-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, LarsYM0gr3SZhn0vKsjsxN9Ai2O2s9zzSvZ17L0kITrqtbjT8VwQAxEsXEQAsTXK UGqMHC80hQSmuqQfaOoHwg== 0000950146-97-000303.txt : 19970307 0000950146-97-000303.hdr.sgml : 19970307 ACCESSION NUMBER: 0000950146-97-000303 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 19970219 ITEM INFORMATION: Bankruptcy or receivership FILED AS OF DATE: 19970306 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: ICH CORP /DE/ CENTRAL INDEX KEY: 0000049588 STANDARD INDUSTRIAL CLASSIFICATION: ACCIDENT & HEALTH INSURANCE [6321] IRS NUMBER: 436069928 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-07697 FILM NUMBER: 97551819 BUSINESS ADDRESS: STREET 1: 500 N AKARD ST CITY: DALLAS STATE: TX ZIP: 75201 BUSINESS PHONE: 2149547111 MAIL ADDRESS: STREET 1: P.O. BOX 2699 STREET 2: SUITE 400 CITY: DALLAS STATE: TX ZIP: 75221 FORMER COMPANY: FORMER CONFORMED NAME: SOUTHWESTERN LIFE CORP DATE OF NAME CHANGE: 19940808 FORMER COMPANY: FORMER CONFORMED NAME: ICH CORP DATE OF NAME CHANGE: 19930506 FORMER COMPANY: FORMER CONFORMED NAME: ICH CORP/CONSOL NAT/RTS/CFR/MOD AMER LIFE INS/SW LIFE INS/CF DATE OF NAME CHANGE: 19930505 8-K 1 8-K EDGAR FILING - ------------------------------------------------------------------------------ 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): February 19, 1997 I.C.H. Corporation (Exact name of registrant as specified in its charter) Delaware 1-7697 43-6069928 (State or other jurisdiction (Commission (IRS Employer of incorporation) File Number) Identification No.) 9404 Genesee Avenue La Jolla, California 92037 Registrant's telephone number, including area code: (619) 587-8533 Not Applicable (Former name or former address, if changed since last report) - ------------------------------------------------------------------------------ 500 North Akard Street Dallas, Texas 75201 75201 (Address of principal executive offices) (Zip Code) Item 3. Bankruptcy or Receivership. I.C.H. Corporation, a Delaware corporation (the "Corporation"), together with Care Financial Corporation ("CFC") and SWL Holding Corporation ("SWL"), each a Delaware corporation and a wholly owned subsidiary of the Corporation (the Corporation, CFC and SWL herein referred to collectively, as the "Debtors") filed voluntary petitions for relief with the United States Bankruptcy Court for the Northern District of Texas, Dallas Division (the "Bankruptcy Court") under Chapter 11 of the United States Bankruptcy Code, Case No. 395-36351-RCM-11, on October 10, 1995. On February 7, 1997, the Bankruptcy Court entered an order confirming the Debtors' First Amended Joint Plan of Reorganization under Chapter 11 (the "Joint Plan"). The effective date of the Joint Plan occurred on February 19, 1997 (the "Effective Date"). The transfer records for all of the Corporation's publically traded securities were closed as of the close of business on the Effective Date. Pursuant to the Joint Plan, certain assets constituting substantially all of the assets of the Corporation, along with all of the assets of CFC and SWL were transferred to the Lone Star Liquidating Trust (the "Trust") for the benefit of creditors of the Debtors. The Trust will liquidate the assets transferred to it and distribute the proceeds thereof to claimants of the Debtors pursuant to the terms of the Joint Plan. Holders of general unsecured claims against the Corporation will receive a beneficial interest in the proceeds of all assets of the Trust, which, following payment of or provision for all other claims as provided in Article II and Section 4.1(a) of the Joint Plan, will be distributed to the general unsecured claimants according to the procedures set forth in Section 4.1(b) of the Joint Plan. March 3, 1997 has been established as the initial distribution date for payment by the Trust to holders of 11 1/4% Senior Subordinated Notes due 1996 and 11 1/4% Senior Subordinated Notes due 2003. Subsequent distributions of available cash will be made by the Trust on the last business day of each calendar quarter, commencing March 31, 1997, so long as available cash exceeds the reserve amount, currently set at $10 million. The record date for distributions will be 15 business days prior to the respective distribution date. The Corporation retained certain designated assets valued at approximately $10.5 million including the following: $2,790,203.15, land and improvements thereon in Perry Park, Kentucky, and all capital stock of Care Financial Corporation, SWL Holding Corporation and Bankers Multiple Line Insurance Company and also received a $500,000 contribution pursuant to a third party settlement. On the Effective Date, all outstanding shares of preferred stock and common stock of the Corporation (collectively, the "Stock") were cancelled. The Corporation (hereinafter also referred to as "Reorganized ICH") will issue new common stock ("Common Stock") to eligible holders of the cancelled Stock as outlined in the Corporation's Form 8-K, filed with the Securities and Exchange Commission on February 18, 1997 and incorporated by reference. As a result of the Effective Date transactions, the Corporation is now owned by its previously existing preferred and common stockholders. Information regarding the number of shares of the Corporation currently issued and outstanding, the number of shares of Reorganized ICH Stock reserved for issuance pursuant to the Joint Plan, and the expected aggregate number of Shares outstanding after implementation of the Joint Plan was included in the Corporation's Form 8-K filed with the Securities and Exchange Commission on February 18, 1997, and is incorporated herein by reference. Information as to the assets and liabilities of the Corporation as of December 31, 1996, as filed with the Bankruptcy Court is contained in the Corporation's Monthly Operating Report for the Month Ending December 1996, was filed as Exhibit 99 to the Corporation's Form 8-K which was filed with the Securities and Exchange Commission on February 3, 1997, and is incorporated herein by reference. Item 7. Financial Statements and Exhibits. (c) Exhibits 2.1 First Amended Joint Plan of Reorganization Under Chapter 11 (incorporated by reference to Exhibit B to Exhibit 99.1 to the Corporation's Form 8-K filed with the Securities and Exchange Commission on November 22, 1996). 2.2 First Nonmaterial Modification to the First Amended Joint Plan of Reorganization Under Chapter 11 (incorporated by reference to Exhibit 2.2 to the Corporation's Form 8-K filed with the Securities and Exchange Commission on February 18, 1997). 2.3 Letter to Robert T. Shaw, Henry W. Simon, Jr. and Russell L. Munsch agreeing to nonmaterial modification to the First Amended Joint Plan of Reorganization Under Chapter 11, as filed with the Bankruptcy Court (incorporated by reference to Exhibit 2.3 to the Corporation's Form 8-K filed with the Securities and Exchange Commission on February 18, 1997). 99.1 Order Confirming the First Amended Joint Plan of Reorganization under Chapter 11, as entered by the United States Bankruptcy Court for the Northern District of Texas, Dallas Division, on February 7, 1997 (incorporated by reference to Exhibit 99.1 to the Corporation's Form 8-K filed with the Securities and Exchange Commission on February 18, 1997). 99.2 Findings of Fact and Conclusions of Law in Support of Order Confirming First Amended Joint Plan of Reorganization Under Chapter 11 (incorporated by reference to Exhibit 99.2 to the Corporation's Form 8-K filed with the Securities and Exchange Commission on February 18, 1997). 