruments, releases, leases and other agreements or
documents created in connection with the Plan, including those actions
contemplated by the provisions of this Plan set forth in Section XI
hereof.
2. The statutory fees owing the U.S. Trustee shall have been paid in
full.
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3. All other actions and documents necessary to implement the
provisions of the Plan shall have been effected or executed or, if
waivable, waived by the Person or Persons entitled to the benefit
thereof.
WAIVER OF CONDITIONS TO CONFIRMATION AND EFFECTIVE DATE.
Each of the conditions to Confirmation and the Effective Date, other than
the condition set forth in Section X.B.2 of the Plan, may be waived in whole or
in part by the Debtors at any time, without notice or an Order of the Bankruptcy
Court. The failure to satisfy or to waive any condition may be asserted by the
Debtors regardless of the circumstances giving rise to failure of such condition
to be satisfied (including any action or inaction by the Debtors). The failure
of the Debtors to exercise any of the foregoing rights will not be deemed a
waiver of any other rights and each such right will be deemed an ongoing right
that may be asserted at any time.
XI.
EFFECTS OF PLAN CONFIRMATION
DISCHARGE OF DEBTORS AND INJUNCTION.
Except as otherwise provided in the Plan or the Confirmation Order: (i)
on the Effective Date, the Debtors shall be deemed discharged and released to
the fullest extent permitted by Section 1141 of the Bankruptcy Code from all
Claims and Interests, including, but not limited to, demands, liabilities,
Claims and Interests that arose before the Effective Date and all debts of the
kind specified in Sections 502(g), 502(h) or 502(i) of the Bankruptcy Code,
whether or not (A) a proof of Claim or proof of Interest based on such debt or
Interest is Filed or deemed Filed pursuant to Section 501 of the Bankruptcy
Code, (B) a Claim or Interest based on such debt or Interest is allowed pursuant
to Section 502 of the Bankruptcy Code, or (C) the Holder of a Claim or Interest
based on such debt or Interest has accepted the Plan; and (ii) all Persons shall
be precluded from asserting against Reorganized Cityscape, Reorganized CSC,
their respective successors, or their respective assets or properties any other
or further Claims or Interests based upon any act or omission, transaction, or
other activity of any kind or nature that occurred prior to the Effective Date.
Except as otherwise provided in the Plan or the Confirmation Order, the
Confirmation Order shall act as a discharge of any and all Claims against and
all debts and liabilities of the Debtors, as provided in Sections 524 and 1141
of the Bankruptcy Code, and such discharge shall void any judgment against the
Debtors at any time obtained to the extent that it relates to a Claim
discharged.
Except as otherwise provided in the Plan or the Confirmation Order, on
and after the Effective Date, all Persons who have held, currently hold or may
hold a debt, Claim or Interest discharged pursuant to the terms of the Plan are
permanently enjoined from taking any of the following actions on account of any
such discharged debt, Claim or Interest: (i) commencing
44
<PAGE> 51
or continuing in any manner any action or other proceeding against the Debtors,
Reorganized Cityscape or Reorganized CSC, or their respective successors or
their respective properties; (ii) enforcing, attaching, collecting or recovering
in any manner any judgment, award, decree or order against the Debtors,
Reorganized Cityscape or Reorganized CSC, or their respective successors or
their respective properties; (iii) creating, perfecting or enforcing any lien or
encumbrance against the Debtors, Reorganized Cityscape or Reorganized CSC, or
their respective successors or their respective properties; and (iv) commencing
or continuing any action, in any manner, in any place that does not comply with
or is inconsistent with the provisions of the Plan or the Confirmation Order.
Any Person injured by any willful violation of such injunction shall recover
actual damages, including costs and attorneys' fees, and, in appropriate
circumstances, may recover punitive damages, from the willful violator.
LIMITATION OF LIABILITY.
None of the Debtors, Reorganized Cityscape, Reorganized CSC, the members
of the Unofficial Senior Noteholders' Committee, the members of the Unofficial
Subordinated Debentureholders' Committee, the members of the Creditors'
Committee, the Indenture Trustees, The CIT Group/Equipment Financing, Inc.,
Greenwich Capital Financial Products, Inc. or any of their respective employees,
officers, directors, agents, or representatives, or any professional persons
employed by any of them (including, without limitation, their respective
Designated Professionals), shall have any responsibility, or have or incur any
liability, to any Person whatsoever (i) for any matter expressly approved or
directed by the Confirmation Order or (ii) under any theory of liability (except
for any claim based upon willful misconduct or gross negligence) for any act
taken or omission made in good faith directly related to formulating,
implementing, confirming, or consummating the Plan, the Disclosure Statement, or
any contract, instrument, release, or other agreement or document created in
connection with the Plan; provided, that nothing in this Section XI.B shall
limit the liability of any Person for breach of any express obligation it has
under the terms of this Plan or under any agreement or other document entered
into by such Person either post-Petition Date or in accordance with the terms of
this Plan (except to the extent expressly provided in the Confirmation Order) or
for any breach of a duty of care owed to any other Person occurring after the
Effective Date.
RELEASES.
On the Effective Date, each of the Debtors shall release unconditionally,
and hereby is deemed to release unconditionally (i) each of the Debtors'
then-current and former officers, directors, shareholders, employees,
consultants, attorneys, accountants, financial advisors and other
representatives (solely in their capacities as such) (collectively, the "DEBTOR
RELEASEES"), (ii) the Creditors' Committee and, solely in their capacity as
members or representatives of the Creditors' Committee, each member, consultant,
attorney, accountant or other representative of the Creditors' Committee
(including, without limitation, their respective Designated Professionals),
(iii) the Unofficial Senior Noteholders' Committee and, solely in their capacity
as members or representatives of the Unofficial Senior Noteholders' Committee,
each
45
<PAGE> 52
member, consultant, attorney, accountant or other representative of the
Unofficial Senior Noteholders' Committee (including, without limitation, their
respective Designated Professionals), (iv) the Unofficial Subordinated
Debentureholders' Committee and, solely in their respective capacity as members
or representatives of the Unofficial Subordinated Debentureholders' Committee,
each member, consultant, attorney, accountant or other representative of the
Unofficial Subordinated Debentureholders' Committee (including, without
limitation, their respective Designated Professionals), (v) the Indenture
Trustees, in their respective capacities as Indenture Trustee, (vi) The CIT
Group/Equipment Financing, Inc. and Greenwich Capital Financial Products, Inc.,
and each of their then-current and former officers, directors, shareholders,
employees, consultants, attorneys, accountants, financial advisors and other
representatives (solely in their capacities as such) from any and all claims,
obligations, suits, judgments, damages, rights, causes of action and liabilities
whatsoever, whether known or unknown, foreseen or unforeseen, existing or
hereafter arising, in law, equity or otherwise, based in whole or in part upon
any act or omission, transaction, event or other occurrence taking place on or
prior to the Effective Date in any way relating to Cityscape, CSC, the Company's
trust indentures, the CIT Facility, the Greenwich Facility, the DIP Facilities,
the Debtors, the Reorganization Cases, the Plan or the Disclosure Statement.
INDEMNIFICATION.
