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SCHEDULE 14C INFORMATION
INFORMATION STATEMENT PURSUANT TO SECTION 14(C)
OF THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO. 1)
Check the appropriate box:
[ ] Preliminary Information Statement [ ] Confidential, for Use of the Commission
Only (as permitted by Rule 14c-5(d)(2))
[X] Definitive Information Statement
FORTE COMPUTER EASY, INC.
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(Name of Registrant As Specified in Charter)
Payment of Filing Fee (Check the appropriate box):
[ ] $125 per Exchange Act Rules 0-11(c)(1)(ii), or 14c-5(g).
[ ] Fee computed on table below per Exchange Act Rules 14c-5(g) and 0-11.
(1) Title of each class of securities to which transaction applies:
(2) Aggregate number of securities to which transaction applies:
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (Set forth the amount on which the
filing fee is calculated and state how it was determined):
(4) Proposed maximum aggregate value of transaction:
(5) Total fee paid:
[ ] Fee paid previously with preliminary materials
[ ] Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
(2) Form, Schedule or Registration Statement No.:
(3) Filing Party:
(4) Date Filed:
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FORTE COMPUTER EASY, INC.
1350 Albert Street
Youngstown, Ohio 44505
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NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
TO BE HELD ON APRIL 1, 1997
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To Our Shareholders:
A Special Meeting of Shareholders of FORTE COMPUTER EASY INC., a Utah
corporation (the "Company"), will be held at the Holiday Inn Metroplex, 1620
Motor Inn Drive, Girard, Ohio 44420, on April 1, 1997, at 9:30 a.m., Eastern
Standard Time, for the following purposes:
1. To ratify the adoption of the Company's 1996 Stock Option Plan
pursuant to which options to purchase shares of Common
Stock will be granted to employees and non-employee directors of
the Company;
2. To approve the reincorporation of the Company as a Delaware
corporation and a related Agreement and Plan of Merger pursuant
to which the Company will be merged into a wholly-owned
Delaware subsidiary;
3. To transact such other business as may properly come before the
meeting or any adjournment(s) thereof. Management is presently
aware of no other business to come before the meeting.
The Board of Directors has fixed the close of business on February 20,
1997, as the record date for the determination of Shareholders entitled to
notice of and to vote at the meeting or any adjournment(s) thereof (the "Record
Date"). Shares of Common Stock and Preferred Stock can be voted at the meeting
only if the holder is present at the meeting in person or by valid proxy.
Management is not soliciting proxies in connection with the Special Meeting, and
Shareholders are requested not to send proxies to the Company. Management of the
Company cordially invites you to attend the Special Meeting. Your attention is
directed to the attached Information Statement.
By Order of the Board of Directors
Frank J. Amedia
President and Chief Executive Officer
Youngstown, Ohio
February 21, 1997
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FORTE COMPUTER EASY, INC.
INFORMATION STATEMENT FOR THE SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD APRIL 1, 1997
TABLE OF CONTENTS
PAGE
INFORMATION CONCERNING VOTING..................................................................... 1
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.................................... 2
EXECUTIVE COMPENSATION............................................................................. 4
Summary Compensation Table................................................................. 4
Aggregated Option Exercises in Last Fiscal Year and Option Value as of December 31, 1996... 5
Employment Contracts....................................................................... 5
Stock Option Plans......................................................................... 5
PROPOSAL NO. 1 - 1996 STOCK OPTION PLAN............................................................ 6
PROPOSAL NO. 2 - REINCORPORATION IN DELAWARE....................................................... 10
Certain Consequences of the Merger......................................................... 12
Possible Negative Consequences of the Merger............................................... 14
Right of Stockholders to Dissent........................................................... 14
Certain Significant Differences Between the Corporation Laws of Utah and Delaware.......... 15
Certain Differences Between Charter and Bylaw Provisions of the Company and AAPC........... 17
Abandonment or Amendment of the Reincorporation............................................ 17
OTHER MATTERS...................................................................................... 18
Independent Auditors....................................................................... 18
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FORTE COMPUTER EASY, INC.
1350 Albert Street
Youngstown, Ohio 44505
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INFORMATION STATEMENT
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This information statement is being furnished to the shareholders of
FORTE COMPUTER EASY, INC., A Utah corporation (the "Company"), in connection
with the Special Meeting of the Shareholders of the Company to be held on April
1, 1997, at 9:30 a.m., Eastern Standard time, and any adjournment or
postponement thereof (the "Special Meeting"). A copy of the Notice of the
Meeting accompanies this Information Statement. It is anticipated that the
mailing of this Information Statement will commence on March 10, 1997.
WE ARE NOT ASKING YOU FOR A PROXY
AND YOU ARE REQUESTED NOT TO SEND US A PROXY
VOTING
Only shareholders of record at the close of business on February 20,
1997 (the "Record Date") are entitled to notice of and to vote at the Special
Meeting or any adjournment or postponement thereof. On the Record Date,
48,605,794 shares of Common Stock, $.01 par value (the "Common Stock"), were
issued and outstanding. Each holder of Common Stock is entitled to one vote,
exercisable in person or by proxy, for each share of the Company's Common Stock
held of record on the Record Date. In addition, on the Record Date, 1,000,000
shares of Series A Convertible Preferred Stock, $.01 par value (the "Preferred
Stock"), were issued and outstanding. Each holder of Preferred Stock is entitled
to 75.486324 votes, exercisable in person or by proxy, for each share of the
Company's Preferred Stock held of record on the Record Date. The holders of
Common and Preferred Stock shall vote as one class on both proposals described
in this Information Statement.
THE PROPOSALS FOR WHICH SHAREHOLDER APPROVAL IS BEING SOUGHT CANNOT BE
APPROVED WITHOUT THE AFFIRMATIVE VOTE OF THE HOLDERS OF A MAJORITY OF THE VOTES
PRESENT, IN PERSON OR BY PROXY, AT THE SPECIAL MEETING. BROKERS CANNOT VOTE
"STREET NAME" STOCK ON BEHALF OF BENEFICIAL OWNERS UNLESS THE BROKER RECEIVES AN
EXECUTED PROXY FROM THE BENEFICIAL OWNER.
Abstentions and broker non-votes will be included in the determination
of the number of shares represented for a quorum. In order to vote their shares
in person at the meeting, shareholders who own their shares in "street name"
must obtain a special proxy card from their broker.
The Board of Directors does not know of any matters other than the
proposals to (i) ratify the 1996 Stock Option Plan and (ii) approve the
reincorporation of the Company as a Delaware corporation (the "Reincorporation")
and the related Agreement and Plan of Merger (the "Merger Agreement"), that are
expected to be presented for consideration at the meeting.
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
SECURITY OWNERSHIP OF MANAGEMENT AND PRINCIPAL SHAREHOLDERS
The following table sets forth certain information concerning the
beneficial ownership of the Company's Common Stock and Preferred Stock as of
January 27, 1997, by (i) each beneficial owner of more than 5% of the Company's
Common Stock or Preferred Stock, (ii) each director of the Company, (iii) each
executive officer of the Company, and (iv) all executive officers and directors
as a group. This information was determined in accordance with Rule 13(d)-3
under the Securities Exchange Act of 1934, as amended, and is based upon the
information furnished by the persons listed below. Except as otherwise
indicated, each shareholder listed possesses sole voting and investing power
with respect to the shares indicated as being beneficially owned.
Shares of Stock
Beneficially Owned
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Number of Shares Percent of
Class of Stock Name and Address Beneficially Held Class
-------------- ---------------- ----------------- -----------
Common Frank J. Amedia(1) 33,593,262(2) 61.2%
Common John Masternick 3,696,799(3) 7.5%
20 E. Liberty Street
Girard, Ohio 44420
Common Anthony DePrima 3,029,692(4) 6.1%
501 Reservation Road
Marina, California 93933
Common Charles E. Trebilcock(1) 508,333(5) 1.0%
Common George Hofmeister(1) 25,000 *
Common David McKelvey(1) 0 0
Common Jim Phillips(1) 0 0
Common Joseph Dominijanni(1) 20,000 *
Common W.R. Jackson, Jr.(1) 0 0
Common John J. Cafaro(1) 0 0
Common AAP Holdings, Inc.
100 S. Broadway Avenue
Salem, Ohio 44460 33,593,262(6) 61.2%
Common All directors and executive
officers of the Company as a
group (9 persons) 37,843,394(7) 67.1%
Preferred AAP Holdings, Inc. 1,000,000(8) 100.0%
100 S. Broadway Avenue
Salem, Ohio 44460
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* Less than 1%
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(1) c/o Forte Computer Easy, Inc., 1350 Albert Street, Youngstown, Ohio
44505.
(2) Includes 4,262,440 shares of common stock which are subject to
unexercised options that were exercisable on January 27, 1997 or within
sixty days thereafter. Also includes an additional 1,718,422 unissued
shares of common stock which the Company is obligated to issue to Mr.
Amedia and 324,323 shares of common stock which Forte, Inc. is obligated
to transfer to Mr. Amedia in connection with the acquisition of Forte,
Inc. in June, 1994.
(3) Includes 455,258 shares of common stock which are subject to unexercised
options that were exercisable on January 27, 1997 or within sixty days
thereafter.
(4) Includes 1,000,000 shares of common stock which are subject to
unexercised options that were exercisable on January 27, 1997 or within
sixty days thereafter.
(5) Includes 258,333 shares of common stock owned individually and 250,000
shares held by a custodian for the benefit of an individual retirement
account of Mr. Trebilcock. In addition, LGL Company, owned by Lionel
Trebilcock, brother of Mr. Trebilcock, owns 133,333 common shares. Mr.
Trebilcock does not have any beneficial interest in or control over the
shares owned by either LGL Company or Lionel Trebilcock. On October 3,
1994, Robert Trebilcock, son of Mr. Trebilcock, purchased 125,000 common
shares, and Mr. Trebilcock does not have any beneficial interest in or
control over such shares.
(6) Does not include 8,798,322 shares of common stock which are subject to
unexercised options that are exercisable only upon the occurrence of
certain contingencies. Includes 27,288,077 shares of common stock owned
by Amedia, 1,718,422 shares of common stock issuable to Amedia by the
Company, 324,323 shares of common stock Forte, Inc. is obligated to
transfer to Amedia and 4,262,440 shares of common stock subject to
unexercised options that were exercisable on January 27, 1997 or within
sixty days thereafter. In connection with the transaction between AAP
Holdings, Inc. and the Company, Amedia granted AAP Holdings, Inc. an
irrevocable proxy to vote all shares of common Stock currently or
hereafter owned by Amedia in favor of the Reincorporation (Proposal No.
2) and any matters submitted to the shareholders of the Company relating
to the repayment of amounts owing to MascoTech, Inc. under those certain
Promissory Notes dated August 29, 1996 in the original principal amount
of $8,000,000. The proxy expires on December 31, 1997.
(7) Includes 5,717,698 shares of common stock which are subject to
unexercised options that were exercisable on January 27, 1997 or within
sixty days thereafter as described above and 2,042,745 shares of common
stock the Company and Forte, Inc. are obligated to issue to Mr. Amedia.
(8) George Hofmeister, Chairman of the Board of Directors of the Company, is
the controlling shareholder of the corporate parent of AAP Holdings,
Inc.
CHANGE IN CONTROL
Pursuant to the Agreement and Plan of Reorganization by and between the
Company and AAP Holdings, Inc. ("AAPH"), dated October 25, 1996 (the
"Reorganization Agreement"), AAPH acquired 1,000,000 shares of Preferred Stock
of the Company in exchange for all of the issued and outstanding stock of
American Architectural Products, Inc., which was a wholly-owned subsidiary of
AAPH. AAPH also obtained a voting proxy from Frank Amedia in connection with the
Reorganization Agreement, granting AAPH an irrevocable proxy to vote all of
Amedia's shares of Common Stock in favor of Proposal No. 2 (the Reincorporation)
and in favor of any matters submitted to the stockholders of the Company
relating to the repayment of amounts owing to MascoTech, Inc. from American
Architectural Products, Inc. under those certain Promissory Notes dated August
29, 1996 in the original aggregate principal amount of $8,000,000 (the
"MascoTech Notes").
Prior to execution of the Reorganization Agreement, Frank Amedia had
effective control of the Company, directly owning over 50% of the issued and
outstanding capital stock. Pursuant to the Reorganization Agreement, AAPH now
directly owns 1,000,000 shares of Preferred Stock of the Company. The 1,000,000
shares of Preferred Stock owned by AAPH are convertible into 75,486,324 shares
of Common Stock of the Company, which (assuming the conversion of such shares
into Common Stock) represents 60% of the voting securities of the Company. The
Preferred Stock is fully voting stock and each share of Preferred Stock is
entitled to 75.486324 votes in all matters which stockholders are entitled to
vote upon. In addition to issuing the Preferred Stock to AAPH, the Company
agreed pursuant to the Reorganization Agreement to use its best efforts to cause
the MascoTech Notes to be paid in full on or prior to December 31, 1997.
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EXECUTIVE COMPENSATION
The following table summarizes all compensation paid to the Company's
Chief Executive Officer and all other executive officers of the Company whose
total annual salary and bonus exceeds $100,000 (the "Named Executive Officers")
for services rendered in all capacities to the Company and its subsidiary during
the fiscal year ended December 31, 1996.