99.3 Monthly Operating Report for the Month Ending December 1996, filed with the United States Bankruptcy Court for the Northern District of Texas, Dallas Division, Case No. 395-36351-RCM-11 (incorporated by reference to Exhibit 99 to the Corporation's Form 8-K filed with the Securities and Exchange Commission on February 3, 1997). 99.4 Press Release issued February 20, 1997. 99.5 Amended and Restated Certificate of Incorporation of ICH Corporation. 99.6 Amended and Restated By-Laws of ICH Corporation. SIGNATURE Pursuant to the requirements of the Securities and Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. I.C.H. CORPORATION Date: March 6, 1997 By: /s/ James R. Arabia -------------------------------- Name: James R. Arabia Title: President Index to Exhibits Sequentially Exhibit Numbered Number Description Pages - ------ ----------- ------------ 2.1 First Amended Joint Plan of Reorganization Under Chapter 11 (incorporated by reference to Exhibit B to Exhibit 99.1 to the Corporation's Form 8-K filed with the Securities and Exchange Commission on November 22, 1996). 2.2 First Nonmaterial Modification to the First Amended Joint Plan of Reorganization Under Chapter 11 (incorporated by reference to Exhibit 2.2 to the Corporation's Form 8-K filed with the Securities and Exchange Commission on February 18, 1997). 2.3 Letter to Robert T. Shaw, Henry W. Simon, Jr. and Russell L. Munsch agreeing to nonmaterial modification to the First Amended Joint Plan of Reorganization Under Chapter 11, as filed with the Bankruptcy Court (incorporated by reference to Exhibit 2.3 to the Corporation's Form 8-K filed with the Securities and Exchange Commission on February 18, 1997). 99.1 Order confirming the First Amended Joint Plan of Reorganization under Chapter 11, as entered by the United States Bankruptcy Court for the Northern District of Texas, Dallas Division, on February 7, 1997 (incorporated by reference to Exhibit 99.1 to the Corporation's Form 8-K filed with the Securities and Exchange Commission on February 18, 1997). 99.2 Findings of Fact and Conclusions of Law in Support of Order Confirming First Amended Joint Plan of Reorganization Under Chapter 11 (incorporated by reference to Exhibit 99.2 to the Corporation's Form 8-K filed with the Securities and Exchange Commission on February 18, 1997). 99.3 Monthly Operating Report for the Month Ending December 1996, filed with the United States Bankruptcy Court for the Northern District of Texas, Dallas Division, Case No. 395-36351-RCM-11 (incorporated by reference to Exhibit 99 to the Corporation's Form 8-K filed with the Securities and Exchange Commission on February 3, 1997). 99.4 Press Release issued February 20, 1 1997. 99.5 Amended and Restated Certificate of Incorporation of ICH Corporation. 99.6 Amended and Restated By-Laws of ICH Corporation. EX-99.4 2 NEWS RELEASE ICH CORPORATION 500 North Akard Dallas, Texas 75201 214. 954. 7111 NEWS RELEASE ================================================================================ FOR IMMEDIATE RELEASE DALLAS, TX--February 20, 1997--The ICH Corporation ("ICH") First Amended Joint Plan of Reorganization under Chapter 11 approved by the United States Bankruptcy Court for the Northern District of Texas became effective yesterday. The transfer records of all ICH public securities, including its 11 1/4% Senior Subordinated Notes due 1996 and 11 1/4% Senior Subordinated Notes due 2003 and its common stock and preferred stock, have been closed as of the close of business on February 19, 1997. Susan Brown, the former Chairman and CEO of ICH and the newly named Managing Trustee of the Lone Star Liquidating Trust, said she was pleased that the Chapter 11 cases of ICH and its subsidiaries have been concluded successfully and expeditiously with unsecured claims to be paid from the Trust an estimated 96(cents symbol) on the dollar (translating into approximately 99.9% on the face amount of the ICH Notes) and preferred and common shareholders allowed to retain a stake in the form of common stock in Reorganized ICH. According to the terms of the Plan, all assets of ICH, and its subsidiaries, other than assets valued in the aggregate at approximately $10.5 million which will be retained by Reorganized ICH, will be transferred to the newly established Trust. The Trust will be responsible for paying all administrative and priority claims. Unsecured creditors of ICH, including holders of ICH Notes, will receive an initial cash distribution and beneficial interests in the Trust entitling them to subsequent distributions of cash. March 3, 1997, has been established as the initial distribution date under the Plan for payment to holders of ICH Notes as of February 19, 1997. Subsequent distributions of available cash will be made on the last business day of each calendar quarter, commencing on March 31, 1997, so long as cash available for distribution exceeds a minimum amount. The Trustees --MORE-- have presently set that minimum at $10 million. The record date for such subsequent distributions will be 15 business days prior to the distribution date, and only holders of record of Trust Interests on the record date will be entitled to distributions. John Tobin, Jeff Schultz and Gregory Lathrop, former members of the ICH Unsecured Creditors Committee, have been named Supervisory Trustees of the Trust. Generally, preferred and common stockholders will be entitled to exchange their securities for stock in Reorganized ICH or may elect a cash payment in lieu of new stock. James R. Arabia has been named President and Chief Executive Officer of Reorganized ICH, and will also serve as a member of the board of directors of the reorganized company, together with Michael Dunn, Kenneth Giddens and Carl Robinson. All of the directors of Reorganized ICH are former members of the ICH Equity Committee. Reorganized ICH has entered into an agreement to purchase 100% of the outstanding stock of Sybra, Inc., an operating company which owns 150 Arby's restaurants in four states, for $16 million plus the repayment of certain indebtedness of Sybra, Inc., which indebtedness shall not exceed $23.7 million. The proposed sale will be accomplished in simultaneous transactions that will include the sale of certain of the Arby's restaurant properties to U.S. Restaurant Properties Master L.P. for $45 million, and the leasing of those properties by Sybra, Inc. These transactions are subject to, among other things, completion of due diligence, the purchasers obtaining financing for the transaction, and certain consents from third parties. Subject to the foregoing, the transactions are expected to close by April 18, 1997. FOR FURTHER INFORMATION CONTACT: Susan A. Brown (214) 954-7660 James R. Arabia (619) 587-8533 ### EX-99.5 3 CERTIFICATE OF INCORPORATION OF ICH CORPORATION AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF I.C.H. CORPORATION Pursuant to Sections 245 and 303 of the Delaware General Corporation Law I.C.H. Corporation, a corporation existing under the laws of the State of Delaware (hereinafter called the "Corporation"), does hereby certify: FIRST: The name of the Corporation is I.C.H. Corporation. SECOND: The Corporation was originally incorporated under the name I.C.H. Corporation. THIRD: The original Certificate of Incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on April 22, 1977. FOURTH: This Amended and Restated Certificate of Incorporation is being effected pursuant to Sections 245 and 303 of the Delaware General Corporation Law. Provision for the