The Debtors shall fully indemnify and Reorganized Cityscape or
Reorganized CSC, as the case may be, shall assume the Debtors' obligations to
indemnify any person by reason of the fact that he or she is or was a director,
officer, employee, agent, Designated Professional, member, or other authorized
representative (in each case, as applicable) of either of the Debtors, the
Creditors' Committee, the Unofficial Senior Noteholders' Committee, the
Unofficial Subordinated Debentureholders' Committee, the Indenture Trustees, The
CIT Group/Equipment Financing, Inc. or Greenwich Capital Financial Products,
Inc. (collectively, the "INDEMNITEES") against any claims, liabilities, actions,
suits, damages, fines, judgments or expenses (including reasonable attorney's
fees and expenses), arising during the course of, or otherwise in connection
with or in any way related to, the negotiation, preparation, formulation,
solicitation, dissemination, implementation, confirmation and consummation of
the Plan and the transactions contemplated thereby and the Disclosure Statement
in support thereof; provided, however, that the foregoing indemnification shall
not apply to any liabilities arising from the gross negligence or willful
misconduct of any Indemnitee. If any claim, action or proceeding is brought or
asserted against an Indemnitee in respect of which indemnity may be sought from
Reorganized Cityscape or Reorganized CSC, the Indemnitee shall promptly notify
Reorganized Cityscape or Reorganized CSC, as the case may be, in writing and
Reorganized Cityscape or Reorganized CSC, as the case may be, shall assume the
defense thereof including the employment of counsel reasonably satisfactory to
the Indemnitee, and the payment of all expenses of such Indemnitee. The
Indemnitee shall have the right to employ separate counsel in any such claim,
action or proceeding and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of the Indemnitee unless (a)
Reorganized Cityscape or Reorganized CSC, as the case may be, has agreed to pay
the fees and expenses of such counsel, or (b) Reorganized Cityscape or
Reorganized CSC, as the case may be, shall have
46
<PAGE> 53
failed to assume promptly the defense of such claim, action or proceeding or to
employ counsel reasonably satisfactory to the Indemnitee in any such claim,
action or proceeding, or (c) the named parties in any such claim, action or
proceeding (including any impleaded parties) include both the Indemnitee and
Reorganized Cityscape or Reorganized CSC, as the case may be, and the Indemnitee
believes, in the exercise of its business judgment and in the opinion of its
legal counsel, reasonably satisfactory to Reorganized Cityscape or Reorganized
CSC, as the case may be, that the joint representation of Reorganized Cityscape
or Reorganized CSC, as the case may be, and the Indemnitee will likely result in
a conflict of interest (in which case, if the Indemnitee notifies Reorganized
Cityscape or Reorganized CSC, as the case may be, in writing that it elects to
employ separate counsel at the expense of Reorganized Cityscape or Reorganized
CSC, Reorganized Cityscape or Reorganized CSC, as the case may be, shall not
have the right to assume the defense of such action or proceeding on behalf of
the Indemnitee). In addition, neither Reorganized Cityscape nor Reorganized CSC
shall effect any settlement or release from liability in connection with any
matter for which the Indemnitee would have the right to indemnification from
Reorganized Cityscape or Reorganized CSC unless such settlement contains a full
and unconditional release of the Indemnitee, or a release of the Indemnitee
reasonably satisfactory in form and substance to the Indemnitee.
VESTING OF ASSETS.
Except as otherwise provided in the Plan or the Confirmation Order,
including Article III hereof, on the Effective Date, all property of Cityscape's
Estate shall vest in Reorganized Cityscape and all property of CSC's Estate
shall vest in Reorganized CSC, all free and clear of all Claims, liens,
encumbrances and Interests of Holders of Claims and Holders of Old Securities
and Old Stock Rights. From and after the Effective Date, Reorganized Cityscape
and Reorganized CSC may operate their business and use, acquire, and dispose of
property and settle and compromise claims or interests arising on or after the
Effective Date without supervision by the Bankruptcy Court and free of any
restrictions of the Bankruptcy Code, the Bankruptcy Rules or the Local
Bankruptcy Rules, other than those restrictions expressly imposed by the Plan or
the Confirmation Order.
PRESERVATION OF CAUSES OF ACTION.
Except as otherwise provided herein, or in any contract, instrument,
release, or other agreement entered into in connection with the Plan, in
accordance with Section 1123(b) of the Bankruptcy Code, Reorganized Cityscape
and Reorganized CSC shall retain (and may enforce) any claims, rights and causes
of action that the Debtors or the Estates may hold against any Person,
including, among other things, (i) any claims, rights or causes of action under
Sections 544 through 550 of the Bankruptcy Code or any similar provisions of
state law, or any other statute or legal theory, and (ii) any claims for
recovery against present or former Holders of Trade Claims who received payments
from the Debtors during the pendency of the Debtors' chapter 11 cases on account
of Trade Claims to the extent that such payments resulted in such Holders'
receiving greater distributions on account of their Trade Claims than that to
which they
47
<PAGE> 54
are entitled under Section V.B.5 of this Plan; provided, however, that (i) in
the event that Class 4 and Class 4a vote to accept the Plan, any such claims,
rights or causes of action against Holders of Allowed Claims in such Classes
(solely in their capacities as such) shall be released, discharged and
extinguished on the Effective Date, whether or not then pending, and (ii) in the
event that Class 6 and Class 6a vote to accept the Plan, any such claims, rights
or causes of action against Holders of Allowed Claims in such Class (solely in
their capacities as such) shall be released, discharged and extinguished on the
Effective Date, whether or not then pending.
RETENTION OF BANKRUPTCY COURT JURISDICTION.
To the maximum extent permitted by the Bankruptcy Code or other
applicable law, the Bankruptcy Court shall have jurisdiction of all matters
arising out of, and related to, the Reorganization Cases and the Plan pursuant
to, and for the purpose of, Sections 105(a) and 1142 of the Bankruptcy Code,
including, without limitation, jurisdiction to:
1. Allow, disallow, determine, liquidate, classify, estimate or
establish the priority or secured or unsecured status of any Claim or
Interest, including the resolution of any request for payment of any
Administrative Claim, the resolution of any objections to the allowance
or priority of Claims or Interests and the resolution of any dispute as
to the treatment necessary to Reinstate a Claim pursuant to the Plan;
2. Grant or deny any applications for allowance of compensation or
reimbursement of expenses authorized pursuant to the Bankruptcy Code or
the Plan, for periods ending before the Effective Date;
3. Resolve any matters related to the assumption or rejection of
any executory contract or unexpired lease to which the either of the
Debtors is a party or with respect to which either of the Debtors may be
liable, and to hear, determine and, if necessary, liquidate any Claims
arising therefrom;
4. Ensure that distributions to Holders of Allowed Claims or
Allowed Interests are accomplished pursuant to the provisions of the
Plan;
5. Decide or resolve any motions, adversary proceedings, contested
or litigated matters and any other matters and grant or deny any
applications involving the Debtors, Reorganized Cityscape or Reorganized
CSC that may be pending on the Effective Date;
6. Enter such Orders as may be necessary or appropriate to
implement or consummate the provisions of the Plan and all contracts,
instruments, releases, indentures and other agreements or documents
created in connection with the Plan, the Disclosure Statement or the
Confirmation Order, except as otherwise provided herein;
7. Resolve any cases, controversies, suits or disputes that may
arise in connection with the consummation, interpretation or enforcement
of the Plan or the Confirmation Order, including the release and
injunction provisions set forth in and
48
<PAGE> 55
contemplated by the Plan and the Confirmation Order, or any entity's
rights arising under or obligations incurred in connection with this Plan
or the Confirmation Order;
8. Subject to any restrictions on modifications provided herein or
in any contract, instrument, release, indenture or other agreement or
document created in connection with the Plan, modify this Plan before or
after the Effective Date pursuant to Section 1127 of the Bankruptcy Code
or modify the Disclosure Statement, the Confirmation Order or any
contract, instrument, release, indenture or other agreement or document
created in connection with the Plan, the Disclosure Statement or the
Confirmation Order, or remedy any defect or omission or reconcile any
inconsistency in any Bankruptcy Court Order, this Plan, the Disclosure
Statement, the Confirmation Order or any contract, instrument, release,
indenture or other agreement or document created in connection with the
Plan, the Disclosure Statement or the Confirmation Order, in such manner
as may be necessary or appropriate to consummate this Plan, to the extent
authorized by the Bankruptcy Code;
9. Issue injunctions, enter and implement other Orders or take
such other actions as may be necessary or appropriate to restrain
interference by any entity with consummation, implementation or
enforcement of the Plan or the Confirmation Order;
10. Enter and implement such Orders as are necessary or
appropriate if the Confirmation Order is for any reason modified, stayed,
reversed, revoked or vacated;
11. Except as otherwise provided in this Plan, or with respect to
specific matters, in the Confirmation Order or any other Order entered in
connection with the Reorganization Cases, determine any other matters
that may arise in connection with or relating to the Plan, the Disclosure
Statement, the Confirmation Order or any contract, instrument, release,
indenture or other agreement or document created in connection with this
Plan, the Disclosure Statement or the Confirmation Order;
12. Hear and dispose of any claims assigned to, and asserted by,
Reorganized Cityscape or Reorganized CSC pursuant to Section XI.F of this
Plan;
13. Resolve any disputes relating to the Indenture Trustees'
requests for payment of their fees and expenses, as provided in Section
V.A.3.c of the Plan;
14. Resolve any disputes over invoices submitted by professionals
to the Reorganized Company for compensation for services rendered or
reimbursement of expenses incurred after the Effective Date, as provided
in Section V.A.3.b of the Plan; and
15. Enter an Order or Orders closing the Reorganization Cases.
49
<PAGE> 56
FAILURE OF BANKRUPTCY COURT TO EXERCISE JURISDICTION.
