-----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, PW2BL7ZJ1vIKotlY51rQmQcbckaNd8RDm649L8DiNWrkdArzun29gMNmEysJthOi QroQNNCNGL7Ey134GY6Dug== 0001341004-06-000625.txt : 20060307 0001341004-06-000625.hdr.sgml : 20060307 20060306183738 ACCESSION NUMBER: 0001341004-06-000625 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20060306 ITEM INFORMATION: Completion of Acquisition or Disposition of Assets ITEM INFORMATION: Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers ITEM INFORMATION: Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20060307 DATE AS OF CHANGE: 20060306 FILER: COMPANY DATA: COMPANY CONFORMED NAME: REFAC CENTRAL INDEX KEY: 0000082788 STANDARD INDUSTRIAL CLASSIFICATION: PATENT OWNERS & LESSORS [6794] IRS NUMBER: 131681234 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-12776 FILM NUMBER: 06668365 BUSINESS ADDRESS: STREET 1: ONE BRIDGE PLAZA STREET 2: SUITE 550 CITY: FORT LEE STATE: NJ ZIP: 07024-7102 BUSINESS PHONE: 2015850600 MAIL ADDRESS: STREET 1: ONE BRIDGE PLAZA STREET 2: SUITE 550 CITY: FORT LEE STATE: NJ ZIP: 07024-7102 FORMER COMPANY: FORMER CONFORMED NAME: REFAC TECHNOLOGY DEVELOPMENT CORP DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: RESOURCES & FACILITIES CORP DATE OF NAME CHANGE: 19740509 FORMER COMPANY: FORMER CONFORMED NAME: REFAC INC DATE OF NAME CHANGE: 19720628 8-K 1 ny1095536.txt FORM 8-K 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): March 6, 2006 Refac Optical Group (Exact name of registrant as specified in its charter) DELAWARE 001-12776 13-1681234 - ---------------------------------- ---------------------- --------------------- (State or other jurisdiction of (Commission I.R.S. Employer incorporation or organization) File Number) Identification No.) ONE BRIDGE PLAZA, SUITE 550, FORT LEE, NEW JERSEY 07024 - ------------------------------------------------------------------------------- (Address of principal executive offices) (Zip Code) (201) 585-0600 ------------------------------------------------------------- (Registrant's telephone number, including area code) Refac ---------------------------------------------------------------- (Former name, former address and former fiscal year, if changed since last report) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below): |X| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |_| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |_| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) Item 2.01 Completion of Acquisition or Disposition of Assets. On March 6, 2006, Refac Optical Group (formerly known as Refac) (the "Company") acquired OptiCare Health Systems, Inc., a Delaware corporation ("OptiCare"), pursuant to the Agreement and Plan of Merger (the "OptiCare Merger Agreement"), dated as of August 22, 2005, as amended, by and among the Company, OptiCare and OptiCare Merger Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of the Company ("OptiCare Merger Sub"). In the merger, OptiCare Merger Sub merged with and into OptiCare, with OptiCare surviving. At the effective time of the OptiCare merger, each share of OptiCare common stock held by Palisade Concentrated Equity Partnership, L.P., a Delaware limited partnership ("Palisade"), and each share of OptiCare common stock issued upon conversion of OptiCare preferred stock was converted into the right to receive approximately 0.0403 shares of Company common stock. Each other share of OptiCare common stock was converted into the right to receive 0.0472 shares of Company common stock. On the same date, the Company acquired U.S. Vision, Inc., a Delaware corporation ("USV"), pursuant to the Agreement and Plan of Merger, dated as of August 22, 2005, as amended, by and among the Company, USV, and USV Merger Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of the Company ("USV Merger Sub"). In the merger, USV Merger Sub merged with and into USV, with USV surviving. At the effective time of the USV merger, each share of USV common stock was converted into the right to receive 0.4141 shares of the Company common stock. As a result of the mergers, OptiCare and USV are now wholly owned subsidiaries of the Company. Before the mergers, Palisade owned approximately 91% of the Company's outstanding common stock, 88% of USV's outstanding common stock and approximately 84% of OptiCare's outstanding common stock on an as converted basis. Following the mergers, Palisade owns approximately 88% of the Company's outstanding common stock. The information regarding interests of certain directors, officers and affiliates of the Company, OptiCare and USV in the mergers included in the section entitled "Interests of Certain Persons in the Mergers" beginning on page 50 of the Company's Amendment No. 1 to the Registration Statement on Form S-4 filed with the Securities and Exchange Commission on February 14, 2006 (the "Form S-4") is hereby incorporated by reference. On March 6, 2006, the Company issued a press release announcing the closing of the mergers. The press release is furnished herewith as Exhibit 99.1. Item 5.02 Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers. Election of Directors At the annual meeting of the Company's stockholders held on March 6, 2006, Melvin Meskin, Jeffrey D. Serkes, Dennison T. Veru, Clark A. Johnson, Mark N. Kaplan and Jeffrey A. Cole were re-elected to the Company's board of directors. As described in Item 5.03 below, the Company's stockholders also voted to amend the Company's certificate of incorporation to eliminate the classified board of directors. The Company's annual meeting of directors was also held on March 6, 2006. At this meeting, the Company's board of directors voted to increase its size from 9 directors to 12 directors and to appoint the following persons to fill the resulting vacancies. Each of such persons was nominated to the board by Palisade. DEAN J. YIMOYINES, M.D.: Dr. Yimoyines, age 58, served as Chairman of the Board of OptiCare until March 6, 2006. Dr. Yimoyines was the Chief Executive Officer of OptiCare from August 1999 to January 2005 and was appointed as the Interim Chief Executive Officer on December 5, 2005. Dr. Yimoyines also served as President of OptiCare from August 1999 to June 2002. Dr. Yimoyines is a founder of OptiCare Eye Health Centers, Inc. and has served as the Chairman, President and Chief Executive Officer of OptiCare Eye Health Centers, Inc. since 1985. Dr. Yimoyines graduated with distinction from the George Washington School of Medicine. He is a graduate of the OPM (Owner/President Management) program at Harvard Business School and is a Fellow of the American Academy of Ophthalmology. DAVID C. STONE: Mr. Stone, age 58, is a member of the Bar of the State of Michigan and has been a partner in the law firm of Bodman LLP since 2004. For the previous sixteen years, he was a principal in the law firm of Stone, Biber & O'Toole. Mr. Stone concentrates his practice