making of this Amended and Restated Certificate of Incorporation of the Corporation is contained in the First Amended Joint Plan of Reorganization of I.C.H. Corporation, f/k/a Southwestern Life Corporation, f/k/a I.C.H. Corporation, SWL Holding Corporation, f/k/a Life Interests Corporation and Care Financial Corporation, f/k/a Health Interests Corporation, Case Nos. 395-36351 (Chapter 11), 395-36352 (Chapter 11) and 395-36354 (Chapter 11), respectively, under Chapter 11 of the United States Bankruptcy Code, as confirmed by an order of the United States Bankruptcy Court for the Northern District of Texas. The bankruptcy petition was filed on October 10, 1995; the confirmation date was January 31, 1997 with an effective date of February 19, 1997. FIFTH: The Certificate of Incorporation is amended and restated in its entirety to read as herein set forth in full: AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF I.C.H. CORPORATION FIRST: The name of the corporation is: I.C.H. Corporation SECOND: The address of its registered office in the State of Delaware is c/o United Corporate Services, Inc., 15 East North Street, in the City of Dover, County of Kent, State of Delaware 19901. The name of its registered agent at such address is United Corporate Services, Inc. THIRD: The nature of the business or purposes to be conducted or promoted 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 shall be authorized to issue the following shares: Class Number of Shares Par Value ----- ---------------- --------- Common 9,000,000 $0.01 Preferred 1,000,000 $0.01 The designations and the powers, preferences and rights, and the qualifications or restrictions thereof are as follows: The Preferred shares shall be issued from time to time in one or more series, with such distinctive serial designations as shall be stated and expressed in the resolution or resolutions providing for the issue of such shares as adopted by the Board of Directors; the Board of Directors is expressly authorized to fix the annual rate or rates of dividends for the particular series, the dividend payment dates for the particular series and the date from which dividends on all shares of such series issued prior to the record date for the first dividend payment date shall be cumulative, the redemption price or prices for the particular series, the voting powers for the particular series, the rights, if any, of holders of the shares of the 2 particular series to convert the same into shares of any other series or class or other securities of the corporation, with any provisions for the subsequent adjustment of such conversion rights, the rights, if any, of the particular series to participate in distributions or payments upon liquidation, dissolution or winding up of the corporation, and to classify or reclassify any unissued preferred shares by fixing or altering from time to time any of the foregoing rights, privileges and qualifications. All the Preferred shares of any one series shall be identical with each other in all respects, except that shares of any one series issued at different times may differ as to the dates from which dividends thereon shall be cumulative; and all preferred shares shall be of equal rank, regardless of series, and shall be identical in all respects except as to the particulars fixed by the Board as hereinabove provided or as fixed herein. Notwithstanding anything contained in this Amended and Restated Certificate of Incorporation to the contrary, the Corporation shall not issue nonvoting equity securities to the extent prohibited by Section 1123 of the United States Bankruptcy Code, 11 U.S.C. Section 1123; provided, however, that this provision (i) will have no further force and effect beyond that required by such Section, (ii) will have such force and effect, if any, only for so long as such Section is in effect and applicable to the Corporation and (iii) in all events may be amended or eliminated in accordance with the applicable law as from time to time in effect. FIFTH: The following provisions are inserted for the management of the business and the conduct of the affairs of the Corporation, and for further definition, limitation and regulation of the powers of the Corporation and of its directors and stockholders: A. The business and affairs of the Corporation shall be managed by or under the direction of the board of directors. In addition to the powers and authority expressly conferred upon them by statute or by this Certificate of Incorporation or the by-laws of the Corporation, the directors are hereby empowered to the fullest extent permitted by law to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation. B. The directors of the Corporation are to be elected by written ballot unless the by-laws provide otherwise. C. Except as otherwise provided in any Preferred Stock Designation, any action required or permitted to be taken by the stockholders of the Corporation must be effected at a duly called annual or special meeting of stockholders of the Corporation and may not be effected by any consent in writing by such stockholders. D. Special meetings of stockholders of the Corporation may be called only by the Chairman of the Board or the Chief Executive Officer or by the board of directors acting 3 pursuant to a resolution adopted by a majority of the Whole Board for purposes of this Certificate of Incorporation. The term "Whole Board" shall mean the total number of authorized directors whether or not there exist any vacancies in previously authorized directorships. SIXTH: A. The board of directors shall be comprised of no less than four (4) members and no more than five (5) members. The directors shall be divided into two classes, with the term of office of the first class to expire at the first annual meeting of stockholders following such classification ("Class 1 Directors") and the term of office of the second class to expire at the second annual meeting of stockholders following such classification ("Class 2 Directors"). Class 1 Directors shall be comprised of one (1) member, in the event that the Board consist of four (4) total members, and two (2) members in the event that the Board consists of five (5) total members. Class 2 Directors shall be comprised of three (3) members. At each annual meeting of stockholders following such initial classification, directors elected to succeed those directors whose terms expire shall be elected for a term of office to expire at the second succeeding annual meeting of stockholders after their election. B. Newly created directorships resulting from any increase in the authorized number of directors or any vacancies in the board of directors resulting from death, resignation, retirement, disqualification, removal from office or other cause shall, unless otherwise provided by law or by resolution of the board of directors, be filled only by a majority vote of the directors then in office, though less than a quorum and not by the stockholders, and directors so chosen shall hold office for a term expiring at the annual meeting of stockholders at which the term of office of the class to which they have been chosen expires. No decrease in the authorized number of directors shall shorten the term of any incumbent director. C. Advance notice of stockholder nominations for the election of directors and of business to be brought by stockholders before any meeting of the stockholders of the Corporation shall be given in the manner provided in the by-laws of the Corporation. D. Any directors, or the entire board of directors, may be removed from office at any time, but only for cause and only by the affirmative vote of the holders of at least two-thirds (2/3) of the voting power of all of the then-outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors voting together as a single class. SEVENTH: The board of directors is expressly empowered to adopt, amend or repeal by-laws of the Corporation. Any adoption, amendment or repeal of the by-laws of the Corporation by the board of directors shall require the approval of a majority of the Whole Board. The stockholders shall also have power to adopt, amend or repeal the by-laws of the Corporation; provided, however, that, in addition to any vote of the holders of any class or series of stock of the Corporation required by law or by this certificate of Incorporation, the affirmative vote of the holders of at least seventy-five percent (75%) of the voting power of all of the then-outstanding shares of the capital stock of the corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required to adopt, amend or repeal any provision of the by-laws of the Corporation. 