If the Bankruptcy Court abstains from exercising or declines to exercise
jurisdiction, or is otherwise without jurisdiction over any matter arising out
of the Reorganization Cases, including the matters set forth in Section XI.G
above, Section XI.G shall not prohibit or limit the exercise of jurisdiction by
any other court having competent jurisdiction with respect to such matter.
COMMITTEES.
On the Effective Date, all Committees, if any, shall be dissolved and the
members of such Committees and their professionals shall be released and
discharged from all further rights and duties arising from or related to the
Reorganization Cases. The professionals retained by such Committees and the
members thereof shall not be entitled to compensation or reimbursement of
expenses incurred for services rendered after the Effective Date other than for
services rendered pursuant to the Plan, to enforce the terms of the Plan or in
connection with other activities reserved to such Committees or such
professionals under the Plan or the Confirmation Order or in connection with any
application for allowance of compensation and reimbursement of expenses pending
as of, or Filed after, the Effective Date.
XII.
MISCELLANEOUS PROVISIONS
FINAL ORDER.
Any requirement in this Plan that an Order be a Final Order may be waived
by the Debtors; provided, that nothing contained herein or elsewhere in this
Plan shall prejudice the right of any party in interest to seek a stay pending
appeal with respect to such order.
MODIFICATION OF THE PLAN.
The Debtors reserve the right to modify the Plan at any time prior to the
Confirmation Date in the manner provided for by Section 1127 of the Bankruptcy
Code or as otherwise permitted by law without additional disclosure pursuant to
Section 1125 of the Bankruptcy Code, except as the Bankruptcy Court may
otherwise order.
The Debtors reserve the right after the Confirmation Date and before the
Effective Date to modify the terms of the Plan or waive any conditions to the
effectiveness thereof if and to the extent the Debtors determine that such
modifications or waivers are necessary or desirable to consummate the Plan. The
Debtors will give such Holders of Claims and Interests notice of such
modifications or waivers as may be required by applicable law and the Bankruptcy
Court, and
50
<PAGE> 57
any such modifications shall be subject to the approval of the Bankruptcy Court
to the extent required by, and in accordance with, Section 1127 of the
Bankruptcy Code.
The Debtors shall give notice to any Committee, each of the Unofficial
Committees and each of the DIP Lenders of any modification of the Plan.
REVOCATION OF THE PLAN.
The Debtors reserve the right to revoke or withdraw the Plan prior to the
Confirmation Date. If the Debtors revoke or withdraw the Plan, or if
Confirmation does not occur, then the Plan shall be null and void, and all of
the Debtors' respective obligations with respect to the Claims and Interests
shall remain unchanged and nothing contained herein or in the Disclosure
Statement shall be deemed an admission or statement against interest or to
constitute a waiver or release of any claims by or against either Debtor or any
other Person or to prejudice in any manner the rights of either Debtor or any
Person in any further proceedings involving either Debtor or any Person.
SEVERABILITY OF PLAN PROVISIONS.
If, prior to Confirmation, any term or provision of the Plan is held by
the Bankruptcy Court to be invalid, void or unenforceable, the Bankruptcy Court
will have the power, upon the request of the Debtors, to alter and interpret
such term or provision to make it valid or enforceable to the maximum extent
practicable, consistent with the original purpose of the term or provision held
to be invalid, void or unenforceable, and such term or provision shall then be
applicable as altered or interpreted. Notwithstanding any such holding,
alteration or interpretation, the remainder of the terms and provisions of this
Plan shall remain in full force and effect and shall in no way be affected,
impaired or invalidated by such holding, alteration or interpretation. The
Confirmation Order shall constitute a judicial determination and shall provide
that each term and provision of this Plan, as it may have been altered or
interpreted in accordance with the foregoing, is valid and enforceable pursuant
to its terms.
SUCCESSORS AND ASSIGNS.
The rights, benefits and obligations of any Person named or referred to
in the Plan shall be binding on, and shall inure to the benefit of, any heir,
executor, trustee, administrator, successor or assign of such Person.
SATURDAY, SUNDAY OR LEGAL HOLIDAY.
If any payment or act under the Plan is required to be made or performed
on a date that is not a Business Day, then the making of such payment or the
performance of such act may be completed on the next succeeding Business Day,
but shall be deemed to have been completed as of the required date.
51
<PAGE> 58
POST-EFFECTIVE DATE EFFECT OF EVIDENCES OF CLAIMS OR INTERESTS.
Except as otherwise specified herein, notes, bonds, stock certificates
and other evidences of Claims against or Interests in the Debtors, and all
Instruments of the Debtors (in either case, other than those executed and
delivered as contemplated hereby in connection with the consummation of the
Plan), shall, effective upon the Effective Date, represent only the right to
participate in the distributions contemplated by the Plan.
GOVERNING LAW.
Unless a rule of law or procedure is supplied by (i) federal law
(including the Bankruptcy Code, the Bankruptcy Rules or the Local Bankruptcy
Rules), (ii) an express choice of law provision in any agreement, contract,
instrument, or document provided for, or executed in connection with, the Plan,
or (iii) applicable non-bankruptcy law, the rights and obligations arising under
the Plan and any agreements, contracts, documents, and instruments executed in
connection with the Plan shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York without giving effect to the
principles of conflict of laws thereof.
NO LIABILITY FOR SOLICITATION OR PARTICIPATION.
As specified in Section 1125(e) of the Bankruptcy Code, Persons that
solicit acceptances or rejections of the Plan and/or that participate in the
offer, issuance, sale, or purchase of securities offered or sold under the Plan,
in good faith and in compliance with the applicable provisions of the Bankruptcy
Code, shall not be liable, on account of such solicitation or participation, for
violation of any applicable law, rule, or regulation governing the solicitation
of acceptances or rejections of the Plan or the offer, issuance, sale, or
purchase of securities.
NO ADMISSIONS OR WAIVER OF OBJECTIONS.
Notwithstanding anything herein to the contrary, if the Effective Date
does not occur, nothing contained in the Plan shall be deemed as an admission by
the Debtors or any other party with respect to any matter set forth herein,
including, without limitation, liability on any Claim or the propriety of any
Claims classification. The Debtors are not bound by any statements herein or in
the Disclosure Statement as judicial admissions.
52
<PAGE> 59
DATED: April 27, 1999
CITYSCAPE FINANCIAL CORP.,
By: /s/ Steven M. Miller
-----------------------------------------------
Name: Steven M. Miller
Title: President and Chief Executive Officer
CITYSCAPE CORP.,
a New York corporation
By: /s/ Steven M. Miller
-----------------------------------------------
Name: Steven M. Miller
Title: Senior Vice President
Presented by:
Robert J. Rosenberg
A. Brent Truitt
Rachael Fink
LATHAM & WATKINS
885 Third Avenue, Suite 1000
New York, New York 10022
(212) 906-1200
COUNSEL FOR CITYSCAPE FINANCIAL
CORP. AND CITYSCAPE CORP.
By: /s/ Robert J. Rosenberg
-----------------------
Robert J. Rosenberg
<PAGE> 60
INDEX OF EXHIBITS
Exhibit A Reorganized Cityscape Certificate of Incorporation
Exhibit B Reorganized Cityscape Bylaws
Exhibit C Reorganized CSC Certificate of Incorporation
Exhibit D Reorganized CSC Bylaws
<PAGE> 61
EXHIBIT A
REORGANIZED CITYSCAPE CERTIFICATE OF INCORPORATION
<PAGE> 62
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CITYSCAPE FINANCIAL CORP.
I, the undersigned Chief Executive Officer of Cityscape Financial
Corp., a corporation existing under the laws of the State of Delaware
(hereinafter referred to as the "Corporation"), do hereby certify as follows:
FIRST: That the Certificate of Incorporation of the Corporation
was filed with the Secretary of State of the State of Delaware on
December 16, 1988, under the name Mandi of Essex, LTD. An amendment to
the certificate for Renewal and Revival of Charter of Mandi of Essex,
Inc. was filed on April 21, 1994 and was further amended by Amendment to
Certificate of Change of Registered Agent and Registered Office on June
23, 1994. An Amendment to the Certificate of Incorporation amending the
authorized number of shares was filed by the Secretary of State of
Delaware on July 22, 1994.
SECOND: This Restated Certificate of Incorporation restates and
integrates and amends the Certificate of Incorporation of the Corporation
by restating the Certificate of Incorporation in its entirety. The text
of the Certificate of Incorporation is in its entirety as follows:
FIRST: The name of the Company is: CITYSCAPE FINANCIAL CORP.
