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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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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) JANUARY 15, 1997
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INCO HOMES CORPORATION
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
DELAWARE 0-21378 33-0534734
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(STATE OR OTHER JURISDICTION (COMMISSION (IRS EMPLOYER
OF INCORPORATION) FILE NUMBER) IDENTIFICATION NO.)
1282 WEST ARROW HIGHWAY, UPLAND, CALIFORNIA 91786
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE (909) 981-8989
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NO CHANGE
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(FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT.)
TOTAL PAGES: 3 .
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ITEM 5. OTHER EVENTS
At a special meeting of the stockholders of the Registrant held on
January 15, 1997, the stockholders approved an amendment (the "Amendment") to
the Registrant's Restated Certificate of Incorporation effecting a 6-for-1
reverse stock split (the "Reverse Split") of the Registrant's issued and
outstanding Common Stock. The Amendment was filed with the Delaware Secretary of
State the same day, and the Reverse Split became effective at 12:01 a.m. Eastern
Standard Time, on January 16, 1997.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits
3(i) Articles of Incorporation, as amended
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
INCO HOMES CORPORATION
Date: January 27, 1997 By: /s/ IRA C. NORRIS
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Ira C. Norris
President and Chief Executive Officer
Date: January 27, 1997 By: /s/ NORMAN B. GOLD
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Norman B. Gold
Vice President and
Chief Financial Officer
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EXHIBIT 3(i)
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
INCO HOMES CORPORATION (the "Corporation"), a corporation organized and
existing under and by virtue of the Delaware General Corporation Law, DOES
HEREBY CERTIFY:
FIRST: The name of the Corporation is Inco Homes Corporation.
SECOND: The first paragraph of Article FOURTH of the Restated Certificate
of Incorporation of the Corporation is hereby amended in its entirety to read as
follows:
"FOURTH. The Corporation is authorized to issue two classes of
shares to be designated Common Stock ("Common Stock") and Preferred Stock
("Preferred Stock"), respectively. The total number of shares which the
Corporation is authorized to issue is twenty-one million (21,000,000).
Twenty million (20,000,000) shares shall be Common Stock and one million
(1,000,000) shares shall be Preferred Stock. The Common Stock shall have a
par value of $0.01 per share and the Preferred Stock shall have a par value
of $0.01 per share. Upon the amendment of this Article, every six (6)
issued and outstanding shares of Common Stock, $0.01 par value per share
("Old Common Stock"), shall be automatically and without any action on the
part of the stockholders converted into and reconstituted as one (1) share
of Common Stock, $0.01 par value per share ("New Common Stock'), subject to
the treatment of fractional interests as described below. Each holder of a
certificate or certificates which immediately prior to the Amendment of the
Restated Certificate of Incorporation becoming effective pursuant to the
General Corporation Law of the State of Delaware (the "Effective Date"),
represented outstanding shares of the Old Common Stock shall be entitled to
receive a certificate for the number of shares of New Common Stock they own
by presenting their old certificate(s) to the Corporation's transfer agent
for cancellation and exchange.
No scrip or fractional certificates will be issued. In lieu of
fractional shares, the Corporation will issue one additional share of New
Common Stock, or cash if it so elects. If the Corporation elects to make a
cash payment in lieu of fractional shares, such payment will be based on
the average closing price of the New Common Stock on the NASDAQ SmallCap
Market for the five trading days preceding the Effective Date. Such cash
payment, if elected by the Corporation, would be made upon surrender to the
Corporation's transfer agent of stock certificates representing a
fractional share interest. The ownership of a fractional interest will not
give the holder thereof any voting, dividend or other rights except the
right to receive payment therefor as described herein."
THIRD: This Certificate of Amendment of Restated Certificate of
Incorporation shall be effective as of 12:01 a.m., Eastern Standard Time, on
January 16, 1997.
FOURTH:This Certificate of Amendment of Restated Certificate of
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Incorporation was duly adopted by the requisite vote of the Board of Directors
of the corporation.
FIFTH: That at a special meeting of stockholders held on January 15, 1997,
in accordance with Section 222 of the General Corporation Law of the State of
Delaware, the necessary number of shares as required by statute were voted in
favor of the amendments.
SIXTH: That said amendments were duly adopted in accordance with the
provisions of Section 242 of the Delaware General Corporation law.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed by its duly authorized officers as of this 15th day of January 1997.