4 EIGHTH: 1. The affirmative vote of the holders of shares (other than shares held by an Interested Shareholder (as hereinafter defined)) constituting two-thirds of the voting power of the Corporation, given in person or by proxy at a meeting called for such purpose, shall be necessary to approve: (1) any merger, consolidation or reorganization (as defined in the General Delaware Corporation law) of the Corporation or any Subsidiary (as hereinafter defined) (a) with any Interested Stockholder, (b) with any other corporation (whether or not itself an Interested Stockholder) which is, or after such merger, consolidation or reorganization would be, an affiliate (as hereinafter defined) of an Interested Stockholder or (c) in which an Interested Stockholder, has an interest (except proportionately as a stockholder of the Corporation); (2) any sale, lease, exchange, mortgage, pledge, transfer or any other disposition (in one transaction or in a series of transactions) to or with any Interested Stockholder or any Affiliate of any Interested Stockholder, or in which an Interested Stockholder has an interest (except proportionately as a stockholder of the Corporation) of all or substantially all of the assets of the Corporation or any Subsidiary; (3) any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or in a series of transactions) of all or substantially all of the assets of an Interested Stockholder, an Affiliate thereof, or an entity in which the Interested Stockholder has an interest, to the Corporation or any Subsidiary; (4) the issuance, sale, exchange, disposition or other transfer by the Corporation or any Subsidiary (in one transaction or in a series of transactions) of any securities of the Corporation or any Subsidiary to any Interested Stockholder or any Affiliate of any Interested Stockholder (except proportionately to the stockholders of the Corporation or such Subsidiary) in exchange for cash, securities or other property (or a combination thereof) having an aggregate Fair Market Value (as hereinafter defined) of five million dollars or more; (5) any reclassification of securities (including any reverse stock split) or recapitalization of the Corporation or any other transaction (whether or not with or into or otherwise involving an Interested Stockholder) which has the effect, directly or indirectly, of increasing the proportionate share of the outstanding shares of any class of equity or convertible securities of, or otherwise increasing the voting power over, the Corporation or any Subsidiary which is directly or indirectly owned by any Interested Stockholder or any Affiliate of any Interested Stockholder; (6) any spin-off, split-off or split-up of the Corporation in which the Interested Stockholder has an interest (other than proportionately as a stockholder); or (7) any agreement. contract, or other arrangement with an Interested Stockholder (or in which the interested Stockholder has an interest other than proportionately as a stockholder) providing for any of the transactions described in clauses (1) through (6) of this 5 Article Eighth, The approval required in this Article Eighth, Section 1, shall be required unless all of the conditions of Section 2 of this Article Eighth have been fulfilled. Such affirmative vote shall be required notwithstanding the fact that no vote may be required by law or that a lesser percentage may be specified by law or in any arrangement with any national securities exchange or otherwise. For purposes of this Section 1 "substantially all the assets" shall mean assets having a book value of more than (i) 10% of the book value of the assets of the entity in question, in the case of the Corporation or a Subsidiary and (ii) 90% of the book value of the assets of the entity in question in the case of any other entity. 2. Exceptions. The provisions of Section 1 of this Article Eighth requiring a two-thirds vote of holders of the Company's outstanding voting stock shall not be applicable to any particular Business Transaction (as hereinafter defined) and such Business Transaction shall require only the affirmative vote of the stockholders, if any, as is otherwise required by law, if the Business Transaction shall have been approved expressly by a majority of Continuing Directors (as hereinafter defined) of the Corporation. 3. Definitions. For the purposes of this Article Eighth: (1) A "Person" shall mean any individual, group, partnership, association; firm, corporation or other entity. (2) "Interested Stockholder" shall mean any Person (other than the Corporation, any Subsidiary (as defined below), any employee stock ownership or other employee benefit plan of the Corporation or any Subsidiary or any trustee of, or fiduciary with respect to, any such plan when acting in such capacity) who or which (a) is the Beneficial Owner, directly or indirectly, of more than ten percent (10%) of the voting power of the outstanding voting stock of the Corporation; (b) is an Affiliate of the Corporation and at any time within the two-year period immediately prior to the date in question was the Beneficial Owner, directly or indirectly, of more than ten percent (10%) of the voting power of the outstanding voting stock of the Corporation; or (c) is an Affiliate of the Corporation and at any time within the two-year period immediately prior to the date in question was the Beneficial Owner, directly or indirectly, of ten percent (10%) or more of the voting power of the then outstanding voting stock of the Corporation which was at any time within the two year period immediately prior to the date in question 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. The calculation of the percentage of beneficial ownership shall be made at the following three times, any of which will suffice for purposes of determining that a Beneficial Owner is an Interested Stockholder: (i) at the time the definitive agreement providing for the Business Transaction (including any amendment thereof) was entered into, (ii) at the time a resolution approving the Business Transaction was adopted by the Board of Directors of the Corporation, or (iii) as of the record date of the Corporation for the determination of stockholders entitled to notice of and to vote on, 6 or to consent to, the Business Transaction. (3) A Person shall be a "Beneficial Owner" of any voting stock of the Corporation (a) which such Person or any of its Affiliates