SECOND: The address of the Company's registered office in the
State of Delaware is 1209 Orange Street, Wilmington,
County of New Castle, Delaware, 19801, and the name of its
registered agent at such address is The Corporation Trust
Company.
THIRD: The purpose of the Company is to engage in any lawful act
or activity for which corporations may be organized under
the General Corporation Law of Delaware as it now exists
or may hereafter be amended and supplemented.
FOURTH: The total number of shares of stock which the Company
shall have authority to issue is __________ having a par
value of $0.01 per share. All such shares are Common
Stock.
The issuance of nonvoting equity securities is prohibited.
FIFTH: The personal liability of the directors of the Company is
hereby eliminated to the fullest extent permitted by
paragraph (7) of
<PAGE> 63
subsection (b) of Section 102 of the General Corporation
Law of the State of Delaware, as the same may be amended
and supplemented. Any repeal or modification of this
Article Fifth shall not adversely affect any right or
protection of a director of the Company existing
immediately prior to such repeal or modification.
SIXTH: The Company shall, to the fullest extent permitted or
required by Section 145 of the General Corporation Law of
the State of Delaware, as the same may be amended and
supplemented, indemnify any and all persons to whom it
shall have power to indemnify under said section from and
against any and all of the expenses, liabilities or other
matters referred to in or covered by said section, and the
indemnification provided for herein shall not be deemed
exclusive of any other rights to which those indemnified
may be entitled under any By-Law, agreement, vote of
stockholders or disinterested directors or otherwise, both
as to action in his or her official capacity and as to
action in another capacity while holding such office, and
shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of
such person. Any repeal or modification of this Article
Sixth shall not adversely affect any right or protection
existing hereunder immediately prior to such repeal or
modification.
SEVENTH: From time to time any of the provisions of this
certificate of incorporation may be amended, altered or
repealed, and other provisions authorized by the laws of
the State of Delaware at the time in force may be added or
inserted in the manner and at the time prescribed by said
laws, and all rights at any time conferred upon the
stockholders of the Company by this certificate of
incorporation are granted subject to the provisions of
this Article Seventh.
EIGHTH: In furtherance and not in limitation of the rights,
powers, privileges and discretionary authority granted or
conferred by the General Corporation Law of the State of
Delaware or other statutes or laws of the state of
Delaware, the Board of Directors is expressly authorized
to make, alter, amend or repeal the By-Laws of the
Company, without any action on the part of the
Stockholders, but the Stockholders may make additional
By-Laws and may alter, amend or repeal any By-Law whether
adopted by them or otherwise. The Company may in its
By-Laws confer powers upon its Board of Directors in
addition to the foregoing and in addition
2
<PAGE> 64
to the powers and authorities expressly conferred upon the
Board of Directors by applicable law.
THIRD: This Restated Certificate of Incorporation was duly adopted
pursuant to the Corporation's Plan of Reorganization as filed with the
United States Bankruptcy Court for the Southern District of New York and
confirmed by such Court as of __________, 1999 (the "Plan of
Reorganization"), pursuant to Chapter 11 of Title 11 of the United States
Code and otherwise in accordance with applicable provisions of the
General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, I have subscribed this document on the date
set forth below and do hereby affirm, under the penalties of perjury, that the
statements contained therein have been examined by me and are true and correct.
Date: ______________, 1999
CITYSCAPE FINANCIAL CORP.
--------------------------
Name:
Title:
3
<PAGE> 65
EXHIBIT B
REORGANIZED CITYSCAPE BYLAWS
<PAGE> 66
AMENDED & RESTATED
BY-LAWS
OF
CITYSCAPE FINANCIAL CORP.
<PAGE> 67
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE I. OFFICES..........................................................1
Section 1.......................................................1
Section 2.......................................................1
ARTICLE II. MEETINGS OF STOCKHOLDERS........................................1
Section 1.......................................................1
Section 2.......................................................1
Section 3.......................................................1
Section 4.......................................................2
Section 5.......................................................2
Section 6.......................................................2
Section 7.......................................................2
Section 8.......................................................3
Section 9.......................................................3
ARTICLE III. DIRECTORS......................................................3
Section 1.......................................................3
Section 2.......................................................4
Section 3.......................................................4
Section 4.......................................................4
Section 5.......................................................4
Section 6.......................................................5
Section 7.......................................................5
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Section 8.......................................................5
Section 9.......................................................5
Section 10......................................................5
Section 11......................................................6
Section 12......................................................6
Section 13......................................................6
ARTICLE IV. OFFICERS........................................................9
Section 1.......................................................9
Section 2.......................................................9
Section 3.......................................................9
Section 4.......................................................9
Section 5.......................................................9
Section 6.......................................................10
Section 7.......................................................10
Section 8.......................................................10
Section 9.......................................................11
Section 10......................................................11
Section 11......................................................11
ARTICLE V. CERTIFICATES OF STOCK............................................12
Section 1.......................................................12
Section 2.......................................................12
Section 3.......................................................12
Section 4.......................................................12
Section 5.......................................................13
Section 6.......................................................13
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Section 7.......................................................13
ARTICLE VI. GENERAL PROVISIONS..............................................14
Section 1.......................................................14
Section 2.......................................................14
Section 3.......................................................14
Section 4.......................................................14
Section 5.......................................................14
Section 6.......................................................15
Section 7.......................................................15
Section 8.......................................................15
ARTICLE VII. AMENDMENTS.....................................................15
Section 1.......................................................15
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ARTICLE I.
OFFICES
Section 1. The registered office shall be in the City of Wilmington, County of
New Castle, State of Delaware.
Section 2. The corporation may also have 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 3. Meetings of stockholders shall be held at any place within or outside
the State of Delaware designated by the Board of Directors. In the absence of
any such designation, stockholders' meetings shall be held at the principal
executive office of the corporation.
Section 4. The annual meeting of stockholders shall be held each year on a date
and a time designated by the Board of Directors. At each annual meeting
directors shall be elected and any other proper business may be transacted.
Section 5. A majority of the stock issued and outstanding and entitled to vote
at any meeting of stockholders, the holders of which are present in person or
represented by proxy, shall constitute a quorum for the transaction of business
except as otherwise provided by law, by the Certificate of Incorporation, or by
these By-Laws. A quorum, once established, shall not be broken by the withdrawal
of enough votes to leave less than a quorum and the votes present may continue
to transact business until adjournment. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, a majority of the
voting stock represented in person or by proxy may 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 thereat.
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Section 6. 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, unless the question
is one upon which by express provision of the statutes, or the Certificate of
Incorporation, or these By-Laws, a different vote is required in which case such
express provision shall govern and control the decision of such question.
Section 7. At each meeting of the stockholders, each stockholder having the
right to vote may vote in person or may authorize another person or persons to
act for him by proxy appointed by an instrument in writing subscribed by such
stockholder and bearing a date not more than three years prior to said meeting,
unless said instrument provides for a longer period. All proxies must be filed
with the Secretary of the corporation at the beginning of each meeting in order
to be counted in any vote at the meeting. Each stockholder shall have one vote
for each share of stock having voting power, registered in his name on the books
of the corporation on the record date set by the Board of Directors as provided
in Article V, Section 6 hereof. All elections shall be had and all questions
decided by a plurality vote.
Section 8. 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 President and shall be called by the President or the
Secretary at the request in writing of a majority of the Board of Directors, or
at the request in writing of stockholders owning a majority in amount of the
entire capital stock of the corporation issued and outstanding, and entitled to
vote. Such request shall state the purpose or purposes of the proposed meeting.
Business transacted at any special meeting of stockholders shall be limited to
the purposes stated in the notice.
Section 9. Whenever stockholders are required or permitted to take any action at
a meeting, a written notice of the meeting shall be given which notice shall
state the place, date and hour of the meeting, and, in the case of a special
meeting, the purpose or purposes for which the meeting is called. The written
notice of any meeting shall be given to each stockholder entitled to vote at
such meeting not less than ten nor more than sixty days before the date of the
meeting. If mailed, notice is given when deposited in the United States mail,
postage prepaid, directed to the stockholder at his address as it appears on the
records of the corporation.
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Section 10. The officer who has charge of the stock ledger of the corporation
shall prepare and make, at least ten days before every meeting of stockholders,
a complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
Section 11. Unless otherwise provided in the Certificate of Incorporation, any
action required to be taken at any annual or special meeting of stockholders of
the corporation, or any action which may 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.
ARTICLE III.