INCO HOMES CORPORATION,
a Delaware corporation
By: /s/ IRA C. NORRIS
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Ira C. Norris, Chairman of the Board
President and Chief Executive Officer
ATTEST:
By: /s/ ROBERT H. DASKAL
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Robert H. Daskal, Executive Vice President,
Chief Financial Officer and Secretary
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RESTATED CERTIFICATE OF INCORPORATION
OF
INCO HOMES CORPORATION
[Originally Incorporated on October 28, 1992]
The undersigned, Ira C. Norris and Thomas A. Bevilacqua, hereby certify
that:
1. They are the duly elected and acting President and Assistant
Secretary, respectively, of said corporation.
2. The Certificate of Incorporation of said corporation shall be amended
and restated to read in full as follows:
FIRST. The name of the Corporation is Inco Homes Corporation (the
"Corporation").
SECOND. The address of its registered office in the State of Delaware is 32
Loockerman Square, Suite L-100, in the City of Dover, County of Kent. The name
of its registered agent at such address is The Prentice-Hall Corporation System,
Inc.
THIRD. The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
FOURTH. The Corporation is authorized to issue two classes of shares to be
designated Common Stock ("Common Stock") and Preferred Stock ("Preferred
Stock"), respectively. The total number of shares which the Corporation is
authorized to issue is twenty-one million (21,000,000). Twenty million
(20,000,000) shares shall be Common Stock and one million (1,000,000) shares
shall be Preferred Stock. The Common Stock shall have a par value of $0.01 per
share and the Preferred Stock shall have a par value of $0.01 per share.
The Preferred Stock may be issued from time to time in one or more series.
The Board of Directors is expressly authorized, in the resolution or resolutions
providing for the issuance of any wholly unissued series of Preferred Stock, to
fix, state and express the powers, rights, designations, preferences,
qualifications, limitations and restrictions thereof, including without
limitation: the rate of dividends upon which and the times at which dividends on
shares of such series shall be payable and the preference, if any, which such
dividends shall have relative to dividends on shares of any other class or
classes or any other series of stock of the Corporation; whether such dividends
shall be cumulative or noncumulative, and if cumulative, the date or dates from
which dividends on shares of such series shall be cumulative; the voting rights,
if any, to be provided for shares of such series; the rights, if any, which the
holders of shares of such series shall have in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
Corporation; the rights, if any, which the holders of shares of such series
shall have to convert such shares into or exchange such shares for shares of
stock of the Corporation, and the terms and conditions, including price and rate
of exchange of such conversion or
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exchange; and the redemption rights (including sinking fund provisions), if
any, for shares of such series; and such other powers, rights, designations,
preferences, qualifications, limitations and restrictions as the Board of
Directors may desire to so fix. The Board of Directors is also expressly
authorized to fix the number of shares constituting such series and to increase
or decrease the number of shares of any series prior to the issuance of shares
of that series and to increase or decrease the number of shares of any series
subsequent to the issuance of shares of that series, but not to decrease such
number below the number of shares of such series then outstanding. In case the
number of shares of any series shall be so decreased, the shares constituting
such decrease shall resume the status which they had prior to the adoption of
the resolution originally fixing the number of shares of such series.
FIFTH. In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is authorized to make, alter or repeal any or
all o f the Bylaws of the Corporation; provided, however, that any Bylaw
amendment adopted by the Board of Directors increasing or reducing the
authorized number of Directors shall require the affirmative vote of two-thirds
of the total number of Directors which the Corporation would have if there were
no vacancies. In addition, new Bylaws may be adopted or the Bylaws may be
amended or repealed by the affirmative vote of at least 66-2/3% of the combined
voting power of all shares of the Corporation entitled to vote generally in the
election of directors, voting together as a single class. Notwithstanding
anything contained in this Restated Certificate of Incorporation to the
contrary, the affirmative vote of the holders of at least 66-2/3% of the
combined voting power of all shares of the Corporation entitled to vote
generally in the election of directors, voting together as a single class, shall
be required to alter, change, amend, repeal or adopt any provision inconsistent
with, this Article FIFTH.
SIXTH. (a) Any action required or permitted to be taken by the stockholders
of the Corporation must be effected at an annual or special meeting of
stockholders of the Corporation and may not be effected by any consent in
writing of such stockholders; and
(b) Notwithstanding anything contained in this Restated Certificate of
Incorporation to the contrary, the affirmative vote of the holders of at least
66-2/3% of the combined voting power of all shares of the Corporation entitled
to vote generally in the election of directors, voting together as a single
class, shall be required to alter, change, amend, repeal or adopt any provision
inconsistent with, this Article SIXTH.
SEVENTH. (a) The number of Directors which shall constitute the whole Board
of Directors of this corporation shall be as specified in the Bylaws of this
corporation, subject to this Article SEVENTH.