SUMMARY COMPENSATION TABLE
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Long Term
ANNUAL COMPENSATION Compensation
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Other Annual Restricted All other
Name and Year Ended Salary Bonus Compensation Stock Compensation
Principal Position December 31, ($) ($) ($)(2) Awards ($)
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Frank J. Amedia, 1996 168,718 0 0 0 0
President and
Chief Executive 1995 193,000 0 0 0 0
Officer(1)
1994 137,294 0 0 0 0
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(1) The amount of compensation paid to Mr. Amedia for 1994 consists of
$47,384 paid from October 1, 1993 through June 7, 1994 (paid by Forte,
Inc.) and an additional $89,910 paid to Mr. Amedia following the closing
of the Forte, Inc. acquisition on June 7, 1994.
(2) Other compensation to Mr. Amedia did not exceed $50,000 or 10% of his
total annual salary during any fiscal year.
AMENDMENT OR REPRICING OF OPTIONS
No stock options previously granted to the executive officers were subject
to repricing during the fiscal year ended December 31, 1996. The Company does
not have a long term incentive plan established for the benefit of its executive
officers or directors.
OPTION GRANTS
No stock options, stock appreciation rights or restricted stock awards were
granted to or exercised by any officers, directors or employees of the Company
or its subsidiaries during the fiscal year ended December 31, 1996. The Company
entered into definitive stock option agreements with Mr. Amedia and Mr.
Masternick dated December 18, 1996, memorializing the terms of stock options
granted in 1994.
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OPTION VALUES
The following table sets forth certain information concerning each exercise
of stock options during the year ended December 31, 1996 by each of the Named
Executive Officers and the aggregated fiscal year-end value of the unexercised
options of each such Named Executive Officer.
AGGREGATED OPTION EXERCISES IN FISCAL 1996
AND OPTION VALUE AS OF DECEMBER 31, 1996
Value of Unexercised
Number of Unexercised Options In-the-Money
at Fiscal Year End (#) Options at Fiscal Year End ($)(1)
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Shares Acquired Value Realized
Name on Exercise (#) ($) Exercisable Unexerciseable Exercisable Unexerciseable
---- --------------- -------------- ----------- -------------- ----------- --------------
Frank J. Amedia -0- $-0- 4,262,440 -0- $2,530,824 $-0-
John Masternick -0- $-0- 455,258 -0- $ 270,309 $-0-
(1) Based on average of reported bid and ask prices for the Common Stock on
December 31, 1996.
EMPLOYMENT CONTRACTS WITH EXECUTIVE OFFICERS
The Company was a party to an employment agreement with Anthony E. DePrima
which had a term extending through December 31, 1995 (subject to renewal). Mr.
DePrima's base compensation under this agreement was $120,000 per annum, plus an
incentive bonus equal 5% of the net profits of the Company. The Company also
provided a car for Mr. DePrima and assumed the cost of his legal malpractice
insurance. The Company exercised its option to terminate Mr. DePrima's
employment agreement effective December 31, 1995. Effective May 15, 1996, the
Company retained Mr. DePrima as a business and legal consultant for a
twelve-month term. In connection therewith, the Company agreed to pay Mr.
DePrima a consulting fee of $1,500 per month.
STOCK OPTION PLANS
EMPLOYEE INCENTIVE STOCK OPTION PLAN
In May of 1992, the Board of Directors of the Company adopted an Employee
Incentive Stock Option Plan (the "Option Plan"). Options to purchase an
aggregate of up to 5,000,000 shares of the Company's common stock are authorized
under the Option Plan. Options granted under the Option Plan have a maximum
duration of ten (10) years from the date of grant. In connection with the
acquisition of Forte in June of 1994, Mr. Amedia and Mr. Masternick (the former
shareholders of Forte) received options to purchase an aggregate of 4,717,698
shares of the Company's common stock at $.375 per share. The aforementioned
options were issued in contemplation of the Company effectuating a reverse stock
split. Until such reverse stock split is effectuated or until such time as
additional shares of the Company's common stock are authorized or purchased as
treasury shares, these options will not be exercisable.
As of December 31, 1996, options to purchase a total of 5,865,548 shares of
the Company's common stock were outstanding, with exercise prices ranging from
$.25 to $.50 per share.
1996 STOCK OPTION PLAN
The Company's 1996 Stock Option Plan (the "1996 Plan") authorizes the Board
to grant options to Directors and employees of the Company to purchase in the
aggregate an amount of shares of Common Stock equal to 10% of the shares of
Common Stock issued and outstanding from time to
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time, but which aggregate amount shall in no event exceed 10,000,000 shares of
Common Stock. Directors, officers and other employees of the Company who, in the
opinion of the Board of Directors, are responsible for the continued growth and
development and the financial success of the Company are eligible to be granted
options under the 1996 Plan. Options may be nonqualified options, incentive
stock options, or any combination of the foregoing. In general, options granted
under the 1996 Plan are not transferable and expire ten (10) years after the
date of grant. The per share exercise price of an incentive stock option granted
under the 1996 Plan may not be less than the fair market value of the Common
Stock on the date of grant. Incentive stock options granted to persons who have
voting control over 10% or more of the Company's capital stock are granted at
110% of the fair market value of the underlying shares on the date of grant and
expire five years after the date of grant. No option may be granted after
December 19, 2006.
The 1996 Plan provides the Board of Directors with the discretion to
determine when options granted thereunder will become exercisable. Generally,
such options may be exercised after a period of time specified by the Board of
Directors at any time prior to expiration, so long as the optionee remains
employed by the Company. No option granted under the 1996 Plan is transferable
by the optionee other than by will or the laws of descent and distribution, and
each option is exercisable during the lifetime of the optionee only by the
optionee. See "EXECUTIVE COMPENSATION--Summary Compensation Table."
PROPOSAL NO. 1
TO APPROVE THE FORTE COMPUTER EASY, INC.
1996 STOCK OPTION PLAN
At the Special Meeting, the Company will seek shareholder ratification of
the 1996 Stock Option Plan (the "1996 Plan"). The 1996 Plan was adopted by the
Board of Directors on December 19, 1996, subject to shareholder approval. The
Board believes that in order to attract and retain officers, employees and
directors of the highest caliber, provide increased incentive for such persons
to strive to attain the Company's long-term goal of increasing shareholder
value, and to continue to promote the well being of the Company, it is in the
best interests of the Company and its shareholders to provide officers,
directors and employees of the Company, through the granting of stock options,
the opportunity to participate in the appreciation in value of the Company's
Common Stock.
REASON FOR APPROVAL
The grant of stock options pursuant to a plan which has been approved by
shareholders and meets certain conditions is exempt from the "short-swing
profits" liability provisions of Section 16(b) of the Securities and Exchange
Act of 1934, as amended (the "Act"). Section 16(b) provides that upon the
purchase and sale (or sale and purchase) of the Company's Common Stock within
any six month period by a principal officer, director or beneficial owner of
more than 10% of the Company's Common Stock, any "profit" realized by such
person is recoverable by the Company. As a result of the complexities of this
rule, optionees may unwittingly fall within its scope and be forced to disgorge
gains to the Company, thereby frustrating the Company's intent to provide
incentive to officers and employees under the 1996 Plan. Thus, shareholder
approval of the 1996 Plan is sought in order to exempt from the liability
provisions of Section 16(b) the grant of options to officers and directors who
are eligible to participate in the 1996 Plan. In addition, shareholder approval
of the 1996 Plan is necessary in order that incentive stock options granted
under the 1996 Plan will qualify for treatment as such under the Internal
Revenue Code of 1986, as amended (the
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"Code"). Unless shareholder approval is obtained, options granted under the 1996
Plan will have less value and, consequently, will not provide the incentive to
the recipient intended by the Board.
SUMMARY OF THE 1996 PLAN
The following summary of the 1996 Plan does not purport to be complete, and
is subject to and qualified in its entirety by reference to the text of the 1996
Plan, which is attached hereto as Exhibit "1."
ADMINISTRATION. The 1996 Plan shall be administered by the Board of
Directors or, if authorized by the Board of Directors, by the Compensation
Committee of the Company's Board of Directors. The Board of Directors has full
authority, subject to the provisions of the 1996 Plan, to award incentive stock
options and nonstatutory stock options ("Options").
Subject to the provisions of the 1996 Plan, the Board of Directors or the
Committee determines in its discretion, among other things, the persons to whom
from time to time Options may be granted ("Participants"), the number of shares
subject to each Option, exercise prices under the Options, any restrictions or
limitations on such Option including any vesting, exchange, deferral, surrender,
cancellation, acceleration, termination, or forfeiture provisions related to
such Options. The interpretation and construction by the Board of Directors or
the Committee of any provisions of, or the determination of any questions
arising under, the 1996 Plan or any rule or regulation established by the Board
of Directors or the Committee pursuant to the 1996 Plan, shall be final,
conclusive and binding on all persons interested in the 1996 Plan.
SHARES SUBJECT TO THE 1996 PLAN. The 1996 Plan authorizes the Board to
grant options to Directors and employees of the Company to purchase in the
aggregate an amount of shares of Common Stock equal to 10% of the shares of
Common Stock issued and outstanding from time to time, but which amount shall in
no event exceed 10,000,000 shares of Common Stock. In order to prevent the
dilution or enlargement of the rights of the Participants under the 1996 Plan,
the number of shares of Common Stock authorized by the 1996 Plan and the number
of shares subject to outstanding options are subject to adjustment in the event
of any increase or decrease in the number of shares of outstanding Common Stock
resulting from a stock dividend, stock split, combination of shares, merger,
reorganization, consolidation, recapitalization or other change in the corporate
structure affecting the Company's capital stock. If any Option granted under the
1996 Plan is forfeited or terminated, the shares of Common Stock that were
underlying such Option shall again be available for distribution in connection
with Options subsequently granted under the 1996 Plan.
ELIGIBILITY. Subject to the provisions of the 1996 Plan, Options may be
granted to Directors and full-time employees of the Company or its subsidiaries.
EFFECTIVE DATE AND TERM OF 1996 PLAN. If approved by the Company's
shareholders, the 1996 Plan will be deemed effective on December 19, 1996 the
date on which it was adopted by the Board of Directors. No option may be granted
after December 19, 2006. The 1996 Plan will terminate ten (10) years after its
effective date, subject to earlier termination by the Board. No Option may be
granted under the 1996 Plan after the termination date, but Options previously
granted may extend beyond such date.
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NATURE OF OPTIONS. The 1996 Plan provides for the grant of options, which
may be non-qualified options, incentive stock options, or any combination of the
foregoing. In general, options granted under the 1996 Plan are not transferable
and expire ten (10) years after the date of grant. The per share exercise price
of an incentive stock option granted under the 1996 Plan may not be less than
the fair market value of the Common Stock on the date of grant. Incentive stock
options granted to persons who have voting control over 10% or more of the
Company's capital stock are granted at 110% of the fair market value of the
underlying shares on the date of grant and expire five years after the date of
grant.
EXERCISE OF OPTIONS. The 1996 Plan provides the Committee or the Board of
Directors with the discretion to determine when options granted thereunder will
become exercisable. Generally, such options may be exercised after a period of
time specified by the Committee or the Board of Directors at any time prior to
expiration, so long as the optionee remains employed by the Company. No option
granted under the 1996 Plan is transferable by the optionee other than by will
or the laws of descent and distribution, and each option is exercisable during
the lifetime of the optionee only by the optionee. The Board of Directors may,
in its sole discretion, financially assist an optionee in the exercise of
options by offering loans to the optionee or guaranteeing third party loans to
the optionee, the proceeds of which would be used to exercise the options.
AGREEMENTS. Options granted under the 1996 Plan will be evidenced by
agreements consistent with the 1996 Plan in such form as the Board of Directors
or the Committee may prescribe. Neither the 1996 Plan nor agreements thereunder
confer any right to continued employment upon any Participant.
AMENDMENTS TO THE 1996 PLAN. The Board of Directors may at any time, and
from time to time, amend, modify or terminate any of the provisions of the 1996
Plan, but no amendment, modification or termination shall be made which would
impair the rights of a Participant under any agreement theretofore entered into
pursuant to an Option grant, without the Participant's consent.
OUTSTANDING OPTIONS. No options have been issued under the 1996 Plan.
FEDERAL INCOME TAX CONSIDERATIONS
The discussion that follows is a summary, based upon current law, of some
of the significant federal income tax considerations relating to awards under
the 1996 Plan. The following discussion does not address state, local or foreign
tax consequences.
If the Plan is approved by the shareholders, a Participant in the 1996 Plan
will not recognize taxable income upon the grant or exercise of an incentive
stock option except under certain circumstances when the exercise price is paid
with already-owned shares of Common Stock that were acquired through the
previous exercise of an incentive stock option. However, upon the exercise of an
incentive stock option, the excess of the fair market value of the shares
received on the date of exercise over the exercise price of the shares will be
treated as a tax preference item for purposes of the alternative minimum tax. In
order for the exercise of an incentive stock option to qualify for the foregoing
tax treatment, the Participant generally must be an employee of the Company from
the date the incentive stock option is granted through the date three months
before the date of exercise, except in the case of death or disability, where
special rules apply. The Company will not be entitled to any deduction with
respect to the grant or exercise of an incentive stock option.
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If shares acquired upon exercise of an incentive stock option are not
disposed of by the Participant within two years from the date of grant or within
one year after the transfer of such shares to the Participant (the "ISO Holding
Period"), then (i) no amount will be reportable as ordinary income with respect
to such shares by the Participant or recipient and (ii) the Company will not be
allowed a deduction in connection with such incentive stock option or the Common
Stock acquired pursuant to the exercise of the incentive stock option. If a sale
of such Common Stock occurs after the ISO Holding Period has expired, then any
amount recognized in excess of the exercise price will be reportable as a
long-term capital gain, and any amount recognized below the exercise price will
be reportable as a long-term capital loss. The exact amount of tax payable on a
long-term capital gain will depend upon the tax rates in effect at the time of
the sale. The ability of a Participant to utilize a long-term capital loss will
depend upon the Participant's other tax attributes and the statutory limitations
on capital loss deductions not discussed herein. To the extent that alternative
minimum taxable income was recognized on exercise of the incentive stock option,
the basis in the Common Stock acquired may be higher for determining a long-term
capital gain or loss for alternative minimum tax purposes.