DIRECTORS
Section 12. The number of directors which shall constitute the whole Board shall
be not less than one (1) nor more than ten (10). The first Board shall consist
of ______ directors. The directors need not be stockholders. The directors shall
be elected 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; provided, however, that unless otherwise
restricted by the Certificate of Incorporation or by law, any director or the
entire Board of Directors may be removed, either with or without cause, from the
Board of Directors at any meeting of stockholders by a majority of the stock
represented and entitled to vote thereat.
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Section 13. Vacancies on the Board of Directors by reason of death, resignation,
retirement, disqualification, removal from office, or otherwise, 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, although
less than a quorum, or by a sole remaining director. The directors so chosen
shall hold office until the next annual election of directors 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. If, at the time of filling any vacancy or any newly
created directorship, the directors then in office shall constitute less than a
majority of the whole Board (as constituted immediately prior to any such
increase), the Court of Chancery may, upon application of any stockholder or
stockholders holding at least ten percent of the total number of the shares at
the time outstanding having the right to vote for such directors, summarily
order an election to be held to fill any such vacancies or newly created
directorships, or to replace the directors chosen by the directors then in
office.
Section 14. The property and business of the corporation shall be managed by or
under the direction of its Board of Directors. In addition to the powers and
authorities by these By-Laws expressly conferred upon them, the Board 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 15. The directors may hold their meetings and have one or more offices,
and keep the books of the corporation outside of the State of Delaware.
Section 16. Regular meetings of the Board of Directors may be held without
notice at such time and place as shall from time to time be determined by the
Board.
Section 17. Special meetings of the Board of Directors may be called by the
President on forty-eight hours' notice to each director, either personally or by
mail or by telegram; special meetings shall be called by the President or the
Secretary in like manner and on like notice on the written request of two
directors unless the Board consists of only one director; in which case special
meetings shall be called by the President or Secretary in like manner or on like
notice on the written request of the sole director.
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Section 18. At all meetings of the Board of Directors a majority of the
authorized number of directors shall be necessary and sufficient to constitute a
quorum for the transaction of business, and the vote 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, by the Certificate of Incorporation or by these By-Laws. 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. If only one
director is authorized, such sole director shall constitute a quorum.
Section 19. 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 20. 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 such meeting.
COMMITTEES OF DIRECTORS
Section 21. The Board of Directors may, by resolution passed by a majority of
the whole Board, designate one or more committees, each such 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 the meeting in the place of any such absent or
disqualified member. Any such committee, to the extent provided in the
resolution of the Board of Directors, shall have and may exercise all the powers
and authority of the Board of Directors in the management of the business and
affairs of the corporation, and may authorize the seal of the corporation to be
affixed to all papers which may require it; but no such committee shall have the
power or authority in reference to amending the Certificate of Incorporation,
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or amending the
By-Laws of the corporation; and, unless the resolution or the Certificate of
Incorporation expressly so provide, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock.
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Section 22. Each committee shall keep regular minutes of its meetings and report
the same to the Board of Directors when required.
COMPENSATION OF DIRECTORS
Section 23. 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.
INDEMNIFICATION
Section 24. (a) The corporation shall indemnify any person 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 expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) The corporation shall indemnify any person 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 another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation and except that no such indemnification shall
be made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable for negligence or misconduct in the performance
of his duty to the corporation unless and only to the extent that the Court of
Chancery of Delaware or the court in which such action or suit was
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brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which such Court
of Chancery or such other court shall deem proper.
(c) To the extent that a director, officer, employee or agent of the
corporation shall be successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in paragraphs (a) and (b), or in defense
of any claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(d) Any indemnification under paragraphs (a) and (b) (unless ordered
by a court) shall be made by the corporation only as authorized in the specific
case upon a determination that indemnification of the director, officer,
employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in paragraphs (a) and (b). Such
determination shall be made (1) by the Board of Directors by a majority vote of
a quorum consisting of directors who were not parties to such action, suit or
proceeding, or (2) if such a quorum is not obtainable, or, even if obtainable a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (3) by the stockholders.
(e) Expenses incurred in defending a civil or criminal action, suit
or proceeding may be paid by the corporation in advance of the final disposition
of such action, suit or proceeding as authorized by the Board of Directors in
the manner provided in paragraph (d) upon receipt of an undertaking by or on
behalf of the director, officer, employee or agent to repay such amount unless
it shall ultimately be determined that he is entitled to be indemnified by the
corporation as authorized in this Section 13.
(f) The indemnification provided by this Section 13 shall not be
deemed exclusive of any other rights to which those indemnified may be entitled
under any by-law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a person.
(g) The Board of Directors may authorize, by a vote of a majority of
a quorum of the Board of Directors, the corporation to purchase and maintain
insurance on behalf of any person who 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 any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liability under the provisions of this Section 13.
(h) For the purposes of this Section 13, references to "the
corporation" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and
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employees or agents, so that any person who is or was a director, officer,
employee or agent of such constituent corporation, or is or was serving at the
request of such constituent corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under the provisions of this
Section with respect to the resulting or surviving corporation as he would have
with respect to such constituent corporation if its separate existence had
continued.
(i) For purposes of this section, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the corporation" shall include service
as a director, officer, employee or agent of the corporation which imposes
duties on, or involves services by, such director, officer, employee or agent
with respect to an employee benefit plan, its participants or beneficiaries; and
a person who acted in good faith and in a manner he reasonably believed to be in
the interest of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not opposed to the best interests of
the corporation" as referred to in this section.
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ARTICLE IV.
OFFICERS
Section 25. The officers of this corporation shall be chosen by the Board of
Directors and shall include a President, a Secretary, and a Treasurer. The
corporation may also have at the discretion of the Board of Directors such other
officers as are desired, including a Chairman of the Board, one or more Vice
Presidents, one or more Assistant Secretaries and Assistant Treasurers, and such
other officers as may be appointed in accordance with the provisions of Section
3 hereof. In the event there are two or more Vice Presidents, then one or more
may be designated as Executive Vice President, Senior Vice President, or other
similar or dissimilar title. At the time of the election of officers, the
directors may by resolution determine the order of their rank. Any number of
offices may be held by the same person, unless the Certificate of Incorporation
or these By-Laws otherwise provide.
Section 26. The Board of Directors, at its first meeting after each annual
meeting of stockholders, shall choose the officers of the corporation.
Section 27. 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 28. The salaries of all officers and agents of the corporation shall be
fixed by the Board of Directors.
Section 29. The officers of the corporation shall hold office until their
successors are chosen and qualify in their stead. 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. If the office of any
officer or officers becomes vacant for any reason, the vacancy shall be filled
by the Board of Directors.
CHAIRMAN OF THE BOARD
Section 30. The Chairman of the Board, if such an officer be elected, shall, if
present, preside at all meetings of the Board of Directors and exercise and
perform such other powers and duties as may be from time to time assigned to him
by the Board of Directors or prescribed by these By-Laws. If there is no
President, the Chairman of the Board shall in addition be the Chief Executive
Officer of the corporation and shall have the powers and duties prescribed in
Section 7 of this Article IV.
PRESIDENT
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Section 31. Subject to such supervisory powers, if any, as may be given by the
Board of Directors to the Chairman of the Board, if there be such an officer,
the President shall be the Chief Executive Officer of the corporation and shall,
subject to the control of the Board of Directors, have general supervision,
direction and control of the business and officers of the corporation. He shall
preside at all meetings of the stockholders and, in the absence of the Chairman
of the Board, or if there be none, at all meetings of the Board of Directors. He
shall be an ex-officio member of all committees and shall have the general
powers and duties of management usually vested in the office of President and
Chief Executive Officer of corporations, and shall have such other powers and
duties as may be prescribed by the Board of Directors or these By-Laws.
SECRETARY AND ASSISTANT SECRETARY
Section 32. The Secretary shall attend all sessions of the Board of Directors
and all meetings of the stockholders and record all votes and the minutes of all
proceedings in a book to be kept for that purpose; and shall perform like duties
for the standing committees when required by the Board of Directors. He shall
give, or cause to be given, notice of all meetings of the stockholders and of
the Board of Directors, and shall perform such other duties as may be prescribed
by the Board of Directors or these By-Laws. He shall keep in safe custody the
seal of the corporation, and when authorized by the Board, affix the same to any
instrument requiring it, and when so affixed it shall be attested by his
signature or by the signature of an 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 33. 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, the Assistant Secretary designated by the Board of
Directors, shall, in the absence or disability of the Secretary, 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.