(b) The Directors shall be classified with respect to the time for which
they severally hold office into three classes designated Class I, Class II and
Class III, as nearly equal in number as possible, as shall be provided in the
manner specified in the Bylaws of the Corporation. Each Director shall serve for
a term ending on the date of the third annual meeting of stockholders following
the annual meeting at which the Director was elected; provided, however, that
each initial Director in Class I shall hold office until the annual meeting of
stockholders in 1996; each initial Director in Class II shall hold office until
the annual meeting of stockholders in 1995; and each initial Director in Class
III shall hold office until the annual meeting of stockholders in 1994.
Notwithstanding the foregoing provi-
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sions of this Article, each Director shall serve until his successor is duly
elected and qualified or until his death, resignation or removal.
(c) In the event of any increase or decrease in the authorized number of
Directors, (i) each Director then serving as such shall nevertheless continue as
a Director of the class of which he is a member until the expiration of his
current term, or his early resignation, removal from office or death, and (ii)
the newly created or eliminated directorship resulting from such increase or
decrease shall be apportioned by the Board of Directors among the three classes
of Directors so as to maintain such classes as nearly equally as possible.
(d) Any Director or the entire Board of Directors may be removed by the
affirmative vote of the holders of at least 66-2/3% of the combined voting power
of all shares of the Corporation entitled to vote generally in the election of
directors, voting together as a single class.
(e) Notwithstanding anything contained in this Restated Certificate of
Incorporation to the contrary, the affirmative vote of the holders of at least
66-2/3% of the combined voting power of all shares of the Corporation entitled
to vote generally in the election of directors, voting together as a single
class, shall be required to alter, change, amend, repeal or adopt any provision
inconsistent with, this Article SEVENTH.
EIGHTH. (a) 1. In addition to any affirmative vote required by law, any
Business Combination (as hereinafter defined) shall require the affirmative vote
of at least 66-2/3% of the combined voting power of all shares of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class (for purposes of this Article EIGHTH, the "Voting
Shares"). Such affirmative vote shall be required notwithstanding the fact that
no vote may be required, or that some lesser percentage may be specified by law
or in any agreement with any national securities exchange or otherwise.
2. The term "Business Combination" as used in this Article shall mean any
transaction which is referred to in any one or more of the following clauses (A)
through (E):
(A) any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with or into (i) any Interested Stockholder (as
hereinafter defined) or (ii) any other corporation (whether or not itself an
Interested Stockholder) which is, or after such merger or consolidation would
be, an Affiliate (as hereinafter defined) or Associate (as hereinafter defined)
of an Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related transactions) to or with,
or proposed by or on behalf of, any Interested Stockholder or any Affiliate or
Associate of any Interested Stockholder, of any assets of the Corporation or any
Subsidiary constituting not less than 5% of the total assets of the Corporation,
as reported in the consolidated balance sheet of the Corporation as of the end
of the most recent quarter with respect to which such balance sheet has been
prepared, or
(C) the issuance or transfer by the Corporation or any Subsidiary (in
one transaction or a series of related transactions) of any securities of the
Corporation or any Subsidiary to, or proposed by or on behalf of, any Interested
Stockholder or any Affiliate or Associate of any
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Interested Stockholder in exchange for cash, securities or other property (or a
combination thereof) constituting not less than 5% of the total assets of the
Corporation, as reported in the consolidated balance sheet of the Corporation as
of the end of the most recent quarter with respect to which such balance sheet
has been prepared, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or any spin-off or split-up of any kind of the
Corporation or any Subsidiary, proposed by or on behalf of an Interested
Stockholder or any Affiliate or Associate of any Interested Stockholder, or
(E) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or consolidation
of the Corporation with any of its Subsidiaries or any similar transaction
(whether or not with or into or otherwise involving an Interested Stockholder)
which has the effect, directly or indirectly, of increasing the percentage of
the outstanding shares of (i) any class of equity securities of the Corporation
or any Subsidiary or (ii) any class of securities of the Corporation or any
Subsidiary convertible into equity securities of the Corporation or any
Subsidiary, represented by securities of such class which are directly or
indirectly owned by any Interested Stockholder or any Affiliate or Associate of
any Interested Stockholder.
(b) The provisions of section (a) of this Article shall not be applicable
to any particular Business Combination, and such Business Combination shall
require only such affirmative vote as is required by law and any other provision
of this Restated Certificate of Incorporation, if such Business Combination has
been approved by two-thirds of the whole Board of Directors.
(c) For the purposes of this Article:
1. A "person" shall mean any individual, firm, corporation or other
entity.