or Associates (as hereinafter defined) beneficially owns, directly or indirectly; (b) which such Person or any of its Affiliates or Associates has (1) 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 other options, or otherwise, or (2) the right to vote pursuant to any agreement, arrangement or understanding; or (c) which are beneficially owned, directly or indirectly, by any Person with which such Person or any of its Affiliates has any agreement, arrangement or understanding for the purpose of holding, voting or disposing of any shares of such stock. (4) For the purpose of determining whether a Person is an Interested Stockholder pursuant to Section 3(2), the number of shares of voting stock of the Corporation deemed to be outstanding shall include shares deemed owned through application of Section 3(2) but shall not include any other shares of voting stock of the Corporation which may be issuable pursuant to any agreement, arrangement or understanding, or upon exercise of conversion rights, warrants or options, or otherwise. (5) "Affiliates" or "Associates" shall have the respective meanings ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect from time to time. The term "Associate," used to indicate a relationship with a specified person, shall also mean any person who is a director or officer of such specified person or any of its parents or subsidiaries (other than the Corporation or any Subsidiary). (6) "Subsidiary" shall mean any corporation of which at least a majority of any class or equity security is owned, directly or indirectly, by the Corporation; provided, however, that for the purposes of the definition of Interested Stockholder set forth in Section 3(2), the term "Subsidiary" shall mean only a corporation of which at least a majority of each class of equity securities is owned, directly or indirectly, by the Corporation. (7) "Fair Market Value" shall mean: (a) in the case of stock, the highest closing sale price during the thirty (30) day period immediately preceding the date in question of a share of such stock on the National Association of Securities Dealers Automated Quotation System ("NASDAQ") or the NASDAQ National Market System, or, if such stock is not quoted on NASDAQ, on the New York Stock Exchange, or, if such stock is not listed on such Exchange, on the principal United States securities exchange registered under the Securities Exchange Act or 1934, as amended, on which such stock is listed, or if such stock is not listed on any such exchange, the highest closing bid quotation with respect to a share of such stock during the thirty (30) day period immediately preceding the date in question on the NASDAQ, or any system then in use, or if no such quotations are available, the Fair Market Value of such property on the date in question as determined by a majority of Continuing Directors of in good faith. (8) In the event of any Business Transaction in which the Corporation 7 survives, the phrase "consideration other than cash to be received" as used in subsections (b)(i) and (ii) of Section 2 shall include the Common Shares and/or the shares of any other class of outstanding voting stock retained by the holder of such shares. (9) "Business Transaction" shall mean any transaction which is referred to in Section 1. (10) "Voting Power" shall be calculated by multiplying the number of voting shares or other voting securities of the Corporation or the Subsidiary, as the case may be, times the number of votes (or fractional votes) per such share or security to which the holders of such shares or securities are entitled. (11) "Continuing Director" shall mean any member of the board of directors of the Corporation who (i) is not an Interested Stockholder or an officer of the Corporation and who is not a nominee, an Affiliate or Associate of any such Interested Stockholder or officer or (ii) was prior to his election, recommended for election by a majority of Continuing Directors then on the Board. 4. Determinations by Directors. A majority of Continuing Directors of the Corporation shall have the power and duty to determine for the purpose of this Article, on the basis of information known to them after reasonable inquiry, (a) whether a person is an Interested Stockholder; (b) the number of shares of voting stock of the Corporation of which any Person is the Beneficial Owner; (c) whether a Person is an Affiliate or an Associate of another; (d) whether a Person has an agreement, arrangement or understanding with another as to matters referred to herein; (e) whether the assets in a Business Transaction are "substantially all the assets" of an entity; (f) whether any Business Transaction is one in which an Interested Stockholder has an Interest; (g) whether the consideration to be received for the issuance or transfer of securities by the Corporation or any Subsidiary in any Business Transaction has an aggregate Fair Market Value of five million dollars or more; and (h) such other matters with respect to which determination is required under this Article. 5. Fiduciary Duties. Nothing contained in this Article shall be construed to relieve any Interested Stockholder from any fiduciary obligation imposed by law. 6. Amendments. To amend or repeal or adopt any provisions inconsistent with Sections 1 through 6 of this Article Eighth, there shall be required the affirmative vote or (i) the holders of not less than two-thirds of the voting power of the Corporation and of the holders of two-thirds of the Common Shares at the time outstanding voting together as a separate class or (ii) the stockholders of the Corporation as required by law, if the amendment is approved more than two-thirds of the directors of the Corporation. 7. Section 203. This Article Eighth does not constitute an election not to be governed by Section 203 of the Delaware General Corporation Law. 8 NINTH: 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 an improper personal benefit. If the Delaware General Corporation Law is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as so amended. TENTH: Section 1. Right to Indemnification. (a) Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a "proceeding"), by reason of the fact that he or she, or a person of whom he or she is the legal representative, is or was a director or officer of the Corporation, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified by the Corporation to the fullest extent authorized by the Delaware General Corporation Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators and (b) the Corporation shall indemnify in such manner any person who was or is made a party or is threatened to be made a party to a proceeding by reason of the fact that he, she or a person of whom he or she is the legal representative, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or a partnership, joint venture, trust or other enterprise; provided, however, that except as provided in Section 2 of this Article, the Corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation. In the event a director or officer of the Corporation shall serve as a director, officer, employee or agent of any corporation, partnership, joint venture, trust or other enterprise in which the Corporation maintains an investment it shall be conclusively presumed for purposes of the indemnification provided for in subsection (b) above that such service has been undertaken at the request of the Corporation. The foregoing presumption shall apply regardless of whether such director or officer is serving such entity