in corporate and business law, including corporate governance, mergers and acquisitions, finance and estate planning. Until March 6, 2006, he was a director of USV. JOSEPH W. MARINO: Mr. Marino, age 66, is a private investor. He was the President and Chief Executive Officer of The Marco Group, Inc. an operator of post-secondary vocational schools from 1984 until November 1, 2004 and was Senior Vice President from November 1, 2004 until his retirement on July 1, 2005. He is a director of JM Financial Management Corp and, until March 6, 2006, was a director of USV. Dr. Yimoyines, together with his wife Linda Yimoyines, beneficially owned 6,690,391 shares of OptiCare common stock and options to acquire 2,011,450 shares of OptiCare common stock immediately prior to the OptiCare merger, which were converted into 273,452 shares of Refac common stock and options to acquire 94,940 shares of Refac common stock at the effective time of the OptiCare merger. Messrs. Stone and Marino each owned an option to acquire 20,000 shares of USV common stock immediately prior to the USV merger, each of which were converted into an option to acquire 8,282 shares of Refac common stock at the effective time of the USV merger. Information regarding certain relationships and related transactions between OptiCare, Palisade and their affiliates, on the one hand, and Dr. Yimoyines and his wife Linda Yimoyines, on the other hand, included in Item 13 of the amended Annual Report on Form 10-K filed by OptiCare on May 2, 2005 is incorporated herein by reference. Mr. Marino and members of his immediate family maintain brokerage accounts with Palisade. Palisade provides investment management services to Mr. Stone and members of his family, as well as to a charitable trust of which he is the trustee. Officers At the Company's annual meeting of directors, J. David Pierson was appointed as the Company's Chief Executive Officer. Mr. Pierson had previously served as the Company's President and Chief Operating Officer since June 2005. From 1996 to 2001, Mr. Pierson served as President of Licensed Brands for Cole National Corporation, a leading optical retailer. Through more than thirty years in retailing, he has managed operations, merchandising and strategic planning and implementation in a variety of positions with Sears, Target Stores and Federated Department Stores. Most recently, from March 2001 to April 2004, he served as the Chairman, President and Chief Executive Officer of CPI Corporation (NYSE: CPY), which provides portrait photography services in the United States, Puerto Rico and Canada through Sears Portrait Studios. Since leaving CPI Corporation, he has served as a consultant to several companies including some in the retail optical business. Additionally, Robert L. Tuchman, the Company's former Chief Executive Officer, will serve as Senior Vice President, General Counsel and Corporate Secretary. Mr. Tuchman, age 63, has been a director of Refac since 1991. He was Refac's President, Chief Executive Officer and General Counsel from 1997 to March 6, 2006. He also served as Refac's Chairman from 1997 until March 26, 2003, when Melvin Meskin was elected as the non-executive Chairman of the Board. Mr. Tuchman served as its President, Chief Operating Officer and General Counsel from 1991 to 1997. The summaries of the Company's employment agreements with Messrs. Pierson and Tuchman on pages 89 through 91 of the Form S-4 are hereby incorporated by reference. In addition, pursuant to his employment agreement, Mr. Tuchman may enter into separate arrangements for his own account with Palisade and/or any of its affiliated companies that are engaged in private equity or investment management pursuant to which he may become a member, partner, officer, director or stockholder of such entity or may provide consulting or professional services thereto provided that such activities do not materially interfere with the regular performance of his duties and responsibilities under such employment agreement. In addition, Mr. Tuchman will have an interest in the general partner of a private equity partnership recently formed by Palisade Capital Management, L.L.C., an affiliate of Palisade. Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. The proxy statement included in the Form S-4 included proposals to amend the Company's restated certificate of incorporation to: (i) change the Company's name to Refac Optical Group; (ii) increase the Company's shares of authorized common stock from 20,000,000 shares to 25,000,000 and (iii) eliminate the classified board of directors. Following approval of these proposals by the Company's stockholders at the annual meeting of stockholders, on March 6, 2006, the Company filed with the Delaware Secretary of State a Restated Certificate of Incorporation (the "Restated Charter"). Effective March 6, 2006, the Company's board of directors amended and restated the Company's by-laws (the "Amended By-Laws") to eliminate the provisions regarding the classified board of directors and to add a provision stating that each director shall generally hold office until the next annual meeting of the stockholders and until his or her successor shall have been duly elected and qualified, or until his or her death, or until he or she shall have resigned, or have been removed. The Company's by-laws previously provided that directors could only be removed with cause. The Amended By-Laws provide that directors may also be removed without cause. Additionally, the Company's by-laws previously stated that all matters other than the election of directors shall be decided by a vote of the holders of at least 55% of the Company's shares, unless a different vote is required under applicable law or the Company's charter or by-laws. The Amended By-Laws provide that a vote of 55% is required, unless a greater vote is required under applicable law or the Company's charter or by-laws. The form of Restated Charter was included as Exhibit 3.1 to the Form S-4. A copy of the Amended Bylaws are filed herewith as Exhibit 3.1. Item 9.01 Financial Statements and Exhibits. (d) Exhibits: See attached exhibit index. 