TREASURER AND ASSISTANT TREASURER
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Section 34. 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. 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 Board of Directors, at its regular meetings, or when the Board of
Directors so requires, an account of all his transactions as Treasurer and of
the financial condition of the corporation. If required by the Board of
Directors, he shall give the corporation a bond, 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 35. 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, the Assistant Treasurer designated by the Board
of Directors, shall, in the absence or disability of the Treasurer, 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 V.
CERTIFICATES OF STOCK
Section 36. Every holder of stock of the corporation shall be entitled to have a
certificate signed by, or in the name of the corporation by, the Chairman or
Vice Chairman of the Board of Directors, or the President or a Vice President,
and by the Secretary or an Assistant Secretary, or the Treasurer or an Assistant
Treasurer of the corporation, certifying the number of shares represented by the
certificate owned by such stockholder in the corporation.
Section 37. Any or all of the signatures on the certificate may be a facsimile.
In case any officer, transfer agent, or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer, transfer agent, or registrar before such certificate is issued, it
may be issued by the corporation with the same effect as if he were such
officer, transfer agent, or registrar at the date of issue.
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Section 38. 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 in section 202 of the General Corporation Law of Delaware, 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.
LOST, STOLEN OR DESTROYED CERTIFICATES
Section 39. 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 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 to 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.
TRANSFERS OF STOCK
Section 40. 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, assignation 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
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Section 41. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of the 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 a record date which shall
not be more than sixty nor less than ten days before the date of such meeting,
nor more than sixty days prior to any other action. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
REGISTERED STOCKHOLDERS
Section 42. The corporation shall be entitled to treat the holder of record of
any share or shares of stock as the holder in fact thereof and accordingly shall
not be bound to recognize any equitable or other claim or interest in such share
on the part of any other person, whether or not it shall have express or other
notice thereof, save as expressly provided by the laws of the State of Delaware.
ARTICLE VI.
GENERAL PROVISIONS
DIVIDENDS
Section 43. 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 regular or special meeting, pursuant to law. Dividends
may be paid in cash, in property, or in shares of the capital stock, subject to
the provisions of the Certificate of Incorporation.
Section 44. 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 fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interests of the
corporation, and the directors may abolish any such reserve.
CHECKS
Section 45. All checks or demands for money and notes of the corporation shall
be signed by such officer or officers as the Board of Directors may from time to
time designate.
14
<PAGE> 83
FISCAL YEAR
Section 46. The fiscal year of the corporation shall be fixed by resolution of
the Board of Directors.
SEAL
Section 47. The corporate seal shall have inscribed thereon the name of the
corporation, the year of its organization and the words "Corporate Seal,
Delaware". Said seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
NOTICES
Section 48. 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.
Section 49. 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 to be
equivalent.
ANNUAL STATEMENT
Section 50. 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.
ARTICLE VII.
AMENDMENTS
15
<PAGE> 84
Section 51. These By-Laws may be altered, amended or repealed or new By-Laws may
be adopted by the stockholders or by the Board of Directors, when such power is
conferred upon the Board of Directors by the Certificate of Incorporation, at
any regular meeting of the stockholders or of the Board of Directors or at any
special 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. If the power to adopt, amend or repeal
By-Laws is conferred upon the Board of Directors by the Certificate of
Incorporation it shall not divest or limit the power of the stockholders to
adopt, amend or repeal By-Laws.
16
<PAGE> 85
EXHIBIT C
REORGANIZED CSC CERTIFICATE OF INCORPORATION
<PAGE> 86
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CITYSCAPE CORP.
----------------------------------------------
I, the undersigned Chief Executive Officer of Cityscape Corp., a
corporation existing under the laws of the State of New York (hereinafter
referred to as the "Corporation"), do hereby certify as follows:
FIRST: That the Certificate of Incorporation of the Corporation
was filed with the Secretary of State of the State of New York on March 4, 1985,
under the name of RSSG Corp. An Amendment changing the corporation's name to
Cityscape Corp. was filed on November 7, 1985, and was further amended by
Amendment to Certificate of Incorporation filed by the Department of State on
February 16, 1990.
SECOND: This Restated Certificate of Incorporation restates and
integrates and amends the Certificate of Incorporation of the Corporation by
restating the Certificate of Incorporation in its entirety. The text of the
Certificate of Incorporation is in its entirety as follows:
FIRST: The name of the corporation is CITYSCAPE CORP.
SECOND: The corporation is formed for the following purpose or
purposes:
To engage in any lawful act or activity for which
corporations may be organized under the Business
Corporation Law, provided that the corporation is not
formed to engage in any act or activity requiring the
consent or approval of any state official, department,
board, agency or other body without such consent or
approval first being obtained.
THIRD: The office of the corporation is to be located in the
County of Westchester, State of New York.
FOURTH: The aggregate number of shares which the corporation shall
have authority to issue is 400 all of which are of a par
value of $0.01 each, and all of which are of the same
class.
<PAGE> 87
The issuance of nonvoting equity securities is
prohibited.
FIFTH: The Secretary of State is designated as the agent of the
corporation upon whom process against the corporation may
be served. The post office address within the State of
New York to which the Secretary of State shall mail a
copy of any process against the corporation served upon
him is:
Cityscape Corp.
565 Taxter Road
Elmsford, New York 10523
SIXTH: The duration of the corporation is to be perpetual.
SEVENTH: The corporation shall, to the fullest extent permitted by
Article 7 of the Business Corporation Law of the State of
New York, as the same may be amended and supplemented,
indemnify any and all persons whom it shall have power to
indemnify under said Article from and against any and all
of the expenses, liabilities, or other matters referred
to in or covered by said Article, and the indemnification
provided for herein shall not be deemed exclusive of any
other rights to which any person may be entitled under
any By-Law, resolution of shareholders, resolution of
directors, agreement, or otherwise, as permitted by said
Article, as to action in any capacity in which he served
at the request of the corporation.
EIGHTH: The personal liability of the directors of the
corporation is eliminated to the fullest extent permitted
by the provisions of paragraph (b) of Section 402 of the
Business Corporation Law of the State of New York, as the
same may be amended and supplemented.
THIRD: This Amended and Restated Certificate of Incorporation was
duly adopted pursuant to the Corporation's Plan of Reorganization as filed with
the United States Bankruptcy Court for the Southern District of New York and
confirmed by such Court as of , 1999 (the "Plan of Reorganization"),
pursuant to Chapter 11 of Title 11 of the United States Code and otherwise in
accordance with applicable provisions of the Business Corporation Law of the
State of New York.
2
<PAGE> 88
IN WITNESS WHEREOF, I have subscribed this document on the date set forth
below and do hereby affirm, under the penalties of perjury, that the statements
contained therein have been examined by me and are true and correct.
Date: ______________, 1999
CITYSCAPE CORP.
------------------------------------
Name:
Title:
3
<PAGE> 89
EXHIBIT D
REORGANIZED CSC BYLAWS
<PAGE> 90
AMENDED & RESTATED
BY-LAWS
OF
CITYSCAPE CORP.
(a New York corporation)
As Amended As Of __________, 1999
ARTICLE I.
SHAREHOLDERS
CERTIFICATES REPRESENTING SHARES. Certificates representing shares shall set
forth thereon the statements prescribed by Section 508, and, where applicable,
by Sections 505, 616, 620, 709, and 1002, of the Business Corporation Law and by
any other applicable provision of law and shall be signed by the Chairman or a
Vice-Chairman of the Board of Directors, if any, or by the President or a
Vice-President and by the Secretary or an Assistant Secretary or the Treasurer
or an Assistant Treasurer and may be sealed with the corporate seal or a
facsimile thereof. The signatures of the officers upon a certificate may be
facsimiles if the certificate is countersigned by a transfer agent or registered
by a registrar other than the corporation itself or its employee, or if the
shares are listed on a registered national security exchange. In case any
officer who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer at the date of its issue.
A certificate representing shares shall not be issued until the full
amount of consideration therefor has been paid except as Section 504 of the
Business Corporation Law may otherwise permit.
The corporation may issue a new certificate for shares in place of any
certificate theretofore issued by it, alleged to have been lost or destroyed,
and the Board of Directors may require the owner of any lost or destroyed
certificate, or his legal representative, to give the corporation a bond
sufficient to indemnify the corporation against any claim that may be made
against it on account of the alleged loss or destruction of any such certificate
or the issuance of any such new certificate.