at the request of a third party or that his or her service with such entity was commenced prior to the effectiveness of this Article of the Certificate of Incorporation or prior to his or her becoming an officer or director of the Corporation. The right to indemnification conferred in Subsection (a) above shall be a contract right based upon an offer from the Corporation which shall be deemed to be accepted by such 9 person's service or continued service with the Corporation for any period after the adoption of this Article of the Certificate of Incorporation and shall include the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that if the Delaware General Corporation Law requires, the payment of such expenses incurred by a director or officer in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this section or otherwise. The corporation may, by action of its Board of Directors, provide indemnification to employees or agents of the Corporation with the same scope and effect as the foregoing indemnification of directors and officers. Section 2. Right of Claimant to Bring Suit. If a claim under section 1(a) of this Article is not paid in full by the Corporation within thirty days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful, in whole or in part, the claimant shall be entitled to be paid also the expense (including attorneys' fees) of prosecuting such claim. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to the Corporation) that the claimant has not met the standards of conduct which make it permissible under the Delaware General Corporation Law for the Corporation to indemnity the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the Delaware General Corporation Law, nor an actual determination by the Corporation (including its Board of Directors, independent legal counsel, or its stockholders) that the claimant has not met such applicable standard or conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct. Section 3. Non-exclusivity of Rights. The right to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Section shall not be exclusive of any other right which any person may have or hereafter acquire under any statue, provision of the certificate of incorporation, by-law, agreement, vote of stockholders or disinterested directors or otherwise. Section 4. Insurance. The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any such expense, liability or loans, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the Delaware General Corporation Law. 10 Any repeal or modification of Articles NINTH or 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. ELEVENTH: The Corporation reserves the right to amend or repeal any provision contained in this Certificate of Incorporation in the manner prescribed by the laws of the State of Delaware and all rights conferred upon stockholders are granted subject to this reservation; provided, however, that, notwithstanding any other provision of this Certificate of Incorporation or any provision of law that might otherwise permit a lesser vote or no vote, but in addition to any vote of the holders of any class or series of the stock of this Corporation required by law or by this Certificate of Incorporation, the affirmative vote of the holders of at least seventy-five percent (75%) or the voting power of all of the then-outstanding shares of the capital stock of the Corporation entitled to vote generally in the election of Directors, voting together as a single class, shall be required to amend or repeal this Article ELEVENTH, Sections C or D of Article FIFTH, Article SIXTH, Article SEVENTH, Article EIGHTH, Article NINTH or Article TENTH. IN WITNESS WHEREOF, the undersigned Corporation hereby executes this document and affirms that the facts set forth herein are true under the penalties of perjury this 24th day of February, 1997. I.C.H. CORPORATION By: /s/ James R. Arabia ---------------------- Name: James R. Arabia Title: President 11 EX-99.6 4 BY-LAWS OF ICM CORPORATION AMENDED AND RESTATED BY-LAWS OF I.C.H. CORPORATION ARTICLE I OFFICES SECTION 1. REGISTERED OFFICE. - The registered office of the corporation shall be located in the City of Dover, County of Kent, State of Delaware 19901. SECTION 2. OTHER OFFICES. - The corporation may have other offices, either in or outside of the State of Delaware, as shall be designated from time to time by the Board of Directors. ARTICLE II SHAREHOLDERS SECTION 1. ANNUAL MEETINGS. - Annual meetings of stockholders for the election of directors and for such other businesses as may be stated in the notice of the meeting, shall be held at such place, either within or without the State of Delaware, and at such time and date as the Board of Directors, by resolution, shall determine and as set forth in the notice of meeting. In the event the Board of Directors fails to so determine the time, date and place of meeting, the annual meeting of stockholders shall determine the time, date and place of meeting. If the date of the annual meeting shall fall upon a legal holiday, the meeting shall be held on the next succeeding business day. At each annual meeting, the stockholders entitled to vote shall elect a Board of Directors and they may transact such other corporate business as shall be stated in the notice of the meeting. SECTION 2. OTHER MEETINGS. - Meetings of stockholders for any purpose other than the election of directors may be held at such time and place, in accordance with the Certificate of Incorporation, within or without the State of Delaware, as shall be stated in the notice of the meeting. SECTION 3. VOTING. - Each stockholder entitled to vote in accordance with the terms of the Certificate of Incorporation and in accordance with the provisions of these By-Laws shall be entitled to one vote, in person or by proxy, for each share of stock entitled to vote held by such stockholder, but no proxy shall be voted after three years from its date unless such proxy provides for a longer period. Upon the demand of any stockholder, the vote upon any question before the meeting, shall be by ballot. All questions shall be decided by majority vote except as otherwise provided by the Certificate of Incorporation or the laws of the State of Delaware. A complete list of the stockholders entitled to vote at the ensuing election, arranged in alphabetical order, with the address of each, and the number of shares held by each, 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, 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 thereof, and may be inspected by any stockholder who is present. SECTION 4. QUORUM. - Except as otherwise required by law, by the Certificate of Incorporation or by these By-Laws, the presence, in person or by proxy, of stockholders holding a majority of the stock of the corporation entitled to vote shall constitute a quorum at all meetings of the stockholders. In case a quorum shall not be present at any meeting, a majority in interest of the stockholders entitled to vote thereat, present in person or by proxy, shall have power to adjourn the meeting, until the requisite amount of stock entitled to vote shall be present. At any such adjourned meeting at which the requisite amount of stock entitled to vote shall be represented, any business may be transacted which might have been transacted at the meeting as originally noticed; but only those stockholders entitled to vote at the meeting as originally noticed shall be entitled to vote at any adjournment or adjournments thereof. If the adjournment is for more than thirty (30) 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 in the meeting. SECTION 5. SPECIAL MEETING. - Special meetings of the stockholders for any purpose or purposes may be called in accordance with the Certificate of Incorporation. SECTION 6. NOTICE OF MEETINGS. - Written notice, stating the place, date and time of the meeting, and the general nature of the business to be considered, shall be given to each stockholder entitled to vote thereat at his address as it appears on the records of the corporation, not less than ten nor more than sixty days before the date of the meeting. No business other than that stated in the notice shall be transacted at any meeting without the unanimous written consent of all of the stockholders entitled to vote thereat. ARTICLE III DIRECTORS SECTION 1. NUMBER AND TERM. - The number of directors shall be as stated in the Certificate of Incorporation. The directors shall be elected at the annual meeting of the stockholders and each director shall be elected to serve until his successor shall be elected and shall qualify. A director need not be a stockholder. 