A "disqualifying disposition" will result if Common Stock acquired upon the
exercise of an incentive stock option (except in the circumstances of a
decedent's incentive stock option as described below) is sold before the ISO
Holding Period has expired. In such case, at the time of a disqualifying
disposition (except in the case of a Participant subject to Section 16
restrictions of the Exchange Act, as noted below), the Participant will
recognize ordinary income in the amount of the difference between the exercise
price and the lesser of (i) the fair market value on the date of exercise or
(ii) the amount realized on disposition. If the amount realized on the sale is
less than the exercise price, then the Participant will recognize no ordinary
income, and the recognized loss will be reportable as a short-term capital loss.
The Participant will report as a short-term capital gain, as applicable, any
amount recognized in excess of the fair market value on the date of exercise,
and the Company will be allowed a deduction on its federal income tax return in
the year of the disqualifying disposition equal to the ordinary income
recognized by the Participant. To the extent that alternative minimum taxable
income was recognized on exercise of the incentive stock option, the basis in
the Common Stock acquired may be higher for determining a short-term capital
gain or loss for alternative minimum tax purposes.
The general rules discussed above are different if the Participant disposes
of the shares of Common Stock in a disqualifying disposition in which a loss, if
actually sustained, would not be recognized by the Participant. Examples of
these dispositions include gifts or sales to related parties such as members of
the Participant's family and corporations or entities in which the Participant
owns a majority equity interest. In such circumstances, the Participant would
recognize ordinary income equal to the difference between the exercise price of
the Common Stock and the fair market value of the Common Stock on the date of
exercise. The amount of ordinary income would not be limited by the price at
which the Common Stock was actually sold by the Participant.
If the Participant retires or otherwise terminates employment with the
Company, other than by reason of death or permanent and total disability, an
incentive stock option must be exercised within three months of such termination
in order to be eligible for the tax treatment of the incentive stock options
described above, provided the ISO Holding Period requirements are met. If a
Participant terminates employment because of a permanent and total disability,
the incentive stock option will be eligible for such treatment if it is
exercised within one year of the date of termination of employment, provided the
ISO Holding Period requirements are met. In the event of a Participant's death,
the incentive stock option will be eligible for such treatment if exercised by
the Participant's legatees, personal representatives or distributees within one
year from the date
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of death, provided that the death occurred while the Participant was employed,
within three months of the date of termination of employment or within one year
following the date of termination of employment because of permanent and total
disability.
In general, a Participant to whom a nonqualified option is granted will
recognize no taxable income at the time of the grant. Upon exercise of a
nonqualified option, the Participant will recognize ordinary income in an amount
equal to the amount by which the fair market value of the Common Stock on the
date of exercise exceeds the exercise price of the nonqualified option, and the
Company will generally be entitled to a deduction equal to the ordinary income
recognized by the Participant in the year the participant recognizes ordinary
income, subject to the limitations of Section 162(m) of the Code.
For purposes of the "alternative minimum tax" applicable to individuals,
the exercise of an incentive stock option is treated in the same manner as the
exercise of a nonqualified option. Thus, a Participant must, in the year of
option exercise, include the difference between the exercise price and the fair
market value of the stock on the date of exercise in alternative minimum taxable
income. The alternative minimum tax is imposed upon an individual's alternative
minimum taxable income currently, but only to the extent that such tax exceeds
the taxpayer's regular income tax liability for the taxable year.
The Company is required to withhold certain income taxes from Participants
upon exercises of nonqualified options. The Company will be entitled to a
business expense deduction for both financial statement and federal income tax
purposes equal to the ordinary income recognized by the Participant in the year
the Participant recognizes ordinary income from the exercise of nonqualified
options.
In addition to the foregoing federal tax consequences, the exercise,
ultimate sale or other disposition of options by Participants will in most cases
be subject to state income taxation.
VOTE REQUIRED
Assuming a quorum consisting of a majority of the votes entitled to be cast
by the holders of the Common Stock and Preferred Stock, collectively (the
"Votes"), is present, in person or by proxy, at the Special Meeting, the
affirmative vote of the holders of a majority of the Votes present, in person or
by proxy, at the Special Meeting, is required to approve the 1996 Plan.
AAP Holdings, Inc. and Mr. Amedia, who collectively have voting power over
a majority in interest of the Votes, have agreed that they will vote FOR
approval of the 1996 Plan. Accordingly, it is expected that the 1996 Plan will
be approved.
PROPOSAL NO. 2
REINCORPORATION OF THE COMPANY IN DELAWARE
GENERAL
The Company's Board of Directors has approved the reincorporation of the
Company as a Delaware corporation (the "Reincorporation") and a related
Agreement and Plan of Merger (the "Merger Agreement"). The Reincorporation will
be effected by the merger of the Company into
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AAP Merger Corporation ("AAPM"). AAPM is a wholly-owned subsidiary of the
Company incorporated in Delaware whose principal executive office is located at
1350 Albert Street, Youngstown, Ohio 44505 and whose telephone number is (330)
746-3311. AAPM currently has no operations, but after the merger will undertake
the same business as currently conducted by the Company. A copy of the Merger
Agreement is attached as Exhibit "2." Stockholders will be asked to approve the
Reincorporation and the Merger Agreement at the Special Meeting.
If the Merger Agreement is duly authorized and adopted by the requisite
votes of stockholders and is not terminated and abandoned pursuant to the
provisions of the Merger Agreement, a Certificate of Merger shall be filed with
the Secretary of State of Delaware, and Articles of Merger shall be filed with
the Secretary of State of Utah. The merger and Reincorporation shall be
effective immediately upon the aforementioned filings. If approved, the Company
expects that the merger and Reincorporation will become effective on a date as
soon as practicable after the Special Meeting date (the "Effective Date"). On
the Effective Date, the existing stockholders of the Company will become
stockholders of AAPM, and the separate legal existence of the Company will
terminate. However, the Reincorporation will not result in any substantive
change in the Company's business, directors, management, assets, liabilities,
net worth, operations or financial statements or any change in the ownership
interest of any stockholders of the Company. In addition, on the Effective Date
the name of AAPM will be changed to American Architectural Products Corporation
("AAPC"). The proposed merger and Reincorporation may be abandoned, or the
Merger Agreement may be amended (with certain exceptions), either before or
after stockholder approval has been obtained, if, in the opinion of the Board of
Directors, circumstances arise that make such action advisable.
ADOPTION AND APPROVAL OF THE REINCORPORATION AND THE MERGER AGREEMENT WILL
AFFECT CERTAIN RIGHTS OF STOCKHOLDERS. ACCORDINGLY, STOCKHOLDERS ARE URGED TO
READ CAREFULLY THIS ENTIRE INFORMATION STATEMENT AND THE ATTACHMENTS HERETO.
REASONS FOR APPROVAL OF THE MERGER AGREEMENT
The Board of Directors of the Company believes that the Reincorporation is in
the best interest of the Company and its stockholders. For many years, Delaware
has followed a policy of encouraging incorporation in that state. In furtherance
of that policy, Delaware has adopted comprehensive modern and flexible corporate
laws which are periodically updated and revised to meet changing business needs.
As a result, many major corporations have initially chosen Delaware for their
domicile or have subsequently reincorporated in Delaware in a manner similar to
that proposed by the Company. Delaware courts have developed considerable
expertise in dealing with corporate issues and a substantial body of case law
has developed construing Delaware law and establishing public policies with
respect to Delaware corporations. The favorable business corporation laws of
Delaware should benefit the Company by allowing it to conduct its affairs in a
more flexible and efficient manner. Prior to the Reincorporation, the Company's
state of incorporation is Utah. Since neither the Company's principal offices
nor any of the Company's employees are located in Utah, the Company has no
important ties to or presence in Utah that would make incorporation in Utah
convenient for the Company.
In connection with the proposed merger, the shares of the Company's issued
and outstanding Common Stock would be exchanged for 4,860,579 shares of Common
Stock of AAPM, certain shares of the Company's Common Stock issuable to Frank
Amedia would be exchanged for 171,842 shares of Common Stock of AAPM, and the
1,000,000 issued and outstanding shares of
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Preferred Stock would be convertible into 7,548,632 shares of Common Stock of
AAPM. The number of authorized shares of Common Stock would be increased to 100
million. As a result, over 85 million shares of Common Stock of AAPM would be
available for future issuance. This would provide flexibility for any steps the
Company may wish to take in the future relating to possible financing programs,
investment opportunities, acquisitions of other companies, stock dividends and
other corporate purposes. The Company considers it advisable to have such shares
available in order to enable the Company, as the need may arise, to take prompt
advantage of favorable opportunities for acquisitions and to have such shares
available for other corporate purposes without the delay and expense incident to
holding a special meeting of shareholders to increase the authorized capital.
After considering the advantages and disadvantages of the proposed
Reincorporation, including the differences between the Utah Business Corporation
Act ("Utah BCA") and the General Corporation Law of the State of Delaware
("Delaware Code"), the Board of Directors has concluded that it is in the best
interest of the Company and its stockholders to change its domicile from Utah to
Delaware.
CERTAIN CONSEQUENCES OF THE MERGER
Management after the Merger. Upon effectiveness of the Merger, the board of
directors of AAPM will consist of those persons serving on the Board of
Directors of the Company immediately prior to the Effective Date of the Merger.
The directors will continue to hold office as directors of AAPM for the same
term for which they would otherwise serve as directors of the Company and, if
appropriate, will be subject to reelection at the 1997 Annual Meeting of
Stockholders of AAPM. The individuals serving as executive officers of the
Company immediately prior to the Effective Date of the Merger will serve as
executive officers of AAPM upon the effectiveness of the Merger.
Capitalization. The Company's Utah Articles of Incorporation authorizes the
Company to issue 50,000,000 shares of common stock, $.01 par value (the "Common
Stock"), and 20,000,000 shares of preferred stock, $.001 par value (the
"Preferred Stock"). As of December 31, 1996, 48,605,794 shares of Common Stock
were issued and outstanding and 1,000,000 shares of Preferred Stock were issued
and outstanding.
Upon effectiveness of the Merger, the authorized Common Stock of the
Company will be increased to 100,000,000 shares and the authorized number of
shares of Preferred Stock will remain 20,000,000 shares. The relative rights and
limitations of the Common and Preferred Stock will remain unchanged after the
Merger.
Reverse Stock Split. The Company has proposed a 10 for 1 reverse stock
split in connection with the Merger to ensure that an adequate supply of
authorized, unissued shares is available for general corporate needs. If
approved, the authorized shares of Common Stock will be available for issue from
time to time for such purposes and consideration as the Board of Directors may
approve and no further vote of stockholders of the Company will be required,
except as provided under Delaware law or the rules of any securities exchange on
which the Common Stock of the Company is listed. The availability of additional
shares for issue after the reverse stock split, without the delay and expense of
obtaining the approval of stockholders at a special meeting, will afford the
Company greater flexibility in acting upon proposed transactions. The Board of
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Directors believes that this is a convenient time to increase the availability
of shares of Common Stock for issuance.
The Company is committed to issue 1,718,422 shares of Common Stock to Mr.
Amedia at such time as the Company has a sufficient number of shares of
authorized, unreserved and unissued Common Stock and those shares that
previously have been reserved for issuance as described above. Issuance by the
Company of additional shares of Common Stock may have a dilutive effect on
earnings per share and on the equity and voting power of existing stockholders.
In addition, the increase in the authorized Common Stock will result in
stockholders having less control over future issuance of Common Stock by the
Company.
Common Stock Options. Unexpired, unexercised outstanding options to
purchase Common Stock of the Company will be deemed to be valid options issued
by AAPM to purchase shares of Common Stock of AAPM on the same terms and
conditions as presently provided, adjusted to reflect the reverse stock split.
The Company's existing Stock Option Plan will not be changed in any material
respect by the Merger.
Indebtedness of the Company. All indebtedness of the Company outstanding at
the Effective Date of the Merger will be assumed by AAPM in connection with the
Merger. To the Company's knowledge, no indebtedness of the Company will be
accelerated as a result of the proposed transaction.
Stock Certificates. Stock certificates of the Company will be deemed to
represent a different number of shares of AAPM following the merger. As
discussed above, one share of the Company's stock will represent 1/10 of a share
of AAPM Common Stock and one share of the Company's Preferred Stock will be
convertible into 7.5486324 shares of AAPM Common Stock upon the Effective Date.
THEREFORE, IT WILL BE NECESSARY FOR STOCKHOLDERS TO EXCHANGE THEIR COMPANY STOCK
CERTIFICATES FOR AAPM STOCK CERTIFICATES.
Regulatory Requirements. To the best of its knowledge, the Company is not
required to comply with any federal or state regulatory requirements other than
the filing of Articles of Merger and a Certificate of Merger with the Utah
Secretary of State and the Delaware Secretary of State, respectively, or to seek
any federal or state regulatory approvals in connection with the Merger.
Trading of AAPM Common Stock. The Company's Common Stock is currently quoted on
the National Association of Securities Dealers Automated Quotation System OTC
Electronic Bulletin Board ("NASDAQ-BB") under the symbol "CEAS". The closing
sale price for the Company's Common Stock on October 24, 1996, was $.4375 per
share, and the best offer and best bid prices were $.46875 and $.40625,
respectively. It is anticipated that AAPC Common Stock will be quoted on
NASDAQ-BB under the market symbol CEAS, without interruption, and that NASDAQ-BB
will consider the delivery of existing stock certificates of the Company as
constituting "good delivery" of shares of AAPM in transactions subsequent to the
Merger. The Company intends to apply to list the Common Stock on the Nasdaq
National Market or the Nasdaq Small Cap Market under the symbol "AAPC." There is
no assurance that the Company will meet the applicable listing requirements.