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. REFAC Dated: March 6, 2006 By:/s/Raymond A. Cardonne, Jr. --------------------------- Name: Raymond A. Cardonne, Jr. Title: Senior Vice President and Chief Financial Officer EXHIBIT INDEX Exhibit No. Description - ----------- ----------- 3.1 Amended & Restated By-Laws of Refac Optical Group* 13.1 Item 13 to Amendment No. 1 to Annual Report on Form 10-K filed by OptiCare Health Systems, Inc. with the Securities and Exchange Commission on May 2, 2005** 19.1 Amendment No. 1 to Registration Statement filed by Refac with the Securities and Exchange Commission on February 14, 2006 (Sections entitled "The Merger-Interests of Certain Persons in the Merger", "The Refac Annual Meeting of Stockholders-Employment Agreements", "The Refac Annual Meeting of Stockholders-Consulting Agreement" and "The Refac Annual Meeting of Stockholders-Certain Relationships and Related Transactions" only)** 99.1 Press Release, dated March 6, 2006* * Included herewith ** Incorporated by reference EX-3 2 nyc551626.txt EXHIBIT 3.1 - AMENDED & RESTATED BYLAWS Exhibit 3.1 AMENDED AND RESTATED BY-LAWS OF REFAC OPTICAL GROUP ARTICLE I OFFICES ------- Section 1.1. Registered Office. The registered office of the Corporation in the State of Delaware shall be located at the principal place of business in such state of the corporation or individual acting as the Corporation's registered agent in Delaware. Section 1.2. Other Offices. In addition to its registered office in the State of Delaware, the Corporation may have an office or offices in such other places as the Board of Directors may from time to time designate or the business of the Corporation may require. ARTICLE II MEETING OF STOCKHOLDERS ----------------------- Section 2.1. Time and Place. All meetings of the stockholders of the Corporation shall be held at such time and place, either within or without the State of Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2.2. Annual Meeting. The annual meeting of stockholders of the Corporation shall be held at such date, time and place, either within or without the State of Delaware, as shall be determined by the Board of Directors and stated in the notice of meeting. Section 2.3. Special Meetings of Stockholders. Special meetings of stockholders for any purpose or purposes if not otherwise prescribed by statute or by the Certificate of Incorporation, may be called by the Board of Directors, the Chief Executive Officer, or the Secretary and shall be called by the Chief Executive Officer or Secretary at the request of stockholders owning a majority of the shares of capital stock of the Corporation issued and outstanding and entitled to vote at a meeting of stockholders. Such request shall state the purpose or purposes of the proposed meeting. The time of any such special meeting shall be fixed by the officer calling the meeting and shall be stated in the notice of such meeting, which notice shall specify the purpose or purposes thereof. Business transacted at any special meeting shall be confined to the purposes stated in the notice of meeting and matters germane thereto. Section 2.4. Notice of Meetings. Notice of the time and place of every annual or special meeting of the stockholders shall be given not less than ten nor more than sixty days before the date of the meeting to each stockholder entitled to vote at such meeting, in the manner prescribed by Section 6.1 of these By-Laws, except that where the matter to be acted upon is a merger or consolidation of the Corporation, or a sale, lease or exchange of all or substantially all of its assets, such notice shall be given not less than twenty nor more than sixty days prior to such meeting. Section 2.5. Quorum and Adjournment of Meetings. The holders of at least 55% of the shares of capital stock issued and outstanding and entitled to vote thereat, present in person, or represented by proxy, shall be requisite and shall constitute a quorum at all meetings of the stockholders for the transaction of business, except as otherwise provided by the Certificate of Incorporation. If the holders of the requisite number of shares shall not be present in person or represented by proxy at any meeting of the stockholders at which action is to be taken by the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time without notice other than announcement at the meeting, until holders of the requisite number of shares of stock entitled to vote shall be present or represented by proxy. At such adjourned meeting at which such holders of the requisite number of shares of capital stock shall be present or represented by proxy, any business may be transacted which might have been transacted at the meeting as originally called. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of adjourned meeting shall be given to each stockholder of record entitled to vote thereat. Section 2.6. Vote Required. At any meeting of stockholders, directors shall be elected by a plurality of votes, and all other matters shall be decided by a vote of the holders of at least 55% of the shares of capital stock issued and outstanding, cast by the stockholders present in person or represented by proxy and entitled to vote, unless the matter is one for which, by express provisions of statute, of the Certificate of Incorporation or of these By-Laws, a greater vote is required, in which case such express provision shall govern and control the determination of such matter. Section 2.7. Voting. At any meeting of the stockholders, each stockholder having the right to vote shall be entitled to vote in person or by proxy. To determine the stockholders entitled to notice of or to vote at any meeting of the stockholders or any adjournment thereof, the Board of Directors may fix, in advance, a record date which shall be not more than sixty days nor less than ten days before the date of such meeting. Except as otherwise provided by the Certificate of Incorporation or by statute, each stockholder of record shall be entitled to one vote for each outstanding share of capital stock standing in his or her name on the books of the Corporation as of the record date. A complete list of the stockholders entitled to vote at any meeting of stockholders arranged in alphabetical order with the address of each and the number of shares held by each, shall be prepared by the Secretary. Such list shall be open to the examination of any stockholder for any purpose germane to the meeting during ordinary business hours for a period of at least ten days prior to the meeting, at the locations specified by the Delaware General Corporation Law. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 2.8. Proxies. Each proxy shall be in writing executed by the stockholder giving the proxy or his or her duly authorized attorney. No proxy shall be valid after the expiration of three years from its date, unless a longer period is provided for in the proxy. Unless and until voted, every proxy shall be revocable at the pleasure of the person who executed it or his or her legal representatives or assigns, except in those cases where an irrevocable proxy permitted by statute has been given. Section 2.9. Consents. The provision of these By-Laws covering notices and meetings to the contrary notwithstanding, any action required or permitted to be taken at any meeting of stockholders may be taken without a meeting, without prior notice and without a vote, if a consent in writing setting forth the action so taken shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would have been necessary to authorize or take such action at a meeting at which all shares of stock entitled to vote thereon were present and voted. Where corporate action is taken in such manner by less than unanimous written consent, prompt written notice of the taking of such action shall be given to all stockholders who have not consented in writing thereto and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting. ARTICLE III DIRECTORS --------- Section 3.1. Board of Directors. The business and affairs of the Corporation shall be managed by a Board of Directors. The Board of Directors may exercise all such powers of the Corporation and do all such lawful acts and things on its behalf as are not by statute or by the Certificate of Incorporation or by these By-Laws directed or required to be exercised or done by the stockholders. Section 3.2. Number; Election and Tenure. The number of directors shall be fixed initially by the incorporator of the Corporation and thereafter such number may be increased from time to time by the stockholders or by the Board of Directors or may be decreased by the stockholders. Except as provided by law or these By-Laws, directors shall be elected each year at the annual meeting of stockholders. Each director shall hold office until the next annual meeting of the stockholders and until his or her successor shall have been duly elected and qualified, or until his or her death, or until he or she shall have resigned, or have been removed, as hereinafter provided in these By-Laws, or as otherwise provided by statute or the Certificate of Incorporation. Section 3.3. Resignation and Removal. A director may resign at any time by giving written notice to the Board of Directors or to the Chief Executive Officer of the Corporation. Such resignation shall take effect upon receipt thereof by the Board of Directors or by the Chief Executive Officer, unless otherwise specified therein. Any one or more of the directors may be removed, with or without cause, at any time by the affirmative vote of a majority of the then existing shares outstanding at any meeting of the stockholders called for such purpose. Section 3.4. Vacancies. A vacancy occurring for any reason and newly created directorships resulting from an increase in the authorized number of directors may be filled by the vote of a majority of the directors then in office, although less than a quorum, or by the sole remaining director, or by the stockholders. Section 3.5. Compensation. Each director shall receive for services rendered as a director of the Corporation such compensation as may be fixed by the Board of Directors. Nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. ARTICLE IV MEETINGS OF THE BOARD --------------------- Section 4.1. Time and Place. Meetings of the Board of Directors shall be held at such places, within or without the State of Delaware, and within or without the United States of America, as shall be determined in accordance with these By-Laws. Section 4.2. Annual Meeting. Immediately after and at the place of the annual meeting of the stockholders, or at such other place as the Board of Directors may designate, a meeting of the newly elected Board of Directors for the purpose of organization and the election of officers and otherwise may be held. Such meeting may be held without notice. Section 4.3. Regular Meetings. Regular meetings of the Board of Directors may be held without notice, at such time and place as shall, from time to time, be determined by the Board of Directors. Section 4.4. Special Meetings. Special meetings of the Board of Directors may be held at any time and place as shall be determined by resolution of the Board of Directors or upon the call of the Chief Executive Officer, the Secretary, or any member of the Board of Directors on two days notice to each director by mail or on one day's notice personally or by telecopy, telephone or telegraph. Meetings of the Board of Directors may be held at any time without notice if all the directors are present, or if those not present waive notice of the meeting in writing, either before or after the meeting. Section 4.5. Quorum and Voting. A majority of the entire Board of Directors shall constitute a quorum at any meeting of the Board of Directors and the act of a majority of the directors shall be the act of the Board of Directors, except as may otherwise be specifically provided by law, the Certificate of Incorporation or by these By-Laws. If at any meeting of the Board of Directors there shall be less than a quorum present, the director or directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall have been obtained. Section 4.6. Consents. Any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting if all members of the Board of Directors consent to such action in writing, and such writing or writings are filed with the minutes of the proceedings of the Board of Directors. Section 4.7. Telephonic Meetings of Directors. The Board of Directors may participate in a meeting by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other. Participation by such means shall constitute presence in person at such meeting. ARTICLE V COMMITTEES OF THE BOARD ----------------------- Section 5.1. Designation and Powers. The Board of Directors may in its discretion designate one or more committees. Each committee shall consist of one or more of the directors of the Corporation. Such committee or committees shall have duties and powers not inconsistent with the laws of the State of Delaware, the Certificate of Incorporation, these By-Laws, and the respective resolution or resolutions of the Board of Directors. ARTICLE VI NOTICES ------- Section 6.1. Delivery of Notices. Notices to directors and stockholders shall be in writing and may be delivered personally or by mail. Notice by mail shall be deemed to be given at the time when deposited in the United States mail, postage prepaid, and addressed to directors or stockholders at their respective addresses appearing on the books of the Corporation, unless any such director or stockholder shall have filed with the Secretary of the Corporation a written request that notices intended for him or her be mailed or delivered to some other address, in which case the notice shall be mailed to or delivered at the address designated in such request. Notice to directors may also be given by telegram or by telecopy. Section 6.2. Waiver of Notice. Whenever notice is required to be given by statute, the Certificate of Incorporation or these By-Laws, a waiver thereof in writing, signed by the person or persons entitled to such notice whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. Attendance of a person at a meeting of stockholders, directors or any committee of directors, as the case may be, shall constitute a waiver of notice of such meeting, except where the person is attending for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of stockholders, directors or committee of directors need be