2 SECTION 2. RESIGNATIONS. - Any director, member of a committee or other officer may resign at any time. Such resignation shall be made in writing, and shall take effect at the time specified therein, and if no time is specified, at the time of its receipt by the President or Secretary. The acceptance of a resignation shall not be necessary to make it effective. SECTION 3. VACANCIES. - If the office of any director, member of a committee or other officer becomes vacant, such vacancy shall be filled in accordance with the Certificate of Incorporation. SECTION 4. REMOVAL. - Any director or directors may be removed for cause in accordance with the Certificate of Incorporation. SECTION 5. INCREASE OF NUMBER. - The number of directors may be increased only by amendment of the Certificate of Incorporation. SECTION 6. POWERS. - The Board of Directors shall exercise all of the powers of the corporation except such as are by law, or by the Certificate of Incorporation of the corporation of by these By-Laws conferred upon or reserved to the stockholders. SECTION 7. COMMITTEES. - The Board of Directors may, by resolution or resolutions passed by a majority of the entire Board, designate one ore more committees, each committee to consist of such number of directors as the Board may designate. Any such committee, to the extent provided in the resolution of the Board of Directors, or in these By-Laws, shall have and may exercise all the powers and authority of the Board 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 of 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, these By-Laws, or the Certificate of Incorporation expressly provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock. SECTION 8. MEETINGS. - 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. Meetings may be held at any place, within or without the State of Delaware, which has been designated in any notice of the meeting, or, if not stated in said notice or, if there is no notice given, at the place designated by resolution of the Board of Directors. Meetings may be called by the Chairman of the Board, if any, by the President, if any, or by a majority of directors. No notice shall be required for regular meetings for which the time and place have been 3 fixed by the Board of Directors. Special meetings shall be held upon at least four days' notice by mail or upon at least forty-eight hours' notice delivered personally or by telephone or telegraph. Notice of a meeting need not be given to any director who signs a waiver of notice or a consent to holding the meeting or an approval of the minutes thereof, whether before or after the meeting, or who attends the meeting without protesting, prior thereto or at its commencement, the lack of notice to such director. A notice or waiver of notice need not specify the purpose of any regular or special meeting of the Board of Directors. All such waivers, consents and approvals shall be filed with the corporate records or made a part of the minutes of the meeting. Unless otherwise restricted by the Certificate of Incorporation or these By-Laws, members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. SECTION 9. QUORUM. - A majority of the directors shall constitute quorum for the transaction of business. If at any meeting of the Board there shall be less than a quorum present, a majority of those present may adjourn the meeting from time to time until a quorum is obtained, and no further notice thereof need be given other than by announcement at the meeting which shall be so adjourned. SECTION 10. COMPENSATION. - The Board of Directors, by the affirmative vote of a majority of the directors then in office, and irrespective of any personal interest of any its members, shall have authority to establish reasonable compensation of all directors for services to the Corporation as directors or otherwise. Nothing herein contained shall be construed to preclude any director from serving the corporation in any other capacity as an officer, agent or otherwise, and receiving compensation therefor. SECTION 11. ACTION WITHOUT MEETING. - Any action required or permitted to be taken by the Board of Directors or any committee thereof may be taken without a meeting if all members of the Board of Directors or the committee, as the case may be, consent in writing to the adoption of a resolution authorizing the action, and the resolution and written consents thereto are filed with the minutes of the proceedings of the Board of Directors or committee. ARTICLE IV OFFICERS SECTION 1. OFFICERS. - The officers of the corporation shall be a President, a Treasurer, and a Secretary, all of whom shall be elected annually by the Board of Directors and who shall hold office until their successors are elected and qualified. In addition, the Board of Directors may elect a Chairman, one or more Vice-Presidents and such Assistant Secretaries and Assistant Treasurers as they may deem proper. None of the officers of the corporation need be directors. The officers shall be elected at the first meeting of the Board of Directors after each 4 annual meeting. More than two offices may be held by the same person. The salaries of all officers and agents of the corporation shall be fixed by the Board of Directors. Any officer elected or appointed by the Board of Directors may be removed at any time by the affirmative vote of a majority of the Board of Directors. Any vacancies occurring in any office of the corporation shall be filled by the Board of Directors. SECTION 2. OTHER OFFICERS AND AGENTS. - The Board of Directors may appoint such other officers and agents as it may deem advisable, 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 of Directors. SECTION 3. THE CHAIRMAN OF THE BOARD. - The Chairman of the Board of Directors, if one be elected, shall preside at all meetings of the Board of Directors and shall perform such other duties as may be assigned by the Board of Directors. SECTION 4. PRESIDENT. - The President shall be the chief executive officer of the corporation and shall have the general powers and duties of supervision and management usually vested in the office of President of a corporation. He shall preside at all meetings of the stockholders if present thereat, and shall have general supervision, direction and control of the business of the corporation. SECTION 5. VICE-PRESIDENT. - The Vice-President, if there are more than one, the senior Vice President, as