Federal Income Tax Consequences. It is anticipated that the Merger will be
treated as a tax-free reorganization under the Internal Revenue Code of 1986,
as amended. Accordingly, no gain
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or loss will be recognized by holders of Common Stock of the Company or by the
Company or AAPM as a result of the consummation of the Merger. Each former
holder of Common Stock of the Company will have the same tax basis in AAPM
Common Stock received pursuant to the Merger as he or she has in Common Stock of
the Company held by him or her at the Effective Date of the Merger, as adjusted
to reflect the reverse stock split. Each stockholder's holding period with
respect to such AAPM Common Stock will include the period during which such
stockholder held the corresponding Common Stock of the Company, provided the
latter is held as a capital asset at the time of consummation of the Merger. THE
FOREGOING IS ONLY A SUMMARY OF THE FEDERAL INCOME TAX CONSEQUENCES AND IS NOT
TAX ADVICE. NO RULING FROM THE INTERNAL REVENUE SERVICE AND NO OPINION OF
COUNSEL WITH RESPECT TO THE TAX CONSEQUENCES OF THE MERGER HAVE BEEN OR WILL BE
OBTAINED BY THE COMPANY. STOCKHOLDERS SHOULD CONSULT THEIR OWN TAX ADVISERS
REGARDING THE TAX CONSEQUENCES OF THE MERGER.
POSSIBLE NEGATIVE CONSEQUENCES OF THE REINCORPORATION
Notwithstanding the belief of the Board of Directors as to the potential
benefits to stockholders of the Reincorporation and the Merger Agreement,
stockholders should realize that there may be negative consequences of the
Reincorporation and the Merger Agreement. A negative consequence may be payment
of higher franchise taxes charged by Delaware, as compared to the lower
franchise taxes the Company would pay in Utah. In addition, as previously
discussed, the increase in available authorized Common Stock resulting from the
Merger Agreement and reverse stock split will allow the Company to issue a
greater amount of shares, resulting in stockholders having less control over
future stock issuances. Issuance of additional shares of Common Stock may have a
dilutive effect on earnings per share and on the equity and voting power of
existing shareholders.
RIGHTS OF STOCKHOLDERS TO DISSENT
Since the proposed Reincorporation will be conducted through a merger of a
parent corporation (the Company) into its wholly-owned subsidiary (AAPM), under
Utah law, stockholders of the Company will have the right under Part 13 of the
Utah BCA to dissent from the Reincorporation and receive the fair market value
of their shares in cash.
Under Utah law, a holder of the Company's Common Stock or Preferred Stock
who desires to dissent from the proposed merger and receive cash payment for the
fair value of his or her shares must give the Company, prior to the vote on
Proposal No. 2 at the Special Meeting, written notice of his or her intent to
demand payment for his or her shares if the proposed action is effectuated.
Within 10 days after receiving the required stockholder approval for the Merger
Agreement, the Company shall send written notice of the approval to those
stockholders who dissented and did not vote in favor of the Reincorporation and
the Merger Agreement (Proposal No. 2).
Stockholders who are given a dissenter's notice and wish to assert
dissenters' rights must, within 30 days after the date of the dissenters' notice
and in accordance with the terms of such notice, cause the Company to receive a
payment demand and submit the certificates representing their shares to the
Company or the Company's transfer agent as directed in the dissenters' notice.
Voting against such proposal, either by proxy or at the meeting, does not
fulfill the statutory requirements with respect to notice of his or her intent
to demand payment and the required demand for payment. A vote, in person or by
proxy, in favor of the proposal to approve the
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Reincorporation and the Merger Agreement (Proposal No. 2) constitutes a waiver
of appraisal rights. A stockholder giving such notice and making such demand,
who did not vote for the proposal to approve the Reincorporation and the Merger
Agreement, shall be entitled, if and when the merger is effected, to be paid by
the Company the fair value of his or her shares.
Upon the later of the Effective Date and receipt by the Company of each
payment demand, the Company shall pay the fair value of the dissenter's shares,
plus interest, to each dissenter who has timely deposited his or her
certificates. If the dissenter is dissatisfied with the payment, the dissenter
may, within 30 days after the Company made payment for his or her shares, notify
the Company in writing of his or her own estimate of the fair value of his or
her shares and demand payment of the estimated amount, plus interest, less the
payment already made. The dissenter may also deliver such notice to the Company
if the Company fails to make payment within 60 days after the deadline to
receive payments demands. If a demand for payment remains unresolved, the
Company must commence a proceeding within 60 days after receiving the
dissenter's payment demand to petition the court to determine the fair value of
the shares, including interest. If the Company does not commence such a
proceeding within the 60 day period, it must pay each dissenter whose demand
remains unresolved the amount demanded.
The above summary with respect to the rights of the Company and the
stockholders to object and demand payment for their shares does not purport to
be complete and is qualified in its entirety by reference to the provisions of
Part 13 of the Utah BCA, a copy of which is attached hereto as Exhibit "3."
CERTAIN SIGNIFICANT DIFFERENCES BETWEEN THE CORPORATION LAWS OF UTAH AND
DELAWARE
Although it is impractical to note all of the differences between the
corporation statutes of Utah and Delaware, the most significant differences in
the judgment of the management of the Company are summarized below. The summary
is not intended to be complete and reference should be made to the Utah BCA and
the Delaware Code.
Appraisal Rights. Under Utah law, dissenting stockholders are entitled to
appraisal rights in connection with the lease, sale, exchange, transfer or other
disposition of all or substantially all of the assets of a corporation and in
connection with certain amendments to the corporation's articles of
incorporation. Stockholders of a Utah corporation being merged into or
consolidated with another corporation are also entitled to appraisal rights. In
addition, stockholders of a acquiring corporation are entitled to appraisal
rights in any merger, combination or other transaction in which such
stockholders are entitled to voting rights. Under Delaware law, appraisal rights
are available only in connection with certain mergers or consolidations, unless
otherwise provided in the certificate of incorporation.
Dividends. Utah law prohibits the distribution of dividends if, after a
distribution is given effect, the corporation would not be able to pay its debts
as they become due in the usual course of business or if the corporation's total
assets would be less than the sum of its total liabilities plus the amount that
would be needed, if the corporation were to be dissolved at the time of the
distribution, to satisfy the preferential rights upon dissolution of
stockholders whose preferential rights are superior to those receiving the
distribution. Like Utah, Delaware law prohibits the distribution of dividends if
the capital of the corporation shall have been diminished by depreciation in the
value of its property, or by losses or otherwise, to an amount less than the
aggregate amount of capital represented by the issued and outstanding stock of
all classes having a preference upon the distribution of assets.
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Neither the Company nor AAPM has any current plans to pay dividends or make
any other distributions on its capital stock. Nevertheless, the difference
between the Utah BCA and the Delaware Code with respect to amounts available for
dividends or other distributions could conceivably affect future dividends or
other distributions, if they are declared.
Right to Call Special Meetings of Stockholders. Under Utah law, the holders
of at least 10% of the outstanding shares of a corporation have the authority to
call special meetings of stockholders. Delaware law does not require that
stockholders be given the right to call special meetings. The Delaware Bylaws
provide, however, that the holders of at least 10% of the outstanding shares of
the Company have the authority to call special meetings of stockholders.
Provisions Affecting Business Combinations/Corporate Control. Delaware has
enacted a business combination statute that is contained in Section 203 of the
Delaware Code. Utah has no comparable statute. Section 203 provides that any
person who acquires 15% or more of a corporation's voting stock (an "Interested
Stockholder") many not engage in a wide range of "business combinations" with
the corporation for a period of three years unless certain approvals are
obtained from the Board of Directors or stockholders. A "business combination"
is defined to include: (i) mergers and sales or other dispositions of ten
percent or more of the assets of a corporation with or to an interested
stockholder; (ii) certain transactions resulting in the issuance or transfer to
the interested stockholder of any stock of the corporation or its subsidiaries;
(iii) certain transactions which would result in increasing the proportionate
share of the stock of the corporation or its subsidiaries owned by the
interested stockholder; and (iv) receipt by the interested stockholder of the
benefit (except proportionately as a stockholder) of any loans, advances,
guarantees, pledges or other financial benefits.
These restrictions do not apply under certain circumstances if the
corporation's certificate of incorporation or bylaws contain a provision
expressly electing not to be governed by Section 203. The Delaware Certificate
and Delaware Bylaws do not contain any provision electing not to be governed by
Section 203 of the Delaware Code. The Board of Directors of the Company believes
that the provisions of Section 203 will help ensure that a change in control of
the Company does not occur without the consent of the Board of Directors or the
stockholders, or both, and will encourage any person who seeks to acquire
control of the Company to do so by a negotiated transaction. Because Section 203
of the Delaware Code has not been extensively applied by the courts of Delaware,
uncertainties exist concerning the application of this statute to particular
situations. Management is not aware of any attempt to acquire the Company by a
third party and does not have any current plans to propose any changes to the
charter documents or corporate structure of AAPM that would have an
anti-takeover purpose or effect.
In addition, the Utah Code generally disallows the exercise of voting
rights with respect to "control shares" of an "issuing corporation" held by an
"acquiring person," unless such voting rights are conferred by a majority vote
of the disinterested stockholders. "Control shares" are the voting shares of an
issuing corporation acquired in connection with the acquisition of a
"controlling interest." "Controlling interest" is defined in terms of threshold
levels of voting share ownership, which thresholds, whenever each may be
crossed, trigger application of the voting bar with respect to the shares newly
acquired. Delaware does not have a similar control shares statute.
Indemnification of Officers and Directors and Advancement of Expenses. Utah
and Delaware have similar provisions regarding indemnification by a corporation
of its officers, directors, employees and agents for claims against such persons
as a result of their position.
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Limitation on Personal Liability of Directors. Delaware corporations are
permitted to adopt charter provisions limiting, or even eliminating, the
liability of a director of a company and its stockholders for monetary damages
for breach of fiduciary duty as a director, provided that such liability does
not arise from certain proscribed conduct, including breach of the duty of
loyalty, acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law or liability to the corporation based
on unlawful dividends or distributions or improper personal benefit. The Utah
BCA provision permitting the adoption of provisions in the articles of
incorporation limiting personal liability is similar to Delaware's, but differs
in one major respect. While the Delaware provision does not permit limitation of
liability for breach of duty of loyalty, the Utah counterpart does not contain
this exception.
CERTAIN DIFFERENCES BETWEEN CHARTER AND BYLAWS OF THE COMPANY AND AAPM
Upon completion of the Merger, the Delaware Certificate and the Delaware
Bylaws will become the charter and bylaws of the surviving corporation. The
Delaware Certificate will contain provisions relating to indemnification of
directors and limitation of liability that reflect current Delaware law, whereas
the Utah Articles contain no similar provisions relating to Utah law. The
Delaware Certificate will contain no provision concerning the voidability of
interested transactions, whereas the Utah Articles provide that interested
transactions shall not be void or voidable if the relationship is disclosed to
the Board of Directors or the stockholders or if the transaction is fair and
reasonable to the Company. The Delaware Certificate, unlike the Utah Articles,
contains a provision limiting the personal liability of directors.
In order for the Company's stockholders to call a special meeting of
stockholders, the Utah Bylaws require holders of at least 50% of the outstanding
shares to request such a meeting, whereas the Delaware Bylaws only require
holders of at least 10% of the outstanding shares to request the same. To act
without a meeting, the Utah Bylaws require the unanimous written consent to the
action to be taken by the Board of Directors or the stockholders, as applicable.
The Delaware Bylaws also require the unanimous consent of the directors to act
without a meeting of the Board of Directors, but in the case of action by the
stockholders without a meeting, the Delaware Bylaws require only the written
consent of the holders of outstanding stock having not less than the number of
votes that would have been necessary to authorize such action at a meeting at
which all shares entitled to vote were present and voted. The Delaware Bylaws
provide for the removal of directors with or without cause in accordance with
Delaware law. The Utah Bylaws do not provide for the removal of directors;
however, Utah law permits the removal of directors with or without cause by the
stockholders. Unlike the Utah Bylaws, which authorize only the Board of
Directors to amend the Bylaws, the Delaware Bylaws provide that they may be
amended by the holders of a majority of outstanding shares.
The Delaware Certificate of Incorporation and Delaware Bylaws are attached
hereto as Exhibits "4" and "5", respectively. Copies of the Utah Articles and
Utah Bylaws are available for inspection by stockholders upon request to the
Secretary of the Company.
ABANDONMENT OR AMENDMENT OF THE REINCORPORATION
Article IV of the Merger Agreement permits the boards of directors of the
Company and AAPM to terminate the merger by mutual consent, whether it be before
or after approval of the Reincorporation by the Company's stockholders. In
addition, the Company and AAPM may by written agreement amend, modify or
supplement any provision of the Merger Agreement, provided that an amendment
made subsequent to approval of the Reincorporation by the Company's
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stockholders shall not, without the subsequent approval of the Company's
stockholders, (a) alter or change the amount or kind of securities or rights to
be received for or on conversion of all or any of the shares of capital stock of
the Company or AAPM, (b) alter or change any material term of the Certificate of
Incorporation of AAPM, or (c) alter or change any of the terms and conditions of
the Merger Agreement if such alteration or change would adversely affect the
stockholders of the Company or AAPM. The Company is not aware of, and does not
contemplate, any circumstances that would cause the Company to abandon or amend
the terms of the proposed Reincorporation.