specified in any written waiver of notice. ARTICLE VII CHAIRMAN OF THE BOARD AND EXECUTIVE OFFICERS -------------------------------------------- Section 7.1. Chairman of the Board and Executive Officers. At the annual meeting of directors the Board of Directors shall elect a Chairman of the Board (which may be an executive or non-executive position, as determined by the Board of Directors), Chief Executive Officer, President, Secretary and Treasurer and may elect one or more Vice Presidents, Assistant Secretaries or Assistant Treasurers and such other officers as the Board of Directors may from time to time designate or the business of the Corporation may require. Except for the Chairman of the Board, no executive officer need be a member of the Board. Any number of offices may be held by the same person, except that the office of Secretary may not be held by the Chairman of the Board or the Chief Executive Officer. Section 7.2. Other Officers and Agents. The Board of Directors may also elect such other officers and agents as the Board of Directors may at any time or from time to time determine to be advisable, such officers and such agents to serve for such terms and to exercise such powers and perform such duties as shall be specified at any time or from time to time by the Board of Directors. Section 7.3. Tenure; Resignation; Removal; Vacancies. The Chairman of the Board and each officer of the Corporation shall hold office until his or her successor is elected and qualified, or until his or her earlier resignation or removal; provided, that if the term of office of any officer elected or appointed pursuant to Section 7.2 of these By-Laws shall have been fixed by the Board of Directors, he or she shall cease to hold such office no later than the date of expiration of such term regardless of whether any other person shall have been elected or appointed to succeed him or her. The Chairman of the Board or any officer elected by the Board of Directors may be removed at any time, with or without cause, by the Board of Directors; provided, that any such removal shall be without prejudice to the rights, if any, of the officer so employed under any employment contract or other agreement with the Corporation. The Chairman of the Board or any officer may resign at any time upon written notice to the Board of Directors. If the office of the Chairman of the Board or any officer becomes vacant by reason of death, resignation, retirement, disqualification, removal from office or otherwise, the Board of Directors may choose a successor or successors to hold office for such term as may be specified by the Board of Directors. Section 7.4. Compensation. Except as otherwise provided by these By-Laws, the salaries of the Chairman of the Board, if an executive, and all officers and agents of the Corporation appointed by the Board of Directors shall be fixed by the Board of Directors. Section 7.5. Authority and Duties. The Chairman of the Board and all officers as between themselves and the Corporation, shall have such authority and perform such duties in the management of the Corporation as may be provided in these By-Laws. In addition to the powers and duties hereinafter specifically prescribed for the Chairman of the Board and the respective officers, the Board of Directors may from time to time impose or confer upon any of the officers such additional duties and powers as the Board of Directors may see fit, and the Board of Directors may from time to time impose or confer any or all of the duties and powers hereinafter specifically prescribed for any officer upon any other officer or officers. Section 7.6. Chairman of the Board. The Chairman of the Board of Directors, who shall be a director, shall preside at all meetings of the stockholders and at all meetings of the Board of Directors. He or she shall perform such other duties as may be assigned from time to time by the Board of Directors. Section 7.7. Chief Executive Officer. The Chief Executive Officer shall perform such duties as may be assigned to him or her by the Board of Directors, and in the event of disability or absence of the Chairman of the Board, perform the duties of the Chairman of the Board, including presiding at meetings of stockholders and directors. He or she shall from time to time report to the Board of Directors all matters within his or her knowledge which the interest of the Corporation may require to be brought to their notice, and shall also have such other powers and perform such other duties as may be specifically assigned to him or her from time to time by the Board of Directors. The Chief Executive Officer shall see that all resolutions and orders of the Board of Directors are carried into effect, and in connection with the foregoing, shall be authorized to delegate to the President, the Vice President and the other officers such of his or her powers and such of his or her duties as he or she may deem to be advisable. Section 7.8. The President. The President shall perform such duties as may be assigned to him or her from time to time by the Board of Directors or as may be designated by the Chief Executive Officer. In case of the absence or disability of the Chief Executive Officer the duties of the office shall, if the Board of Directors or the Chief Executive Officer has so authorized, be performed by the President. Section 7.9. The Vice President(s). The Vice President, or if there be more than one, the Vice Presidents, shall perform such duties as may be assigned to them from time to time by the Board of Directors or as may be designated by the Chief Executive Officer or President. In case of the absence or disability of the President the duties of the office shall, if the Board of Directors, the Chief Executive Officer or the President has so authorized, be performed by the Vice President, or if there be more than one Vice President, by such Vice President as the Board of Directors, the Chief Executive Officer or President shall designate. Section 7.10. The Treasurer. The Treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all monies and other valuable effects in the name and to the credit of the Corporation, in such depositories as may be designated by the Board of Directors or by any officer of the Corporation authorized by the Board of Directors to make such designation. The Treasurer shall exercise such powers and perform such duties as generally pertain or are necessarily incident to his or her office and shall perform such other duties as may be specifically assigned to him or her from time to time by the Board of Directors or by the Chief Executive Officer, President or any Vice President. Section 7.11. The Secretary. The Secretary shall attend all meetings of the Board of Directors and all meetings of the stockholders and record all votes and the minutes of all proceedings in a book to be kept for that purpose; and shall