2. "Interested Stockholder" shall mean, in respect of any Business
Combination, any person (other than the Corporation or any Subsidiary) who or
which, as of the record date for the determination of stockholders entitled to
notice of and to vote on such Business Combination, or immediately prior to the
consummation of any such transaction:
(A) is or was, at any time within two years prior thereto, the
beneficial owner, directly or indirectly, of 10% or more of the then outstanding
Voting Shares, or
(B) is an Affiliate or Associate of the Corporation and at any time
within two years prior thereto was the beneficial owner, directly or indirectly,
of 10% or more of the then outstanding Voting Shares, or
(C) is an assignee of or has otherwise succeeded to any shares of
capital stock of the Corporation which were at any time within two years prior
thereto beneficially owned by any Interested Stockholder, if such assignment or
succession shall have occurred in the course of a transaction, or series of
transactions, not involving a public offering within the meaning of the
Securities Act of 1933, as amended.
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3. A "person" shall be the "beneficial owner" of any Voting Shares.
(A) which such person or any of its Affiliates and Associates (as
hereinafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has (i)
the right to acquire (whether such right is exercisable immediately or only
after the passage of time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (ii) the right to vote pursuant to any
agreement, arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly, by any other
person with which such first mentioned person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for the purposes of
acquiring, holding, voting or disposing of any shares of capital stock of the
Corporation.
4. The outstanding Voting Shares shall include shares deemed owned through
application of paragraph 3 above but shall not include any other Voting Shares
which may be issuable pursuant to any agreement, or upon exercise of conversion
rights, warrants or options, or otherwise.
5. "Affiliate" and "Associate" shall have the respective meanings given
those terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on the date of adoption of this
Restated Certificate of Incorporation (the "Exchange Act").
6. "Subsidiary" shall mean any corporation of which a majority of any class
of equity security (as defined in Rule 3a11-1 of the General Rules and
Regulations under the Exchange Act) is owned, directly or indirectly, by the
Corporation; provided, however, that for the purposes of the definition of
Interested Stockholder set forth in paragraph 2 of this section (c) the term
"Subsidiary" shall mean only a corporation of which a majority of each class of
equity security is owned, directly or indirectly, by the Corporation.
(d) A majority of the directors shall have the power and duty to determine
for the purposes of this Article on the basis of information known to them, (1)
whether a person is an Interested Stockholder, (2) the number of Voting Shares
beneficially owned by any person, (3) whether a person is an Affiliate or
Associate of another, (4) whether a person has an agreement, arrangement or
understanding with another as to the matters referred to in paragraph 3 of
section (c), or (5) whether the assets subject to any Business Combination or
the consideration received for the issuance or transfer of securities by the
Corporation or any Subsidiary constitutes not less than 5% of the total assets
of the Corporation.
(e) Nothing contained in this Article shall be construed to relief any
Interested Stockholder from any fiduciary obligation imposed by law.
(f) Notwithstanding anything contained in this Restated Certificate of
Incorporation to the contrary, the affirmative vote of the holders of at least
66-2/3% of the combined voting power of all shares of the Corporation entitled
to vote generally in the election of directors, voting
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together as a single class, shall be required to alter, change, amend, repeal or
adopt any provision inconsistent with, this Article EIGHTH.
NINTH. This Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Restated Certificate of Incorporation, in
the manner now or hereafter prescribed by statute, and all rights conferred on
stockholders herein are granted subject to this reservation.
TENTH. A Director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a Director, except for liability (i) for any breach of the Director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the Director derived any improper
personal benefit. If the Delaware General Corporation Law is hereafter amended
to authorize, with the approval of a corporation's stockholders, further
reductions in the liability of a corporation's directors for breach of fiduciary
duty, then a Director of the Corporation shall not be liable for any such breach
to the fullest extent permitted by the Delaware General Corporation Law as so
amended. Any repeal or modification of the foregoing provisions of this Article
TENTH by the stockholders of the Corporation shall not adversely affect any
right or protection of a Director of the Corporation existing at the time of
such repeal or modification.
3. In lieu of a meeting and vote of stockholders, stockholders having not
less than the minimum number of votes necessary to authorize said restatement
have given written consent to said restatement and written notice thereof has
been given to those stockholders who have not consented in writing in accordance
with the provisions of Section 228 of the General Corporation Law of the State
of Delaware.
4. The aforementioned restatement was duly adopted by the corporation's
Board of Directors and stockholders in accordance with the applicable provisions
of Sections 228, 242, and 245 of the General Corporation Law of the State of
Delaware.
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IN WITNESS WHEREOF, the corporation has caused this Restated Certificate of
Incorporation to be signed by Ira C. Norris and Thomas A. Bevilacqua, the
President and Assistant Secretary, respectively, of the corporation on this 28th
of February, 1993.
/s/ IRA C. NORRIS
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Ira C. Norris, President
ATTEST: /s/ THOMAS A. BEVILACQUA
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Thomas A. Bevilacqua,
Assistant Secretary