Approval of Proposal No. 2 requires the affirmative vote of a majority of
the outstanding Votes of the Company. AAP Holdings, Inc. and Mr. Amedia, who
collectively have voting power over a majority in interest of the Votes, have
agreed that they will vote FOR approval of the Reincorporation and the Agreement
and Plan of Merger. Accordingly, it is expected that the Reincorporation and the
Agreement and Plan of Merger will be approved.
OTHER MATTERS
INDEPENDENT AUDITORS
Effective as of February 17, 1997, the Company engaged BDO Seidman LLP as
the Company's independent auditors. Representatives of that firm are expected to
be present at the Special Meeting with the opportunity to make a statement if
they desire to do so and to be available to respond to appropriate questions.
Semple & Cooper, P.L.C. had previously served as the Company's independent
auditors.
OTHER BUSINESS
The Special Meeting is being held for the purposes set forth in the Notice
that accompanies this Information Statement. The Board of Directors is not
presently aware of any business to be transacted at the Special Meeting other
than as set forth in such Notice.
BY ORDER OF THE BOARD OF DIRECTORS
David McKelvey, Secretary
Youngstown, Ohio
February 21, 1997
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EXHIBIT 1
FORTE COMPUTER EASY, INC.
1996 STOCK OPTION PLAN
-------------------------
1. Purposes of the Plan. The purposes of this Stock Option Plan are
to attract and retain the best available personnel for positions of substantial
responsibility to provide successful management of the Company's business, to
provide additional incentive to the Employees of the Company, and to promote the
success of the Company's business through the grant of options to purchase
shares of the Company's Common Stock.
Options granted hereunder may be either "Incentive Stock
Options," as defined in Section 422 of the Code, or "Non-Statutory Stock
Options," at the discretion of the Board and as reflected in the terms of the
written option agreement.
2. Definitions. As used herein, the following definitions shall
apply:
(a) "Board" shall mean the Board of Directors of the Company or
the Committee, if one has been appointed.
(b) "Code" shall mean the Internal Revenue Code of 1986, as
amended, and the rules and regulations promulgated thereunder.
(c) "Common Stock" shall mean the $0.01 par value common stock
of the Company described in the Company's Articles of Incorporation,
as amended.
(d) "Company" shall mean Forte Computer Easy, Inc., a Utah
corporation, and shall include any parent or subsidiary corporation
of the Company as defined in Sections 424(e) and (f), respectively,
of the Code.
(e) "Committee" shall mean the Committee appointed by the Board
in accordance with paragraph (a) of Section 4 of the Plan, if one is
appointed.
(f) "Director" shall mean a member of the Board.
(g) "Employee" shall mean any person, including officers and
directors, employed by the Company. The payment of a director's fee
by the Company shall not be sufficient to constitute "employment" by
the Company.
(h) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
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(i) "Fair Market Value" shall mean, with respect to the date a
given Option is granted or exercised, the value of the Common Stock
determined by the Board in such manner as it may deem equitable for
Plan purposes but, in the case of an Incentive Stock Option, no less
than is required by applicable laws or regulations; provided,
however, that where there is a public market for the Common Stock,
the Fair Market Value per Share shall be the mean of the bid and
asked prices of the Common Stock on the date of grant, as reported
in The Wall Street Journal (or, if not so reported, as otherwise
reported by the National Association of Securities Dealers Automated
Quotation System) or, in the event the Common Stock is listed on the
New York Stock Exchange, the American Stock Exchange or The Nasdaq
National Market, the Fair Market Value per Share shall be the
closing price on such exchange on the date of grant of the Option,
as reported in The Wall Street Journal.
(j) "Incentive Stock Option" shall mean an Option which is
intended to qualify as an incentive stock option within the meaning
of Section 422 of the Code.
(k) "Non-Statutory Option" shall mean all Options which are not
Incentive Stock Options.
(l) "Option" shall mean a stock option granted under the Plan.
(m) "Optioned Stock" shall mean the Common Stock subject to an
Option.
(n) "Optionee" shall mean an Employee or Director of the Company
who has been granted one or more Options.
(o) "Parent" shall mean a "parent corporation," whether now or
hereafter existing, as defined in Section 424(e) of the Code.
(p) "Plan" shall mean this Stock Option Plan.
(q) "Share" shall mean a share of the Common Stock, as adjusted
in accordance with Section 11 of the Plan.
(r) "Subsidiary" shall mean a "subsidiary corporation," whether
now or hereafter existing, as defined in Section 424(f) of the Code.
(s) "Tax Date" shall mean the date an Optionee is required to
pay the Company an amount with respect to tax withholding
obligations in connection with the exercise of an Option.
3. Common Stock Subject to the Plan. Subject to the provisions of
Section 11 of the Plan, the maximum aggregate number of Shares which may be
optioned and sold under the Plan shall be equal to 10% of the Shares of Common
Stock issued and outstanding from time
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to time, but which maximum aggregate number of Shares which may be optioned and
sold under the Plan shall in no event exceed 10,000,000 shares of Common Stock.
The Shares which may be optioned and sold under the Plan may be authorized, but
unissued, or previously issued Shares acquired or to be acquired by the Company
and held in treasury.
If an Option should expire or become unexercisable for any
reason without having been exercised in full, the unpurchased Shares covered by
such Option shall, unless the Plan shall have been terminated, be available for
future grants of Options.
4. Administration of the Plan.
(a) Procedure.
(i) The Board shall administer the Plan; provided,
however, that the Board may appoint a Committee consisting solely of two (2) or
more "Non-Employee Directors" to administer the Plan on behalf of the Board, in
accordance with Rule 16b-3 under the Exchange Act.
(ii) Once appointed, the Committee shall continue to
serve until otherwise directed by the Board. From time to time the Board may
increase the size of the Committee and appoint additional members thereof,
remove members (with or without cause), and appoint new members in substitution
therefor or fill vacancies however caused; provided, however, that at no time
may any person serve on the Committee if that person's membership would cause
the Committee not to satisfy the requirements of Rule 16b-3 under the Exchange
Act.
Any reference herein to the Board shall, where
appropriate, encompass a Committee appointed to administer the Plan in
accordance with this Section 4.
(b) Powers of the Board. Subject to the provisions of the
Plan, the Board shall have the authority, in its discretion: (i) to grant
Incentive Stock Options, in accordance with Section 422 of the Code, and to
grant Non-Statutory Stock Options; (ii) to determine, upon review of relevant
information and in accordance with Section 2(i) of the Plan, the Fair Market
Value of the Common Stock; (iii) to determine the exercise price per Share of
Options to be granted, which exercise price shall be determined in accordance
with Section 8(a) of the Plan; (iv) to determine the Directors and Employees to
whom, and the time or times at which, Options shall be granted and the number of
Shares to be represented by each Option; (v) to interpret the Plan; (vi) to
prescribe, amend and rescind rules and regulations relating to the Plan; (vii)
to determine the terms and provisions of each Option granted (which need not be
identical) and, with the consent of the Optionee thereof, modify or amend each
Option; (viii) to accelerate or defer (with the consent of the Optionee) the
exercise date of any Option; (ix) to authorize any person to execute on behalf
of the Company any instrument required to effectuate the grant of an Option
previously granted by the Board; (x) to accept or reject the election made by an
Optionee pursuant to Section 17 of the Plan; and (xi) to make all other
determinations deemed necessary or advisable for the administration of the Plan.
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(c) Effect of Board's Decision. All decisions, determinations
and interpretations of the Board shall be final and binding on all
Optionees and any other holders of any Options granted under the
Plan.
5. Eligibility.
(a) Consistent with the Plan's purposes, Options may be granted
only to Directors and key Employees of the Company as determined by the Board.
An Optionee who has been granted an Option may, if he is otherwise eligible, be
granted an additional Option or Options. Incentive Stock Options may be granted
only to those Employees who meet the requirements applicable under Section 422
of the Code.
(b) With respect to Incentive Stock Options granted under the
Plan, the aggregate fair market value (determined at the time the Incentive
Stock Option is granted) of the Common Stock with respect to which Incentive
Stock Options are exercisable for the first time by the Employee during any
calendar year (under all plans of the Company and its parent and subsidiary
corporations) shall not exceed One Hundred Thousand Dollars ($100,000).
The Plan shall not confer upon any Optionee any right with
respect to continuation of employment with the Company, nor shall it interfere
in any way with his right or the Company's right to terminate his employment at
any time.
6. Board Approval and Effective Date. The Plan shall take effect on
December 19, 1996, the date on which the Board approved the Plan. No Option may
be granted after December 19, 2006 (ten (10) years from the effective date of
the Plan); provided, however, that the Plan and all outstanding Options shall
remain in effect until such Options have expired or until such Options are
canceled.
7. Term of Option. Unless otherwise provided in the Stock Option
Agreement, the term of each Option shall be ten (10) years from the date of
grant thereof. In no case shall the term of any Incentive Stock Option exceed
ten (10) years from the date of grant thereof. Notwithstanding the above, in the
case of an Incentive Stock Option granted to an Employee who, at the time the
Incentive Stock Option is granted, owns ten percent (10%) or more of the Common
Stock as such amount is calculated under Section 422(b)(6) of the Code ("Ten
Percent Shareholder"), the term of the Incentive Stock Option shall be five (5)
years from the date of grant thereof or such shorter time as may be provided in
the Stock Option Agreement.
8. Exercise Price and Payment.
(a) Exercise Price. The per Share exercise price for the Shares
to be issued pursuant to exercise of an Option shall be determined by the Board,
but in the case of an Incentive Stock Option shall be no less than one hundred
percent (100%) of the Fair Market Value per share on the date of grant;
provided, further, that in the case of an Incentive Stock Option granted to an
Employee who, at the time of the grant of such Incentive Stock Option, is a Ten
Percent Shareholder, the per Share exercise price shall be no less than one
hundred ten percent (110%) of the Fair Market Value per Share on the date of
grant.
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(b) Payment. The price of an exercised Option and any taxes
attributable to the delivery of Common Stock under the Plan, or portion thereof,
shall be paid:
(i) In United States dollars in cash or by check, bank draft
or money order payable to the order of the Company; or
(ii) At the discretion of the Board, through the delivery of
shares of Common Stock, with an aggregate Fair Market Value, equal
to the option price; or
(iii) By a combination of (i) and (ii) above; or
(iv) In the manner provided in subsection (c) below.
The Board shall determine acceptable methods for tendering
Common Stock as payment upon exercise of an Option and may impose such
limitations and prohibitions on the use of Common Stock to exercise an Option as
it deems appropriate. With respect to Non-Statutory Options, at the election of
the Optionee pursuant to Section 16, the Company may satisfy its withholding
obligations by retaining such number of shares of Common Stock subject to the
exercised Option which have an aggregate Fair Market Value on the exercise date
equal to the Company's aggregate federal, state, local and foreign tax
withholding and FICA and FUTA obligations with respect to income generated by
the exercise of the Option by Optionee.
(c) Financial Assistance to Optionees. The Board may assist
Optionees in paying the exercise price of Options granted under this
Plan in the following manner:
(i) The extension of a loan to the Optionee by the
Company; or
(ii) A guaranty by the Company of a loan obtained by the
Optionee from a third party.
The terms of any loans, installment payments or guarantees,
including the interest rate and terms of repayment, and collateral requirements,
if any, shall be determined by the Board, in its sole discretion. Subject to
applicable margin requirements, any loans, installment payments or guarantees
authorized by the Board pursuant to the Plan may be granted without security,
but the maximum credit available shall not exceed the exercise price for the
Shares for which the Option is to be exercised, plus any federal and state
income tax liability incurred in connection with the exercise of the Option.
9. Exercise of Option.
(a) Procedure for Exercise; Rights as a Shareholder. Any Option
granted hereunder shall be exercisable at such times and under such conditions
as determined by the Board, including performance criteria with respect to the
Company and/or the Optionee, and as shall be permissible under the terms of the
Plan. Unless otherwise determined by the
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Board at the time of grant, an Option may be exercised in whole or in part. An
Option may not be exercised for a fraction of a Share.
An Option shall be deemed to be exercised when written notice of
such exercise has been given to the Company in accordance with the terms of the
Option by the person entitled to exercise the Option and full payment for the
Shares with respect to which the Option is exercised has been received by the
Company. Full payment may, as authorized by the Board, consist of any
consideration and method of payment allowable under Section 7(b) of the Plan.
Until the issuance (as evidenced by the appropriate entry on the books of the
Company or of a duly authorized transfer agent of the Company) of the stock
certificate evidencing such Shares, no right to vote or receive dividends or any
other rights as a shareholder shall exist with respect to the Optioned Stock,
notwithstanding the exercise of the Option. No adjustment will be made for a
dividend or other right for which the record date is prior to the date the stock
certificate is issued, except as provided in Section 10 of the Plan.
Exercise of an Option in any manner shall result in a decrease
in the number of Shares which thereafter may be available, both for purposes of
the Plan and for sale under the Option, by the number of Shares as to which the
Option is exercised.
(b) Termination of Status as an Employee. Unless otherwise
provided in a Stock Option Agreement relating to an Option that is not an
Incentive Stock Option, if an Employee's employment by the Company is
terminated, except if such termination is voluntary or occurs due to retirement
with the consent of the Board, death or disability, then the Option, to the
extent not exercised, shall cease on the date on which Employee's employment by
the Company is terminated. If an Employee's termination is voluntary or occurs
due to retirement with the consent of the Board, then the Employee may, but only
within thirty (30) days (or such other period of time not exceeding three (3)
months as is determined by the Board) after the date he ceases to be an Employee
of the Company, exercise his Option to the extent that he was entitled to
exercise it at the date of such termination. To the extent that he was not
entitled to exercise the Option at the date of such termination, or if he does
not exercise such Option (which he was entitled to exercise) within the time
specified herein, the Option shall terminate.