perform like duties for any committee when required. He or she shall give, or cause to be given, notice of all meetings of the stockholders and, when necessary, of the Board of Directors. The Secretary shall exercise such powers and perform such duties as generally pertain or are necessarily incident to his or her office and he or she shall perform such other duties as may be assigned to him or her from time to time by the Board of Directors, the Chief Executive Officer, President or by any Vice President. ARTICLE VIII CERTIFICATES OF STOCK --------------------- Section 8.1. Form and Signature. The certificates of stock of the Corporation shall be in such form or forms not inconsistent with the Certificate of Incorporation as the Board of Directors shall approve. They shall be numbered, the certificates for the shares of stock of each class to be numbered consecutively, and shall be entered in the books of the Corporation as they are issued. They shall exhibit the holder's name and number of shares and shall be signed by the Chief Executive Officer, President or a Vice President and the Treasurer (or any Assistant Treasurer) or the Secretary (or any Assistant Secretary); provided, however, that where any such certificate is signed by a transfer agent or an assistant transfer agent, or by a transfer clerk acting on behalf of the Corporation, and registered by a registrar, the signature of any such Chief Executive Officer, President, Vice President, Treasurer, Assistant Treasurer, Secretary or Assistant Secretary, may be a facsimile. In case any officer or officers who shall have signed, or whose facsimile signature or signatures shall have been used on any such certificate or certificates, shall cease to be such officer or officers of the Corporation, whether because of death, resignation, removal or otherwise, before such certificate or certificates shall have been delivered by the Corporation, such certificate or certificates may nevertheless be issued and delivered as though the person or persons who signed such certificate or certificates, or whose facsimile signature or signatures shall have been used thereon, had not ceased to be such officer or officers of the Corporation. Section 8.2. Lost or Destroyed Certificates. The Board of Directors may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate or stock to be lost or destroyed. When authorizing such issue of a new certificate or certificates, the Board of Directors may in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed certificate or certificates, or his or her legal representatives, to advertise the same in such manner as it shall require, and to give a bond in such sum as the Board of Directors may direct, indemnifying the Corporation, any transfer agent and any registrar against any claim that may be made against them or any of them with respect to the certificate alleged to have been lost or destroyed. Section 8.3. Registration of Transfer. Upon surrender to the Corporation of a certificate for shares, duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, the Corporation shall issue a new certificate to the person entitled thereto, cancel the old certificate, and record the transaction on its books. ARTICLE IX GENERAL PROVISIONS ------------------ Section 9.1. 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 entitled to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. Section 9.2. Registered Stockholders. The Corporation shall be entitled to treat the holder of record of any share or shares of stock as the holder in fact thereof and accordingly shall not be bound to recognize any equitable or other claim to or interest in such share on the part of any other person, whether or not it shall have express or other notice thereof, save as expressly provided by the laws of the State of Delaware. Section 9.3. Dividends. Dividends upon the capital stock of the Corporation shall in the discretion of the Board of Directors from time to time be declared by the Board of Directors out of funds legally available therefor after setting aside of proper reserves. Section 9.4. Checks and Notes. All checks and drafts on the bank accounts of the Corporation, all bills of exchange and promissory notes of the Corporation, and all acceptances, obligations and other instruments for the payment of money drawn, signed or accepted by the Corporation, shall be signed or accepted, as the case may be, by such officer or officers, agent or agents as shall be thereunto authorized from time to time by the Board of Directors or by officers of the Corporation designated by the Board of Directors to make such authorization. Section 9.5. Fiscal Year. The fiscal year of the Corporation shall be fixed by the Board of Directors. Section 9.6. Voting of Securities of Other Corporations. In the event that the Corporation shall at any time own and have power to vote any securities (including but not limited to shares of stock) of any other issuer, such securities shall be voted by such person or persons, to such extent and in such manner, as may be determined by the Board of Directors. Section 9.7. Transfer Agent. The Board of Directors may make such rules and regulations as it may deem expedient concerning the issue, transfer and registration of stock. It may appoint one or more transfer agents and one or more registrars and may require all stock certificates to bear the signature of either or both. Section 9.8. Corporate Seal. The corporate seal shall have inscribed thereon the name of the Corporation and the words "Corporate Seal, Delaware". ARTICLE X INDEMNIFICATION --------------- Section 10.1. Indemnification. (a) Actions, Suits or Proceedings Other Than by or in the Right of the Corporation. The Corporation shall indemnify any current or former director or officer of the Corporation and may, at the discretion of the Board of Directors, indemnify any current or former employee or agent of the Corporation who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that such person is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent (including trustee) of another corporation, partnership, joint venture, trust or other enterprise (including employee benefit plans) (funds paid or required to be paid to any person as a result of the provisions of this Section 10.1 shall be returned to the Corporation or reduced, as the case may be, to the extent that such person receives funds pursuant to an indemnification from any such other corporation, partnership, joint venture, trust or enterprise) to the fullest extent permissible under Delaware law, as then in effect, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person seeking indemnification did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was unlawful. (b) Actions or Suits by or in the Right of the Corporation. The Corporation shall indemnify any current or former director or officer of the