<PAGE> 91
FRACTIONAL SHARE INTERESTS. The corporation may issue certificates for fractions
of a share where necessary to effect transactions authorized by the Business
Corporation Law which shall entitle the holder, in proportion to his fractional
holdings, to exercise voting rights, receive dividends and participate in
liquidating distributions; or it may pay, in cash the fair value of fractions of
a share as of the time when those entitled to receive such fractions are
determined; or it may issue scrip in registered or bearer form over the manual
or facsimile signature of an officer of the corporation or of its agent,
exchangeable as therein provided for full shares, but such scrip shall not
entitle the holder to any rights of a shareholder except as therein provided.
SHARE TRANSFERS. Upon compliance with provisions restricting the transferability
of shares, if any, transfers of shares of the corporation shall be made only on
the share record of the corporation by the registered holder thereof, or by his
attorney thereunto authorized by power of attorney duly executed and filed with
the Secretary of the corporation or with a transfer agent or a registrar, if
any, and on surrender of the certificate or certificates for such shares
properly endorsed and the payment of all taxes due thereon.
RECORD DATE FOR SHAREHOLDERS. For the purpose of determining the shareholders
entitled to notice of or to vote at any meeting of shareholders or any
adjournment thereof, or to express consent to or dissent from any proposal
without a meeting, or for the purpose of determining shareholders entitled to
receive payment of any dividend or the allotment of any rights, or for the
purpose of any other action, the directors may fix, in advance, a date as the
record date for any such determination of shareholders. Such date shall not be
more than fifty days nor less than ten days before the date of such meeting, nor
more than fifty days prior to any other action. If no record date is fixed, the
record date for the determination of shareholders entitled to notice of or to
vote at a meeting of shareholders shall be at the close of the business on the
day next preceding the day on which notice is given, or, if no notice is given,
the day on which the meeting is held; the record date for determining
shareholders for any purpose other than that specified in the preceding clause
shall be at the close of business on the day on which the resolution of the
directors relating thereto is adopted. When a determination of shareholders of
record entitled to notice of or to vote at any meeting of shareholders has been
made as provided in this paragraph, such determination shall apply to any
adjournment thereof, unless directors fix a new record date under this paragraph
for the adjourned meeting.
<PAGE> 92
MEANING OF CERTAIN TERMS. As used herein in respect of the right to notice of a
meeting of shareholders or a waiver thereof or to participate or vote thereat or
to consent or dissent in writing in lieu of a meeting, as the case may be, the
term "share" or "shares" or "shareholder" or "shareholders" refers to an
outstanding share or shares and to a holder or holders of record of outstanding
shares when the corporation is authorized to issue only one class of shares, and
said reference is also intended to include any outstanding share or shares and
any holder or holders of record of outstanding shares of any class upon which or
upon whom the Certificate of Incorporation confers such rights where there are
two or more classes or series of shares or upon which or upon whom the Business
Corporation Law confers such rights notwithstanding that the Certificate of
Incorporation may provide for more than one class or series of shares, one or
more of which are limited or denied such rights thereunder.
Shareholder Meetings.
- TIME. The annual meeting shall be held on the date fixed, from time to
time, by the directors, provided, that the first annual meeting shall be held on
a date within thirteen months after the formation of the corporation, and each
successive annual meeting shall be held on a date within thirteen months after
the date of the preceding annual meeting. A special meeting shall be held on the
date fixed by the directors except when the Business Corporation Law confers the
right to fix the date upon shareholders.
- PLACE. Annual meetings and special meetings shall be held at such
place, within or without the State of New York, as the directors may, from time
to time, fix. Whenever the directors shall fail to fix such place, or, whenever
shareholders entitled to call a special meeting shall call the same, the meeting
shall be held at the office of the corporation in the State of New York.
- CALL. Annual meetings may be called by the directors or by any officer
instructed by the directors to call the meeting. Special meetings may be called
in like manner except when the directors are required by the Business
Corporation Law to call a meeting, or except when the shareholders are entitled
by said Law to demand the call of a meeting.
- NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER OF NOTICE. Written notice of
all meetings shall be given, stating the place, date, and hour of the meeting,
and, unless it is an annual meeting, indicating that it is being issued by or at
the direction of the person or persons calling the meeting. The notice of an
annual meeting shall state that the meeting is called for the election of
directors and for the transaction of other business which may properly come
before the meeting, and shall, (if any other action which could be taken at a
special meeting is to be taken at such annual meeting) state the purpose or
purposes. The notice of a special meeting shall in all instances state the
purpose or purposes for which the meeting is called; and, at any such meeting,
only such business may be transacted which is related to the purpose or purposes
set forth in the notice. If the directors shall adopt, amend, or repeal a bylaw
regulating an impending election of directors, the notice of the next meeting
for election of directors shall contain the statements prescribed by Section
601(b) of the Business Corporation Law. If any action is
<PAGE> 93
proposed to be taken which would, if taken, entitle shareholders to receive
payment for their shares, the notice shall include a statement of that purpose
and to that effect and shall be accompanied by a copy of Section 623 of the
Business Corporation Law or an outline of its material terms. A copy of the
notice of any meeting shall be given, personally or by first class mail, not
less than ten days nor more than fifty days before the date of the meeting,
unless the lapse of the prescribed period of time shall have been waived, to
each shareholder at his record address or at such other address which he may
have furnished by request in writing to the Secretary of the corporation. In
lieu of giving a copy of such notice personally or by first class mail as
aforesaid, a copy of such notice may be given by third class mail not fewer than
twenty-four nor more than fifty days before the date of the meeting. Notice by
mail shall be deemed to be given when deposited, with postage thereon prepaid,
in a post office or official depository under the exclusive care and custody of
the United States post office department. If a meeting is adjourned to another
time or place, and, if any announcement of the adjourned time or place is made
at the meeting, it shall not be necessary to give notice of the adjourned
meeting unless the directors, after adjournment, fix a new record date for the
adjourned meeting. Notice of a meeting need not be given to any shareholder who
submits a signed waiver of notice before or after the meeting. The attendance of
a shareholder at a meeting without protesting prior to the conclusion of the
meeting the lack of notice of such meeting shall constitute a waiver of notice
by him.
- SHAREHOLDER LIST AND CHALLENGE. A list of shareholders as of the record
date, certified by the Secretary or other officer responsible for its
preparation or by the transfer agent, if any, shall be produced at any meeting
of shareholders upon the request thereat or prior thereto of any shareholder. If
the right to vote at any meeting is challenged, the inspectors of election, if
any, or the person presiding thereat, shall require such list of shareholders to
be produced as evidence of the right of the persons challenged to vote at such
meeting, and all persons who appear from such list to be shareholders entitled
to vote thereat may vote at such meeting.
- CONDUCT OF MEETING. Meetings of the shareholders shall be presided over
by one of the following officers in the order of seniority and if present and
acting--the Chairman of the Board, if any, the Vice-Chairman of the Board, if
any, the President, a Vice-President, or, if none of the foregoing is in office
and present and acting, by the Chairman to be chosen by the shareholders. The
Secretary of the corporation, or in his absence, an Assistant Secretary, shall
act as secretary of every meeting, but if neither the Secretary nor an Assistant
Secretary is present the Chairman of the meeting shall appoint a secretary of
the meeting.
- PROXY REPRESENTATION. Every shareholder may authorize another person or
persons to act for him by proxy in all matters in which a shareholder is
entitled to participate, whether by waiving notice of any meeting, voting or
participating at a meeting, or expressing consent or dissent without a meeting.
Every proxy must be signed by the shareholder or his attorney-in-fact. No proxy
shall be valid after the expiration of eleven months from the date thereof
unless otherwise provided in the proxy. Every proxy shall be revocable at the
pleasure of the shareholder executing it, except as otherwise provided by the
Business Corporation Law.
<PAGE> 94
- INSPECTORS - APPOINTMENT. The directors, in advance of any meeting,
may, but need not, appoint one or more inspectors to act at the meeting or any
adjournment thereof. If an inspector or inspectors are not appointed, the person
presiding at the meeting may, but need not, appoint one or more inspectors. In
case any person who may be appointed as an inspector fails to appear or act, the
vacancy may be filled by appointment made by the directors in advance of the
meeting or at the meeting by the person presiding thereat. Each inspector, if
any, 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, if any,
shall determine the number of shares outstanding and the voting power of each,
the 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 shareholders. On request of the person presiding at the meeting or any
shareholder, the inspector or inspectors, if any, shall make a report in writing
of any challenge, question or matter determined by him or them and execute a
certificate of any fact found by him or them.