(c) Disability. Unless otherwise provided in an Option Agreement
relating to an Option that is not an Incentive Stock Option, notwithstanding the
provisions of Section 8(b) above, in the event an Employee is unable to continue
his employment with the Company as a result of his permanent and total
disability (as defined in Section 22(e)(3) of the Code), he may, but only within
three (3) months (or such other period of time not exceeding twelve (12) months
as it is determined by the Board) from the date of termination, exercise his
Option to the extent he was entitled to exercise it at the date of such
termination. To the extent that he was not entitled to exercise the Option at
the date of termination, or if he does not exercise such Option (which he was
entitled to exercise) within the time specified herein, the Option shall
terminate.
(d) Death of Optionee. Unless otherwise provided in an Option
Agreement relating to an Option, if Optionee dies during the term of the Option
and is at the time of his death an Employee of the Company who shall have been
in continuous status as an Employee since the date of grant of the Option, the
Option may be exercised, at any time within
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one (1) year following the date of death (or such other period of time as is
determined by the Board), by the Optionee's estate or by a person who acquired
the right to exercise the Option by bequest or inheritance, but only to the
extent that Optionee was entitled to exercise the Option on the date of death.
To the extent that Optionee was not entitled to exercise the Option on the date
of death, or if the Optionee's estate, or person who acquired the right to
exercise the Option by bequest or inheritance, does not exercise such Option
(which he was entitled to exercise) within the time specified herein, the Option
shall terminate.
10. Non-transferability of Options. An Option may not be sold,
pledged, assigned, hypothecated, transferred, or disposed of in any manner other
than by will or by the laws of descent or distribution, or pursuant to a
"qualified domestic relations order" under the Code and the Employee Retirement
Income Security Act of 1974, as amended, and may be exercised, during the
lifetime of the Optionee, only by the Optionee.
11. Adjustments upon Changes in Capitalization or Merger. Subject to
any required action by the shareholders of the Company, the number of Shares
covered by each outstanding Option and the price per Share covered by each such
outstanding Option shall be proportionately adjusted for any increase or
decrease in the number of issued Shares resulting from a stock split, reverse
stock split, stock dividend, combination or reclassification of the Common
Stock, or any other increase or decrease in the number of issued shares of
Common Stock effected without receipt of consideration by the Company; provided,
however, that conversion of any convertible securities of the Company shall not
be deemed to have been "effected without receipt of consideration." Such
adjustment shall be made by the Board, whose determination in that respect shall
be final, binding and conclusive. However, the number of Shares which have been
authorized for issuance under the Plan but as to which no Options have yet been
granted or which have been returned to the Plan upon cancellation or expiration
of an Option shall not be adjusted for any increase or decrease in the number of
issued shares resulting from any of the foregoing actions. Except as expressly
provided herein, no issuance by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, shall affect, and no
adjustment by reason thereof, shall be made with respect to the number or price
of Shares subject to an Option.
In the event of the proposed dissolution or liquidation of the
Company, the Option will terminate immediately prior to the consummation of such
proposed action, unless otherwise provided by the Board. The Board may, in the
exercise of its sole discretion in such instances, declare that any Option shall
terminate as of a date fixed by the Board and give each Optionee the right to
exercise his Option as to all or any part of the Optioned Stock, including
Shares as to which the Option would not otherwise be exercisable. In the event
of a proposed sale of all or substantially all of the assets of the Company, or
the merger of the Company with or into another corporation, the Option shall be
assumed or an equivalent option shall be substituted by such successor
corporation or a parent or subsidiary of such successor corporation, unless the
Board determines, in the exercise of its sole discretion and in lieu of such
assumption or substitution, that the Optionee shall have the right to exercise
the Option as to all of the Optioned Stock, including Shares as to which the
Option would not otherwise be exercisable. If the Board makes an Option fully
exercisable in lieu of assumption or substitution in the event of a merger or
sale of assets, the Board shall notify the Optionee that the Option shall be
fully exercisable for a period of thirty (30) days from the date of such notice
(but not
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later than the expiration of the term of the Option under the Option Agreement),
and the Option will terminate upon the expiration of such period.
12. Time of Granting Options. The date of grant of an Option shall,
for all purposes, be the date on which the Board makes the determination
granting such Option. Notice of the determination shall be given to each
Employee to whom an Option is so granted within a reasonable time after the date
of such grant.
13. Amendment and Termination of the Plan.
(a) Amendment and Termination. The Board may amend or terminate
the Plan from time to time in such respects as the Board may deem advisable;
provided, however, that the following revisions or amendments shall require
approval of the holders of a majority of the outstanding Shares of the Company
entitled to vote:
(i) Any increase in the number of Shares subject to the
Plan, other than in connection with an adjustment under Section 11 of the Plan;
(ii) Any change in the designation of the class of
employees eligible to be granted Options; or
(iii) If the Company has a class of equity security
registered under Section 12 of the Exchange Act at the time of such revision or
amendment, any material increase in the benefits accruing to participants under
the Plan.
(b) Effect of Amendment or Termination. Any such amendment or
termination of the Plan shall not affect Options already granted and such
Options shall remain in full force and effect as if this Plan had not been
amended or terminated, unless mutually agreed otherwise between the Optionee and
the Board, which agreement must be in writing and signed by the Optionee and the
Company.
14. Conditions Upon Issuance of Shares. Shares shall not be issued
pursuant to the exercise of an Option unless the exercise of such Option and the
issuance and delivery of such Shares pursuant thereto shall comply with all
relevant provisions of law, including, without limitation, the Securities Act of
1933, as amended, the Exchange Act, the rules and regulations promulgated
thereunder, and the requirements of any stock exchange upon which the Shares may
then be listed, and shall be further subject to the approval of counsel for the
Company with respect to such compliance.
As a condition to the exercise of an Option, the Company may
require the person exercising such Option to represent and warrant at the time
of any such exercise that the Shares are being purchased only for investment and
without any present intention to sell or distribute such Shares if, in the
opinion of counsel for the Company, such a representation is required by any of
the aforementioned relevant provisions of law.
In the case of an Incentive Stock Option, any Optionee who
disposes of Shares of Common Stock acquired on the exercise of an Option by sale
or exchange (a) either
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within two (2) years after the date of the grant of the Option under which the
Common Stock was acquired or (b) within one (1) year after the acquisition of
such Shares of Common Stock shall notify the Company of such disposition and of
the amount realized upon such disposition.
15. Reservation of Shares. The Company, during the term of this
Plan, will at all times reserve and keep available such number of Shares as
shall be sufficient to satisfy the requirements of the Plan.
Inability of the Company to obtain authority from any regulatory
body having jurisdiction, which authority is deemed by the Company's counsel to
be necessary to the lawful issuance and sale of any Shares hereunder, shall
relieve the Company of any liability in respect of the failure to issue or sell
such Shares as to which such requisite authority shall not have been obtained.
16. Option Agreement. Options shall be evidenced by written Stock
Option Agreements in such form as the Board shall approve.
17. Withholding Taxes. Subject to Section 4(b)(x) of the Plan and
prior to the Tax Date, the Optionee may make an irrevocable election to have the
Company withhold from those Shares that would otherwise be received upon the
exercise of any Non-Statutory Stock Option, a number of Shares having a Fair
Market Value equal to the minimum amount necessary to satisfy the Company's
federal, state, local and foreign tax withholding obligations and FICA and FUTA
obligations with respect to the exercise of such Option by the Optionee.
18. Miscellaneous Provisions.
(a) Plan Expense. Any expenses of administering this Plan shall
be borne by the Company.
(b) Use of Exercise Proceeds. The payment received from
Optionees from the exercise of Options shall be used for the general corporate
purposes of the Company.
(c) Construction of Plan. The validity, construction,
interpretation, administration and effect of the Plan and of its rules and
regulations, and rights relating to the Plan, shall be determined in accordance
with the laws of the State of Nevada and where applicable, in accordance with
the Code.
(d) Taxes. The Company shall be entitled if necessary or
desirable to pay or withhold the amount of any tax attributable to the delivery
of Common Stock under the Plan from other amounts payable to the Employee after
giving the person entitled to receive such Common Stock notice as far in advance
as practical, and the Company may defer making delivery of such Common Stock if
any such tax may be pending unless and until indemnified to its satisfaction.
(e) Indemnification. In addition to such other rights of
indemnification as they may have as members of the Board, the members of the
Board shall be indemnified by the Company against all costs and expenses
reasonably incurred by them in connection with any
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action, suit or proceeding to which they or any of them may be party by reason
of any action taken or failure to act under or in connection with the Plan or
any Option, and against all amounts paid by them in settlement thereof (provided
such settlement is approved by independent legal counsel selected by the
Company) or paid by them in satisfaction of a judgment in any such action, suit
or proceeding, except a judgment based upon a finding of bad faith; provided
that upon the institution of any such action, suit or proceeding a Board member
shall, in writing, give the Company notice thereof and an opportunity, at its
own expense, to handle and defend the same before such Board member undertakes
to handle and defend it on her or his own behalf.
(f) Gender. For purposes of this Plan, words used in the
masculine gender shall include the feminine and neuter, and the singular shall
include the plural and vice versa, as appropriate.
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EXHIBIT 2
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated this 21st day of February, 1997,
pursuant to Section 252 of the General Corporation Law of the State of Delaware
and Section 16-10a-1101 of the Utah Business Corporation Act, between Forte
Computer Easy, Inc., a Utah corporation, and AAP Merger Corporation, a Delaware
corporation (hereinafter referred to as the "Constituent Corporations").
WITNESSETH that:
WHEREAS, all of the Constituent Corporations desire to merge into a single
corporation; and
WHEREAS, said AAP Merger Corporation, a corporation organized under the
laws of the State of Delaware had its Certificate of Incorporation filed in the
office of the Secretary of State of Delaware on February 21, 1997, and recorded
in the office of the Recorder of Deeds for the County of New Castle and has an
authorized capital stock consisting of one hundred million (100,000,000) shares
of common stock, $.001 par value and twenty million (20,000,000) shares of
preferred stock, $.001 par value, amounting in the aggregate to One Hundred
Twenty Thousand Dollars ($120,000) of which stock one (1) share is now issued
and outstanding and such share shall be cancelled; and
WHEREAS, said Forte Computer Easy, Inc. had its Articles of Incorporation
filed in the office of the Secretary of State of Utah on October 27, 1980, and
has an authorized capital stock consisting of fifty million (50,000,000) shares
of common stock, $.01 par value, amounting in the aggregate to Five Hundred
Thousand Dollars ($500,000) and twenty million (20,000,000) shares of preferred
stock, $.01 par value, of which stock one million (1,000,000) shares of such
preferred stock and forty-eight million six hundred five thousand seven hundred
and ninety-four (48,605,794) shares of such common stock are now issued and
outstanding; and
WHEREAS, the registered office of said AAP Merger Corporation in the
State of Delaware is located at Corporation Trust Center, 1209 Orange Street in
the City of Wilmington, County of New Castle, and the name of its registered
agent at such address is The Corporation Trust Company. The registered office of
Forte Computer Easy, Inc. in the State of Utah is located at 50 West Broadway,
8th Floor in the City of Salt Lake City, County of Salt Lake, and the name of
its registered agent at such address is CT Corporation System.
NOW, THEREFORE, the Constituent Corporations, in consideration of the
mutual covenants, agreements and provisions hereinafter contained, do hereby
prescribe the terms and conditions of said merger and mode of carrying the same
into effect as follows:
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FIRST: AAP Merger Corporation hereby merges into itself Forte Computer
Easy, Inc. and said Forte Computer Easy, Inc. hereby is merged into AAP Merger
Corporation, which shall be the surviving corporation.
SECOND: The Certificate of Incorporation of AAP Merger, Inc. shall
continue in full force and effect as the Certificate of Incorporation of the
corporation surviving this merger and is amended as follows:
1. The name of the corporation is: American Architectural Products
Corporation.
THIRD: The manner of converting the outstanding shares of the capital
stock of each of the Constituent Corporations into the shares or other
securities of the surviving corporation shall be as follows:
(a) Each share of common stock of the surviving corporation, which
shall be issued and outstanding on the effective date of this Agreement, shall
be cancelled.
(b) Each share of common stock of the merged corporation which shall
be outstanding on the effective date of this Agreement, and all rights in
respect thereof shall forthwith be changed and converted into one-tenth (.1) of
a share of common stock of the surviving corporation.
(c) Each share of preferred stock of the merged corporation which
shall be outstanding on the effective date of this Agreement, and all rights in
respect thereof, shall forthwith be changed and converted into 7.5486324 shares
of common stock of the surviving corporation.
(d) After the effective date of this Agreement each holder of an
outstanding certificate representing shares of common stock of the merged
corporation shall surrender the same to the surviving corporation and each such
holder shall be entitled upon such surrender to receive the number of shares of
common stock of the surviving corporation on the basis provided herein. Until so
surrendered the outstanding shares of the stock of the merged corporation to be
converted into the stock of the surviving corporation as provided herein, may be
treated by the surviving corporation for all corporate purposes as evidencing
the ownership of shares of the surviving corporation as though said surrender
and exchange had taken place. After the effective date of this Agreement each
registered owner of any uncertificated shares of common stock of the merged
corporation shall have said shares cancelled and said registered owner shall be
entitled to the number of common shares of the surviving corporation on the
basis provided herein.