Corporation and may, at the discretion of the Board of Directors, indemnify any current or former employee or agent of the Corporation who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit, by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that such person is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent (including trustee) of another corporation, partnership, joint venture, trust or other enterprise (including employee benefit plans) (funds paid or required to be paid to any person as a result of the provisions of this Section 10.1 shall be returned to the Corporation or reduced, as the case may be, to the extent that such person receives funds pursuant to an indemnification from any such other corporation, partnership, joint venture, trust or enterprise) to the fullest extent permitted under Delaware law, as then in effect, against expenses (including attorneys' fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit, if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery of the State of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. (c) Indemnification for Expenses of Successful Party. To the extent that a director, officer, employee or agent of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in paragraph (a) or (b) of this Section 10.1, or in defense of any claim, issue or matter therein, such person shall be indemnified by the Corporation against expenses (including attorneys' fees) actually and reasonably incurred by him or her in connection therewith. (d) Determination of Right to Indemnification. Any indemnification under paragraph (a) or (b) of this Section 10.1 (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances because such person has met the applicable standard of conduct set forth in paragraphs (a) and (b) of this Section 10.1. Such determination shall be made (1) by the Board of Directors by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum or (2) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (3) by the holders of a majority of the shares of capital stock of the Corporation entitled to vote thereon. (e) Advancement of Expenses. Expenses (including attorneys' fees) incurred by an officer or director in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the Corporation as authorized in this Section 10.1. Such expenses (including attorneys' fees) incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the Board of Directors deems appropriate. (f) Other Rights. The indemnification and advancement of expenses provided by, or granted pursuant to, the other paragraphs of this Section 10.1 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any By-Law, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in an official capacity and as to action in another capacity while holding such office. (g) Insurance. By action of the Board of Directors, notwithstanding an interest of the directors in the action, the Corporation may purchase and maintain insurance, in such amounts as the Board of Directors deems appropriate, on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent (including trustee) of another corporation, partnership, joint venture, trust or other enterprise (including employee benefit plans), against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person's status as such, whether or not the Corporation shall have the power to indemnify such person against such liability under the provisions of this Section 10.l. (h) Continuation of Rights to Indemnification. The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 10.1 shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. (i) Protection of Rights Existing at Time of Repeal or Modification. Any repeal or modification of this Section 10.1 shall not adversely affect any right or protection of an indemnified person existing at the time of such repeal or modification. ARTICLE XI AMENDMENTS ---------- Section 11.1. By the Stockholders. These By-Laws may be altered, amended or repealed in whole or in part, and new By-Laws may be adopted, by the affirmative vote of the holders of a majority of the shares of capital stock issued and outstanding and entitled to vote at any annual or special meeting of the stockholders, if notice thereof shall be contained in the notice of the meeting. Section 11.2. By the Board of Directors. These By-Laws may be altered, amended or repealed by the Board of Directors at any regular or special meeting of the Board of Directors if notice thereof shall be contained in the notice of the meeting. EX-99 3 nyc1095698.txt EXHIBIT 99.1 - PRESS RELEASE Exhibit 99.1 NEWS CONTACT: Raymond A. Cardonne Chief Financial Officer Tel: 201-585-0600 about Fax: 201-585-2020 Refac Optical Group Web site: www.refac.com ================================================================================ REFAC COMPLETES ACQUISITIONS OF U.S. VISION AND OPTICARE -------------------------------------------------- Combination Creates Sixth Largest Retail Optical Company in the United States to be Called Refac Optical Group Highlights: o Experienced senior management team and strong Board of Directors o Leading store within a store retailer with 517 locations in host stores throughout 47 states and Canada o Organic and acquisition growth potential Fort Lee, New Jersey (March 6, 2006) - Refac Optical Group (AMEX: REF) announced today that it has completed its acquisitions of U.S. Vision, Inc. ("U.S. Vision") and OptiCare Health Systems, Inc. ("OptiCare") announced in August 2005. The Company also changed its name to Refac Optical Group to better reflect its new businesses. As a result of these acquisitions, Refac Optical Group has become a leader in the retail optical industry and the sixth largest retail optical chain in the United States. It operates at 543 locations in 47 states and Canada, consisting of 517 licensed departments, eight freestanding stores, 18 eye health centers and professional optometric practices, two surgery centers, one of which is a laser correction center, and two manufacturing laboratories. Of the 517 licensed departments, 351 are located at J.C. Penney stores, 67 at Sears, 49 in regional department stores, 30 at The Bay, a division of Hudson's Bay Company, Canada's oldest and largest traditional department store retailer, 13 departments at Meijer, and, most recently, seven at Macy's. These licensed departments are full-service retail vision care stores that offer an extensive selection of designer brands and private label prescription eyewear, contact lenses, sunglasses, ready-made readers and accessories. Transaction Background ---------------------- Prior to the completion of the transactions, the Company, OptiCare and U.S. Vision were all controlled by Palisade Concentrated Equity Partnership, L.P. ("Palisade"). Following the transactions, Palisade owns approximately 88% of the Company's outstanding shares. In connection with the acquisition of OptiCare, Palisade