determined by the Board of Directors, in the absence or disability of the President, shall exercise the powers and perform the duties of the President and each Vice-President shall exercise such other powers and perform such other duties as shall be prescribed by the directors. SECTION 6. TREASURER. - The Treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate account of receipts and disbursements in books belonging to the corporation. He/she shall deposit all moneys and other valuables in the name and to the credit of the corporation in such depositaries as may be designated by the Board of Directors. The Treasurer shall disburse the funds of the corporation as may be ordered by the Board of Directors, or the President and Board of Directors at the regular meetings of the Board of Directors, or whenever they may request it, an account of all his/her transactions as Treasurer and of the financial condition of the corporation. If required by the Board of Directors, he/she shall give the corporation a bond for the faithful discharge of his/her duties in such amount and with such surety as the Board shall prescribe. SECTION 7. SECRETARY. - The Secretary shall give, or cause to be given, notice of all meetings of shareholders and directors, and all other notices required by the law or by these By-laws, and in case of his/her absence or refusal or neglect so to do, any such notice may be 5 given by any person thereunto directed by the President, or by the directors, or shareholders, upon whose requisition the meeting is called as provided in these By-laws. He/she shall record all the proceedings of the meetings of the corporation and of the directors in a book to be kept for that purpose, and shall perform such other duties as may be assigned to him by the directors or the President. He/she shall have the custody of the seal of the corporation and shall affix the same to all instruments requiring it, when authorized by the directors or the President, and attest the same. SECTION 8. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. - Assistant Secretaries and Assistant Treasurers, if any, shall be elected and shall have such powers and shall perform such duties as shall be assigned to them, respectively, by the directors. ARTICLE V CAPITAL STOCK SECTION 1. CERTIFICATES OF STOCK. - A certificate of stock, signed by the Chairman or Vice-Chairman of the Board of Directors, if they be elected, President or Vice-President, and the Treasurer or an Assistant Treasurer, or Secretary or Assistant Secretary, shall be issued to each stockholder certifying the number of shares owned by him in the corporation. When such certificate are countersigned (1) by a transfer agent other than the corporation or its employee, or, (2) by a registrar other than the corporation or its employee, the signatures of such officers may be facsimiles. SECTION 2. TRANSFER OF SHARES. - The shares of stock of the corporation shall be transferable only upon its books by the holders thereof in person or by their duly authorized attorneys or legal representatives, and upon such transfer the old certificate shall be surrendered to the corporation by the delivery thereof to the person in charge of the stock and transfer books and ledgers, or to such other person as the directors may designate, by whom they shall be canceled, and new certificates shall thereupon be issued. A record shall be made of each transfer and whenever a transfer shall be made for collateral security, and not absolutely, it shall be so expressed in the entry of the transfer. SECTION 3. LOST OR DESTROYED CERTIFICATES. - A new certificate of stock may be issued in the place of any certificate theretofore issued by the corporation, alleged to have been lost or destroyed, and the directors may, in their discretion, require the owner of the lost or destroyed certificate, or his legal representatives, to give the corporation a bond, in such sum as they may direct, not exceeding double the value of the stock, to indemnify the corporation against any claim that may be made against it on account of the alleged loss of any such certificate, or the issuance of any such new certificate. SECTION 4. STOCKHOLDERS RECORD DATE. - In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or 6 entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty days prior to any other action. A determination of stockholders or 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 adjournment meeting. ARTICLE VI MISCELLANEOUS SECTION 1. DIVIDENDS. - Subject to the provisions of the Certificate of Incorporation, the Board of Directors may, out of funds legally available therefor at any regular or special meeting, declare dividends upon the capital stock of the corporation as and when they deem expedient. Before declaring any dividend there may be set apart out of any funds of the corporation available for dividends, such sum or sums as the directors from time to time in their discretion deem proper for working capital or as a reserve fund to meet contingencies or for equalizing dividends or as a reserve fund to meet contingencies or for equalizing dividends or for such other purposes as the directors shall deem conducive to the interests of the corporation. SECTION 2. SEAL. - The directors shall provide a suitable corporate seal which shall be in the charge of the Secretary and shall be used as authorized by the By-Laws. SECTION 3. FISCAL YEAR. - The fiscal year of the corporation shall be determined by resolution duly adopted by the Board of Directors. SECTION 4. CHECKS, NOTES, ETC. - Checks, notes, drafts, bills of exchange and orders for the payment of money, notes or other evidences of indebtedness issued in the name of the corporation shall be signed or endorsed in such manner as shall be determined from time to time by resolution of the Board of Directors. The funds of the corporation shall be deposited in such bank or trust company, and checks drawn against such funds shall be signed or endorsed in such manner as determined by the Board of Directors. SECTION 5. NOTICE AND WAIVER OF NOTICE. - Whenever any notice is required by these By-laws to be given, personal notice is not meant unless expressly so stated, and any notice so required shall be deemed to be sufficient if given by depositing the same in the United States mail, postage, prepaid, addressed to the person entitled thereto at his/her address as it appears on the records of the corporation, and such notice shall be deemed to have been given on the day of such mailing. Shareholders not entitled to vote shall not be entitled to receive notice of any meetings except as otherwise provided by Statute. Whenever any notice whatsoever is required to be given under the provisions of any law, or under the provisions of the incorporation document of the corporation or these By-laws, a 7 waiver thereof in writing signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE VII AMENDMENTS These By-Laws may be altered or repealed and By-Laws may be made at any annual meeting of the stockholders or at any special meeting thereof, in accordance with the Certificate of Incorporation, if notice of the proposed alteration or repeal of By-Law or By-Laws to be made be contained in the notice of such special meeting, or at any regular meeting of the Board of Directors, or at any special meeting of the Board of Directors, if notice of the proposed alteration or repeal of By-Law or By-Laws to be made, be contained in the notice of such special meeting. -----END PRIVACY-ENHANCED MESSAGE-----