(e) After the effective date of this Agreement each holder of an
outstanding certificate representing shares of preferred stock of the merged
corporation shall surrender the same to the surviving corporation and each such
holder shall be entitled upon such surrender to
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receive the number of shares of common stock of the surviving corporation on the
basis provided herein. Until so surrendered the outstanding shares of the stock
of the merged corporation to be converted into the stock of the surviving
corporation as provided herein, may be treated by the surviving corporation for
all corporate purposes as evidencing the ownership of shares of the surviving
corporation as though said surrender and exchange had taken place. After the
effective date of this Agreement each registered owner of any uncertificated
shares of preferred stock of the merged corporation shall have said shares
cancelled and said registered owner shall be entitled to the number of common
shares of the surviving corporation on the basis provided herein.
FOURTH: The terms and conditions of the merger are as follows:
(a) The Bylaws of the surviving corporation as they shall exist on
the effective date of this Agreement shall be and remain the Bylaws of the
surviving corporation until the same shall be altered, amended or repealed as
therein provided.
(b) The directors and officers of the surviving corporation shall
continue in office until the next annual meeting of stockholders and until their
successors shall have been elected and qualified.
(c) This merger shall become effective upon filing with the
Secretary of State of Delaware and the Secretary of the State of Utah.
(d) Upon the merger becoming effective, all the property, rights,
privileges, franchises, patents, trademarks, licenses, registrations, and other
assets of every kind and description of the merged corporation shall be
transferred to, vested in and devolve upon the surviving corporation without
further act or deed and all property, rights, and every other interest of the
surviving corporation and the merged corporation shall be as effectively the
property of the surviving corporation as they were of the surviving corporation
and the merged corporation respectively. The merged corporation hereby agrees
from time to time, as and when requested by the surviving corporation or by its
successors or assigns, to execute and deliver or cause to be executed and
delivered all such deeds and instruments and to take or cause to be taken such
further or other action as the surviving corporation may deem necessary or
desirable in order to vest in and confirm to the surviving corporation title to
and possession of any property of the merged corporation acquired or to be
acquired by reason of or as a result of the merger herein provided for and
otherwise to carry out the intent and purposes hereof and the proper officers
and directors of the merged corporation and the proper officers and directors of
the surviving corporation are fully authorized in the name of the merged
corporation or otherwise to take any and all such action.
(e) The surviving corporation may be served with process in the
State of Delaware in any proceeding for enforcement of any obligation of Forte
Computer Easy, Inc. as well as for enforcement of any obligation of the
surviving corporation arising from the merger, including any suit or other
proceeding to enforce the right of any stockholder as determined in
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appraisal proceedings pursuant to the provisions of Section 262 of Title 8 of
the Delaware Code of 1953; and it does hereby irrevocably appoint the Secretary
of State of Delaware as its agent to accept service of process in any such suit
or other proceeding. The address to which a copy of such process shall be mailed
by the Secretary of State of Delaware is 1350 Albert Street, Youngstown, Ohio
44505 until the surviving corporation shall have hereafter designated in writing
to the said Secretary of State a different address for such purpose. Service of
such process may be made by personally delivering to and leaving with the
Secretary of State of Delaware duplicate copies of such process, one of which
copies the Secretary of State of Delaware shall forthwith send by registered
mail to said AAP Merger Corporation at the above address.
FIFTH: Anything herein or elsewhere to the contrary notwithstanding, this
Agreement may be terminated and abandoned by mutual consent of the Boards of
Directors of any constituent corporation at any time prior to the date of filing
the Agreement with the Secretary of State. This Agreement may be amended by the
Board of Directors of its constituent corporations at any time prior to the date
of filing the agreement with the Secretary of State, provided that an amendment
made subsequent to the adoption of the Agreement by the stockholders of any
constituent corporation shall not (1) alter or change the amount or kind of
shares, securities, cash, property and/or rights to be received in exchange for
or on conversion of all or any of the shares of any class or series thereof of
such constituent corporation, (2) alter or change any term of the Certificate of
Incorporation of the surviving corporation to be effected by the merger, or (3)
alter or change any of the terms and conditions of the Agreement if such
alteration or change would adversely affect the holders of any class or series
thereof of such constituent corporation.
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IN WITNESS WHEREOF, the parties to this Agreement, pursuant to the
approval and authority duly given by resolution adopted by their respective
Boards of Directors have caused these presents to be executed by the President
or Vice-President or Chairman of the Board of Directors and attested by the
Secretary of each party hereto as the respective act, deed and agreement of said
corporations on this 21st day of February, 1997.
FORTE COMPUTER EASY, INC.
By /s/ Frank J. Amedia
-------------------
Frank J. Amedia
President
ATTEST:
By /s/ David S. McKelvey
---------------------
David S. McKelvey
Secretary
AAP MERGER CORPORATION
By /s/ Frank J. Amedia
-------------------
Frank J. Amedia
President
ATTEST:
By /s/ David S. McKelvey
---------------------
David S. McKelvey
Secretary
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EXHIBIT 3
PART 13. DISSENTERS' RIGHTS
16-10a-1301 DEFINITIONS.--For purposes of Part 13:
(1) "Beneficial shareholder" means the person who is a beneficial owner of
shares held in a voting trust or by a nominee as the record shareholder.
(2) "Corporation" means the issuer of the shares held by a dissenter
before the corporate action, or the surviving or acquiring corporation by merger
or share exchange of that issuer.
(3) "Dissenter" means a shareholder who is entitled to dissent from
corporate action under Section 16-10a-1302 and who exercises that right when and
in the manner required by Sections 16-10a-1320 through 16-10a-1328.
(4) "Fair value" with respect to a dissenter's shares, means the value of
the shares immediately before the effectuation of the corporate action to which
the dissenter objects, excluding any appreciation or depreciation in
anticipation of the corporate action.
(5) "Interest" means interest from the effective date of the corporate
action until the date of payment, at the statutory rate set forth in Section
15-1-1, compounded annually.
(6) "Record shareholder" means the person in whose name shares are
registered in the records of a corporation or the beneficial owner of shares
that are registered in the name of a nominee to the extent the beneficial owner
is recognized by the corporation as the shareholder as provided in Section
16-10a-723.
(7) "Shareholder" means the record shareholder or the beneficial
shareholder.
16-10a-1302 RIGHT TO DISSENT.--(1) A shareholder, whether or not entitled
to vote, is entitled to dissent from, and obtain payment of the fair value of
shares held by him in the event of, any of the following corporate actions:
(a) consummation of a plan of merger to which the corporation is a party
if:
(i) shareholder approval is required for the merger by Section 16-10a-1103
or the articles of incorporation; or
(ii) the corporation is a subsidiary that is merged with its parent under
Section 16-10a-1104;
(b) consummation of a plan of share exchange to which the corporation is a
party as the corporation whose shares will be acquired;
(c) consummation of a sale, lease, exchange, or other disposition of all,
or substantially all, of the property of the corporation for which a shareholder
vote is required under Subsection 16-10a-1202(1), but not including a sale for
cash pursuant to a plan by which all or substantially all of the net proceeds of
the sale will be distributed to the shareholders within one year after the date
of sale; and
(d) consummation of a sale, lease, exchange, or other disposition of all,
or substantially all, of the property of an entity controlled by the corporation
if the shareholders of the corporation were entitled to vote upon the consent of
the corporation to the disposition pursuant to Subsection 16-10a-1202(2).
(2) A shareholder is entitled to dissent and obtain payment of the fair
value of his shares in the event of any other corporate action to the extent the
articles of incorporation, bylaws, or a resolution of the board of directors so
provides.
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(3) Notwithstanding the other provisions of this part, except to the
extent otherwise provided in the articles of incorporation, bylaws, or a
resolution of the board of directors, and subject to the limitations set forth
in Subsection (4), a shareholder is not entitled to dissent and obtain payment
under Subsection (1) of the fair value of the shares of any class or series of
shares which either were listed on a national securities exchange registered
under the federal Securities Exchange Act of 1934, as amended, or on the
National Market System of the National Association of Securities Dealers
Automated Quotation System, or were held of record by more than 2,000
shareholders, at the time of:
(a) the record date fixed under Section 16-10a-707 to determine the
shareholders entitled to receive notice of the shareholders' meeting at which
the corporate action is submitted to a vote;
(b) the record date fixed under Section 16-10a-704 to determine
shareholders entitled to sign writings consenting to the proposed corporate
action; or
(c) the effective date of the corporate action if the corporate action is
authorized other than by a vote of shareholders.
(4) The limitation set forth in Subsection (3) does not apply if the
shareholder will receive for his shares, pursuant to the corporate action,
anything except:
(a) shares of the corporation surviving the consummation of the plan of
merger or share exchange;
(b) shares of a corporation which at the effective date of the plan of
merger or share exchange either will be listed on a national securities exchange
registered under the federal Securities Exchange Act of 1934, as amended, or on
the National Market System of the National Association of Securities Dealers
Automated Quotation System, or will be held of record by more than 2,000
shareholders;
(c) cash in lieu of fractional shares; or
(d) any combination of the shares described in Subsection (4), or cash in
lieu of fractional shares.
(5) A shareholder entitled to dissent and obtain payment for his shares
under this part may not challenge the corporate action creating the entitlement
unless the action is unlawful or fraudulent with respect to him or to the
corporation.
16-10a-1303 DISSENT BY NOMINEES AND BENEFICIAL OWNERS.--(1) A
record shareholder may assert dissenters' rights as to fewer than all the shares
registered in his name only if the shareholder dissents with respect to all
shares beneficially owned by any one person and causes the corporation to
receive written notice which states the dissent and the name and address of each
person on whose behalf dissenters' rights are being asserted. The rights of a
partial dissenter under this subsection are determined as if the shares as to
which the shareholder dissents and the other shares held of record by him were
registered in the names of different shareholders.
(2) A beneficial shareholder may assert dissenters' rights as to shares
held on his behalf only if:
(a) the beneficial shareholder causes the corporation to receive the
record shareholder's written consent to the dissent not later than the time the
beneficial shareholder asserts dissenters' rights; and
(b) the beneficial shareholder dissents with respect to all shares of
which he is the beneficial shareholder.
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(3) The corporation may require that, when a record shareholder dissents
with respect to the shares held by any one or more beneficial shareholders, each
beneficial shareholder must certify to the corporation that both he and the
record shareholders of all shares owned beneficially by him have asserted, or
will timely assert, dissenters' rights as to all the shares unlimited on the
ability to exercise dissenters' rights. The certification requirement must be
stated in the dissenters' notice given pursuant to Section 16-10a-1322.
16-10a-1320 NOTICE OF DISSENTERS' RIGHTS.--(1) If a proposed corporate
action creating dissenters' rights under Section 16-10a-1302 is submitted to a
vote at a shareholders' meeting, the meeting notice must be sent to all
shareholders of the corporation as of the applicable record date, whether or not
they are entitled to vote at the meeting. The notice shall state that
shareholders are or may be entitled to assert dissenters' rights under this
part. The notice must be accompanied by a copy of this part and the materials,
if any, that under this chapter are required to be given the shareholders
entitled to vote on the proposed action at the meeting. Failure to give notice
as required by this subsection does not affect any action taken at the
shareholders' meeting for which the notice was to have been given.
(2) If a proposed corporate action creating dissenters' rights under
Section 16-10a-1302 is authorized without a meeting of shareholders pursuant to
Section 16-10a-704, any written or oral solicitation of a shareholder to execute
a written consent to the action contemplated by Section 16-10a-704 must be
accompanied or preceded by a written notice stating that shareholders are or may
be entitled to assert dissenters' rights under this part, by a copy of this
past, and by the materials, if any, that under this chapter would have been
required to be given to shareholders entitled to vote on the proposed action if
the proposed action were submitted to a vote at a shareholders' meeting. Failure
to give written notice as provided by this subsection does not affect any action
taken pursuant to Section 16-10a-704 for which the notice was to have been
given.
16-10a-1321 DEMAND FOR PAYMENT--ELIGIBILITY AND NOTICE OF IN-
TENT.--(1) If a proposed corporate action creating dissenters' rights under
Section 16-10a-1302 is submitted to a vote at a shareholders' meeting, a
shareholder who wishes to assert dissenters' rights:
(a) must cause the corporation to receive, before the vote is taken,
written notice of his intent to demand payment for shares if the proposed action
is effectuated; and
(b) may not vote any of his shares in favor of the proposed action.
(2) If a proposed corporate action creating dissenters' rights under
Section 16-10a-1302 is authorized without a meeting of shareholders pursuant to
Section 16-10a-704, a shareholder who wishes to assert dissenters' rights may
not execute a writing consenting to the proposed corporate action.
(3) In order to be entitled to payment for shares under this part, unless
otherwise provided in the articles of incorporation, bylaws, or a resolution
adopted by the board of directors, a shareholder must have been a shareholder
with respect to the shares for which payment is demanded as of the date the
proposed corporate action creating dissenters' rights under Section 16-10a-1302
is approved by the shareholders, if shareholder approval is required, or as of
the effective date of the corporate action if the corporate action is authorized
other than by a vote of shareholders.
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(4) A shareholder who does not satisfy the requirements of Subsections (1)
through (3) is not entitled to payment for shares under this part.
16-10a-1322 DISSENTERS' NOTICE.--(1) If a proposed corporate action
creating dissenters' rights under Section 16-10a-1302 is authorized, the
corporation shall give a written dissenters' notice to all shareholders who are
entitled to demand payment for their shares under this part.