- QUORUM. Except for a special election of directors pursuant to Section
603(b) of the Business Corporation Law, and except as herein otherwise provided,
the holders of a majority of the outstanding shares shall constitute a quorum at
a meeting of shareholders for the transaction of any business. When a quorum is
once present to organize a meeting, it is not broken by the subsequent
withdrawal of any shareholders. The shareholders present may adjourn the meeting
despite the absence of a quorum.
- VOTING. Each share shall entitle the holder thereof to one vote. In the
election of directors, a plurality of the votes cast shall elect. Any other
action shall be authorized by a majority of the votes cast except where the
Business Corporation Law prescribes a different proportion of votes.
<PAGE> 95
SHAREHOLDER ACTION WITHOUT MEETINGS. Whenever shareholders are required or
permitted to take any action by vote, such action may be taken without a meeting
on written consent, setting forth the action so taken, signed by the holders of
all shares.
ARTICLE II.
GOVERNING BOARD
FUNCTIONS AND DEFINITIONS. The business of the corporation shall be managed
under the direction of a governing board, which is herein referred to as the
"Board of Directors" or "directors" notwithstanding that the members thereof may
otherwise bear the titles of trustees, managers, or governors or any other
designated title, and notwithstanding that only one director legally constitutes
the Board. The word "director" or "directors" likewise herein refers to a member
or to members of the governing board notwithstanding the designation of a
different official title or titles. The use of the phrase "entire board" herein
refers to the total number of directors which the corporation would have if
there were no vacancies.
QUALIFICATIONS AND NUMBER. Each director shall be at least eighteen years of
age. A director need not be a shareholder, a citizen of the United States, or a
resident of the State of New York. The number of directors which shall
constitute the whole Board shall be not less than one (1). The first Board shall
consist of ______ directors. The number of directors constituting the board may
be fixed from time to time by the by-laws, or by action of the shareholders or
of the board under the specific provisions of a by-law adopted by the
shareholders. If not otherwise fixed under this paragraph, the number shall be
one (1). The number of directors may be increased or decreased by action of
shareholders or of the directors, provided that any action of the directors to
effect such increase or decrease shall require the vote of a majority of the
entire Board. No decrease shall shorten the term of any incumbent director.
ELECTION AND TERM. The first Board of Directors shall be elected by the
incorporator or incorporators and shall hold office until the first annual
meeting of shareholders and until their successors have been elected and
qualified. Thereafter, directors who are elected at an annual meeting of
shareholders, and directors who are elected in the interim by the shareholders
to fill vacancies and newly created directorships, shall hold office until the
next annual meeting of shareholders and until their successors have been elected
and qualified; and directors who are elected in the interim by the directors to
fill vacancies and newly created directorships shall hold office until the next
meeting of shareholders at which the election of directors is in the regular
order of business and until their successors have been elected and qualified. In
the interim between annual meetings of shareholders or of special meetings of
shareholders called for the election of directors, newly created directorships
and any vacancies in the Board of Directors, including vacancies resulting from
the removal of directors for cause or without cause, may be filled by the vote
of the remaining directors then in office, although less than a quorum exists.
<PAGE> 96
MEETINGS.
- TIME. Meetings shall be held at such time as the Board shall fix,
except that the first meeting of a newly elected Board shall be held as soon
after its election as the directors may conveniently assemble.
- PLACE. Meetings shall be held at such place within or without the State
of New York as shall be fixed by the Board.
- CALL. No call shall be required for regular meetings for which the time
and place have been fixed. Special meetings may be called by or at the direction
of the Chairman of the Board, if any, of the President, or of a majority of the
directors in office.
- NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall be required
for regular meetings for which the time and place have been fixed. Written,
oral, or any other mode of notice of the time and place shall be given for
special meetings in sufficient time for the convenient assembly of the directors
thereat. The notice of any meeting need not specify the purpose of the meeting.
Any requirement of furnishing a notice shall be waived by any director who signs
a waiver of notice before or after the meeting, or who attends the meeting
without protesting, prior thereto or at its commencement, the lack of notice to
him.
- QUORUM AND ACTION. A majority of the entire Board shall constitute a
quorum except when a vacancy or vacancies prevents such majority, whereupon a
majority of the directors in office shall constitute a quorum, provided such
majority shall constitute at least one-third of the entire Board. A majority of
the directors present, whether or not a quorum is present, may adjourn a meeting
to another time and place. Except as herein otherwise provided, the act of the
Board shall be the act, at a meeting duly assembled, by vote of a majority of
the directors present at the time of the vote, a quorum being present at such
time. Any one or more members of the Board of Directors or of any committee
thereof may participate in a meeting of said Board or of any such committee by
means of a conference telephone or similar communications equipment allowing all
persons participating in the meeting to hear each other at the same time, and
participation by such means shall constitute presence in person at the meeting.
- CHAIRMAN OF THE MEETING. The Chairman of the Board, if any and if
present and acting, shall preside at all meetings. Otherwise, the President, if
present and acting, or any other director chosen by the Board, shall preside.
<PAGE> 97
REMOVAL OF DIRECTORS. Any or all of the directors may be removed for cause or
without cause by the shareholders. One or more of the directors may be removed
for cause by the Board of Directors.
COMMITTEES. Whenever the Board of Directors shall consist of more than three
members, the Board of Directors, by resolution adopted by a majority of the
entire Board of Directors, may designate from their number three or more
directors to constitute an Executive Committee and other committees, each of
which, to the extent provided in the resolution designating it, shall have the
authority of the Board of Directors with the exception of any authority the
delegation of which is prohibited by Section 712 of the Business Corporation
Law.
WRITTEN ACTION. Any action required (or permitted to be taken by the Board of
Directors or by any committee thereof may be taken without a meeting if all of
the members of the Board of Directors or of any committee thereof consent in
writing to the adoption of a resolution authorizing the action. The resolution
and the written consents thereto by the members of the Board of Directors or of
any such committee shall be filed with the minutes of the proceeding of the
Board of Directors or of any such committee.
ARTICLE III.
OFFICERS
The directors may elect or appoint a Chairman of the Board of Directors,
a President, one or more Vice-Presidents, a Secretary, one or more Assistant
Secretaries, a Treasurer, one or more Assistant Treasurers, and such other
officers as they may determine. The President may but need not be a director.
Any two or more offices may be held by the same person except the offices of
President and Secretary; or, when all of the issued and outstanding shares of
the corporation are owned by one person, such person may hold all or any
combination of offices.
Unless otherwise provided in the resolution of election or appointment,
each officer shall hold office until the meeting of the Board of Directors
following the next annual meeting of shareholders and until his successor has
been elected and qualified.
Officers shall have the powers and duties defined in the resolutions
appointing them.
The Board of Directors may remove any officer for cause or without cause.
<PAGE> 98
ARTICLE IV.
STATUTORY NOTICES TO SHAREHOLDERS
The directors may appoint the Treasurer or other fiscal officer and/or
the Secretary or any other officer to cause to be prepared and furnished to
shareholders entitled thereto any special financial notice and/or any financial
statement, as the case may be, which may be required by any provision of law,
and which, more specifically, may be required by Sections 510, 511, 515, 516,
517, 519, and 520 of the Business Corporation Law.
ARTICLE V.
BOOKS AND RECORDS
The corporation shall keep correct and complete books and records of
account and shall keep minutes of the proceedings of the shareholders, of the
Board of Directors, and/or any committee which the directors may appoint, and
shall keep at the office of the corporation in the State of New York or at the
office of the transfer agent or registrar, if any, in said state, a record
containing the names and addresses of all shareholders, the number and class of
shares held by each, and the dates when they respectively became the owners of
record thereof. Any of the foregoing books, minutes, or records may be in
written form or in any other form capable of being converted into written form
within a reasonable time.
ARTICLE VI.
CORPORATE SEAL
The corporate seal, if any, shall be in such form as the Board of
Directors shall prescribe.
ARTICLE VII.
FISCAL YEAR
The fiscal year of the corporation shall be fixed, and shall be subject
to change from time to time, by the Board of Directors.
ARTICLE VIII.
CONTROL OVER BY-LAWS
The shareholders entitled to vote in the election of directors or the
directors upon compliance with any statutory requisite may amend or repeal the
By-Laws and may adopt new
<PAGE> 99
By-Laws, except that the directors may not amend or repeal any By-Law or adopt
any new By-Law, the statutory control over which is vested exclusively in the
said shareholders or in the incorporators. By-Laws adopted by the incorporators
or directors may be amended or repealed by the said shareholders.