received approximately 0.0403 shares of Company common stock for each share of OptiCare common stock owned by it immediately prior to the transaction and preferred stockholders received 0.0403 shares of Company common stock for each share of OptiCare common stock issued to them upon conversion of OptiCare preferred stock. All other shares of OptiCare common stock outstanding immediately prior to the transaction were converted into the right to receive 0.0472 shares of Company common stock. The Company will be sending instructions to former OptiCare stockholders explaining how to exchange their stock certificates for stock certificates of the Company. In the U.S. Vision transaction, U.S. Vision stockholders received 0.4141 shares of the Company's common stock for each share of U.S. Vision common stock. Upon completion of the transactions, 4.5 million and 6.6 million shares will be issued to OptiCare and U.S. Vision shareholders, respectively, and the Company will have approximately 18 million shares outstanding. The closing price of the Company's stock on March 3, 2006 was $8.15. Prior to the mergers, the Company and OptiCare entered into a non-binding letter of intent with a nationally recognized managed care provider with respect to a sale of its managed vision care division. New Leadership -------------- The Company also announced that J. David Pierson has been promoted to President and Chief Executive Officer, having served as President and Chief Operating Officer of Refac since June 2005. Mr. Pierson's more than 30 years in retailing includes over 17 years of expertise in operating licensed departments in a host store environment. Prior to joining Refac, Mr. Pierson served as Chairman, President and Chief Executive Officer of CPI Corporation, a New York Stock Exchange traded company providing portrait photography services in over 1,000 studios throughout the United States, Canada and Puerto Rico principally under license agreements with Sears and served from 1996 to 2001 as President of Licensed Brands for Cole National, a leading optical retailer, where he led the expansion of vision care products and services from 650 stores to more than 1,100 stores under the banners of Sears Optical, Target and BJ's Wholesale Clubs. Additionally, Clark A. Johnson was appointed as the non-executive Chairman of the Board. Mr. Johnson has been a director of the Company since 2000 and has extensive retail experience, having served as the Chairman and Chief Executive Officer of Pier 1 Imports from March 1985 to June 1998. During such period, Pier 1 Imports' sales grew from under $200 million to over $1 billion. He is also the chairman of PSS World Medical (NASDAQ: PSSI). Robert L. Tuchman, who has served as Refac's Chief Executive Officer since 1997, will now serve as its Senior Vice President, General Counsel, Secretary and Chairman of the Executive Committee of the Company's Board of Directors. The Company also increased the size of its Board of Directors from 9 directors to 12 directors and elected Dean J. Yimoyines, M.D., David C. Stone, Esq. and Joseph W. Marino to fill the resulting vacancies. Dr. Yimoyines, age 58, has been the Chairman of the Board of Directors of OptiCare since August 1999 and served as its Chief Executive Officer from August 1999 to January 2005 and was appointed its Interim Chief Executive Officer on December 5, 2005. Mr. Stone, age 58, is a practicing attorney and a partner of the law firm of Bodman LLP. Mr. Marino, age 66, is a private investor. Previously, from 1984 until November 1, 2004, he was the President and Chief Executive Officer of The Marco Group, an operator of post-secondary vocational schools. Messrs. Stone and Marino also served as directors of U.S. Vision from January and March 2005, respectively, until March 6, 2006. On March 6, 2006, the Company also held its annual meeting of stockholders. Among other things, the Company's stockholders re-elected six directors to the Board of Directors and voted to amend the certificate of incorporation to eliminate the classified Board of Directors. J. David Pierson, the new President and Chief Executive Officer of Refac Optical Group, said, "Today, a new company emerges that is already a significant force in the retail eye care business. We have an outstanding senior management team and national organization, superb relationships with our host stores and an exceptional Board of Directors. I view this as an excellent opportunity, and I look forward to serving as the Chief Executive Officer of this exciting new company." Further information regarding the completion of the acquisitions and the actions taken at the Company's annual meeting of stockholders is included in the Company's Current Report on Form 8-K filed with the Securities and Exchange Commission today. * * * CAUTIONARY STATEMENT REGARDING ------------------------------ FORWARD-LOOKING STATEMENTS -------------------------- This News Release includes certain statements of the Company that may constitute "forward-looking statements" within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended, and which are made pursuant to the Private Securities Litigation Reform Act of 1995. These forward-looking statements and other information relating to the Company are based upon the beliefs of management and assumptions made by and information currently available to the Company. Forward-looking statements include statements concerning plans, objectives, goals, strategies, future events, or performance, as well as underlying assumptions and statements that are other than statements of historical fact. When used in this document, the words "expects," "anticipates," "estimates," "plans," "intends," "projects," "predicts," "believes," "may" or "should," and similar expressions, are intended to identify forward-looking statements. These statements reflect the current view of the Company's management with respect to future events. Many factors could cause the actual results, performance or achievements of the Company to be materially different from any future results, performance, or achievements that may be expressed or implied by such forward-looking statements, including, but not limited to, whether the mergers with OptiCare and U.S. Vision will prove to be beneficial acquisitions for the Company. Investors are cautioned that all forward-looking statements involve those risks and uncertainties detailed in the Company's filings with the Securities and Exchange Commission, including its Annual Report on Form 10-K for the fiscal year ended December 31, 2004 and its Form S-4 registration statement, which became effective on February 14, 2006. Forward-looking statements speak only as of the date they are made and the Company undertakes no duty or obligation to update any forward-looking statements in light of new information or future events. -----END PRIVACY-ENHANCED MESSAGE-----