(2) The dissenters' notice required by Subsection (1) must be sent no
later than ten days after the effective date of the corporate action creating
dissenters' rights under Section 16- 10a-1302, and shall:
(a) state that the corporate action was authorized and the effective date
or proposed effective date of the corporate action;
(b) state an address at which the corporation will receive payment demands
and an address at which certificates for certificated shares must be deposited;
(c) inform holders of uncertificated shares to what extent transfer of the
shares will be restricted after the payment demand is received;
(d) supply a form for demanding payment, which form requests a dissenter
to state an address to which payment is to be made;
(e) set a date by which the corporation must receive the payment demand
and by which certificates for certificated shares must be deposited at the
address indicated in the dissenters' notice, which dates may not be fewer than
30 nor more than 70 days after the date the dissenters' notice required by
Subsection (1) is given;
(f) state the requirement contemplated by Subsection 16-10a-1303(3), if
the requirement is imposed; and
(g) be accompanied by a copy of this part.
16-10a-1323 PROCEDURE TO DEMAND PAYMENT.--(1) A shareholder who is given a
dissenters' notice described in Section 16-10a-1322, who meets the requirements
of Section 16-10a-1321, and wishes to assert dissenters' rights must, in
accordance with the terms of the dissenters' notice:
(a) cause the corporation to receive a payment demand, which may be the
payment demand form contemplated in Subsection 16-10a-1322(2)(d), duly
completed, or may be stated in another writing;
(b) deposit certificates for his certificated shares in accordance with
the terms of the dissenters' notice; and
(c) if required by the corporation in the dissenters' notice described in
Section 16-10a- 1322, as contemplated by Section 16-10a-1327, certify in
writing, in or with the payment demand, whether or not he or the person on whose
behalf he asserts dissenters' rights acquired beneficial ownership of the shares
before the date of the first announcement to news media or to shareholders of
the terms of the proposed corporate action creating dissenters' rights under
Section 16-10a-1302.
(2) A shareholder who demands payment in accordance with Subsection (1)
retains all rights of a shareholder except the right to transfer the shares
until the effective date of the proposed corporate action giving rise to the
exercise of dissenters' rights and has only the right to receive payment for the
shares after the effective date of the corporate action.
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(3) A shareholder who does not demand payment and deposit share
certificates as required, by the date or dates set in the dissenters' notice, is
not entitled to payment for shares under this part.
16-10a-1324 UNCERTIFICATED SHARES.--(1) Upon receipt of a demand for
payment under Section 16-10a-1323 from a shareholder holding uncertificated
shares, and in lieu of the deposit of certificates representing the shares, the
corporation may restrict the transfer of the shares until the proposed corporate
action is taken or the restrictions are released under Section 16-10a-1326.
(2) In all other respects, the provisions of Section 16-10a-1323 apply to
shareholders who own uncertificated shares.
16-10a-1325 PAYMENT.--(1) Except as provided in Section 16-10a-1327, upon
the later of the effective date of the corporate action creating dissenters'
rights under Section 16-10a- 1302, and receipt by the corporation of each
payment demand pursuant to Section 16-10a-1323, the corporation shall pay the
amount the corporation estimates to be the fair value of the dissenters' shares,
plus interest to each dissenter who has complied with Section 16-10a-1323, and
who meets the requirements of Section 16-10a-1321, and who has not yet received
payment.
(2) Each payment made pursuant to Subsection (1) must be accompanied by:
(a) (i) (A) the corporation's balance sheet as of the end of its most
recent fiscal year, or if not available, a fiscal year ending not more than 16
months before the date of payment;
(B) an income statement for that year;
(C) a statement of changes in shareholders' equity for that year and a
statement of cash flow for that year, if the corporation customarily provides
such statements to shareholders; and
(D) the latest available interim financial statements, if any;
(ii) the balance sheet and statements referred to in Subsection (i) must
be audited if the corporation customarily provides audited financial statements
to shareholders;
(b) a statement of the corporation's estimate of the fair value of the
shares and the amount of interest payable with respect to the shares;
(c) a statement of the dissenter's right to demand payment under Section
16-10a-1328; and
(d) a copy of this part.
16-10a-1326 FAILURE TO TAKE ACTION.--(1) If the effective date of the
corporate action creating dissenters' rights under Section 16-10a-1302 does not
occur within 60 days after the date set by the corporation as the date by which
the corporation must receive payment demands as provided in Section 16-10a-1322,
the corporation shall return all deposited certificates and release the transfer
restrictions imposed on uncertificated shares, and all shareholders who
submitted a demand for payment pursuant to Section 16-10a-1323 shall thereafter
have all rights of a shareholder as if no demand for payment had been made.
(2) If the effective date of the corporate action creating dissenters'
rights under Section 16-10a-1302 occurs more than 60 days after the date set by
the corporation as the date by which the corporation must receive payment
demands as provided in Section 16-10a-1322,
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then the corporation shall send a new dissenters' notice, as provided in Section
16-10a-1322, and the provisions of Sections 16-10a-1323 through 16-10a-1328
shall again be applicable.
16-10a-1327 SPECIAL PROVISIONS RELATING TO SHARES ACQUIRED
AFTER ANNOUNCEMENT OF PROPOSED CORPORATE ACTION.--(1) A corporation
may, with the dissenters' notice given pursuant to Section 16-10a-1302, state
the date of the first announcement to news media or to shareholders of the terms
of the proposed corporate action creating dissenters' rights under Section
16-10a-1302 and state that a shareholder who asserts dissenters' rights must
certify in writing, in or with the payment demand, whether or not he or the
person on whose behalf he asserts dissenters' rights AQUIRED beneficial
ownership of the shares before that date. With respect to any dissenter who does
not certify in writing, in or with the payment demand that he or the person on
whose behalf the dissenters' rights are being asserted, acquired beneficial
ownership of the shares before that date, the corporation may, in lieu of making
the payment provided in Section 16-10a-1325, offer to make payment if the
dissenter agrees to accept it in full satisfaction of the demand.
(2) An offer to make payment under Subsection (1) shall include or be
accompanied by the information required by Subsection 16-10a-1325(2).
16-10a-1328 PROCEDURE IF SHAREHOLDER DISSATISFIED WITH
PAYMENT OFFER.--(1) A dissenter who has not accepted an offer made by a
corporation under Section 16-10a-1327 may notify the corporation in writing of
his own estimate of the fair value of his shares and demand payment of the
estimated amount, plus interest, less any payment made under Section
16-10a-1325, if:
(a) the dissenter believes that the amount paid under Section 16-10a-1325
or offered under Section 16-10a-1327 is less than the fair value of the shares;
(b) the corporation fails to make payment under Section 16-10a-1325 within
60 days after the date set by the corporation as the date by which it must
receive the payment demand; or
(c) the corporation, having failed to take the proposed corporate action
creating dissenters' rights, does not return the deposited certificates or
release the transfer restrictions imposed on uncertificated shares as required
by Section 16-10a-1326.
(2) A dissenter waives the right to demand payment under this section
unless he causes the corporation to receive the notice required by Subsection
(1) within 30 days after the corporation made or offered payment for his shares.
16-10a-1330 JUDICIAL APPRAISAL OF SHARES--COURT ACTION.--(1) If a demand
for payment under Section 16-10a-1328 remains unresolved, the corporation shall
commence a proceeding within 60 days after receiving the payment demand
contemplated by Section 16-10a-1328, and petition the court to determine the
fair value of the shares and the amount of interest. If the corporation does not
commence the proceeding within the 60-day period, it shall pay each dissenter
whose demand remains unresolved the amount demanded.
(2) The corporation shall commence the proceeding described in Subsection
(1) in the district court of the county in this state where the corporation's
principal office, or if it has no principal office in this state, the county
where its registered office is located. If the corporation is a foreign
corporation without a registered office in this state, it shall commence the
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proceeding in the county in this state where the registered office of the
domestic corporation merged with, or whose shares were acquired by, the foreign
corporation was located.
(3) The corporation shall make all dissenters who have satisfied the
requirements of Sections 16-10a-1321, 16-10a-1323, and 16-10a-1328, whether or
not they are residents of this state whose demands remain unresolved, parties to
the proceeding commenced under Subsection (2) as an action against their shares.
All such dissenters who are named as parties must be served with a copy of the
petition. Service on each dissenter may be by registered or certified mail to
the address stated in his payment demand made pursuant to Section 16-10a-1328.
If no address is stated in the payment demand, service may be made at the
address stated in the payment demand given pursuant to Section 16-10a-1323. If
no address is stated in the payment demand, service may be made at the address
shown on the corporation's current record of shareholders for the record
shareholder holding the dissenter's shares. Service may also be made otherwise
as provided by law.
(4) The jurisdiction of the court in which the proceeding is commenced
under Subsection (2) is plenary and exclusive. The court may appoint one or more
persons as appraisers to receive evidence and recommend decision on the question
of fair value. The appraisers have the powers described in the order appointing
them, or in any amendment to it. The dissenters are entitled to the same
discovery rights as parties in other civil proceedings.
(5) Each dissenter made a party to the proceeding commenced under
Subsection (2) is entitled to judgment:
(a) for the amount, if any, by which the court finds that the fair value
of his shares, plus interest, exceeds the amount paid by the corporation
pursuant to Section 16-10a-1325; or
(b) for the fair value, plus interest, of the dissenter's after-acquired
shares for which the corporation elected to withhold payment under Section
16-10a-1327.
16-10a-1331 COURT COSTS AND COUNSEL FEES.--(1) The court in an appraisal
proceeding commenced under Section 16-10a-1330 shall determine all costs of the
proceeding, including the reasonable compensation and expenses of appraisers
appointed by the court. The court shall assess the costs against the
corporation, except that the court may assess costs against all or some of the
dissenters, in amounts the court finds equitable, to the extent the court finds
that the dissenters acted arbitrarily, vexatiously, or not in good faith in
demanding payment under Section 16-10a-1328.
(2) The court may also assess the fees and expenses of counsel and experts
for the respective parties, in amounts the court finds equitable:
(a) against the corporation and in favor of any or all dissenters if the
court finds the corporation did not substantially comply with the requirements
of Sections 16-10a-1320 through 16-10a-1328; or
(b) against either the corporation or one or more dissenters, in favor of
any other party, if the court finds that the party against whom the fees and
expenses are assessed acted arbitrarily, vexatiously, or not in good faith with
respect to the rights provided by this part.
(3) If the court finds that the services of counsel for any dissenter were
of substantial benefit to other dissenters similarly situated, and that the fees
for those services should not be assessed against the corporation, the court may
award to those counsel reasonable fees to be paid out of the amounts awarded the
dissenters who were benefited.
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EXHIBIT 4
CERTIFICATE OF INCORPORATION
OF
AAP MERGER CORPORATION
1. The name of the corporation is: AAP Merger Corporation.
2. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
3. The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
4. The total number of shares of capital stock which the Corporation
shall have authority to issue is one hundred twenty million (120,000,000),
divided into one hundred million (100,000,000) shares of common stock of the par
value of $0.001 per share and twenty million (20,000,000) shares of preferred
stock of the par value of $0.001 per share.
As to the preferred stock of the Corporation, the power to issue any
shares of preferred stock of any class or any series of any class and
designations, voting powers, preferences, and relative participating, optional
or other rights, if any, or the qualifications, limitations, or restrictions
thereof, shall be determined by the Board of Directors.
Cumulative voting as provided for by Section 214 of Title 8 of the
Delaware Code shall not apply to this Corporation.
Preemptive rights as provided for by Section 102(b)(3) of Title 8 of
the Delaware Code shall not be granted and are hereby expressly denied.
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5. The name and mailing address of the sole incorporator is:
NAME MAILING ADDRESS
Frank J. Amedia c/o Forte Computer Easy, Inc.
1350 Albert Street
Youngstown, Ohio 44505
6. The total number of Directors constituting the full Board of
Directors shall be not less than five (5) nor more than fifteen (15) and the
Board of Directors shall have sole authority to determine the number of
Directors serving on the Board, and may increase or decrease the exact number of
Directors from time to time by resolution duly adopted by such Board. No
decrease in the number of Directors shall have the effect of shortening the term
of any incumbent Director.
7. The Corporation shall have perpetual existence.
8. The Corporation shall be managed by the Board of Directors, which
shall exercise all powers conferred under the laws of the State of Delaware. The
Board of Directors shall have authority to make, alter or repeal the Bylaws of
the Corporation.
9. Elections of directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide.
10. Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books and records of the corporation
may be kept (subject to any provision contained in the statutes) outside the
State of Delaware at such place or places as may be designated from time to time
by the Board of Directors.
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11. No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director; provided, however, that nothing contained herein shall
eliminate or limit the liability of a director of the Corporation to the extent
provided by applicable laws (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 knowing violation of law, (iii)
for authorizing the payment of a dividend or repurchase of stock, or (iv) for
any transaction from which the director derived an improper personal benefit.
The limitation of liability provided herein shall continue after a director has
ceased to occupy such position as to acts or omissions occurring during such
director's term or terms of office.
12. The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
The undersigned, being each of the incorporators hereinbefore named, for
the purpose of forming a corporation pursuant to the General Corporation Law of
the State of Delaware, do hereby declare and certify that this is our act and
deed and the facts herein stated are true, and accordingly have hereunto set our
hands this 20th day of February, 1997.
/s/ Frank J. Amedia
--------------------
INCORPORATOR
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EXHIBIT 5
BYLAWS
OF
AAP MERGER CORPORATION
ARTICLE I
OFFICES
1. Registered Office.
The registered office of the Corporation shall be in the City of
Wilmington, County of New Castle, State of Delaware.
2. Other Offices.
The Corporation may also have offices at such other places both within and
without the State of Delaware as the Board of Directors may from time to time
determine or the business of the Corporation may require.
ARTICLE II
STOCKHOLDERS
1. Annual Meeting.
The annual meeting of the stockholders shall be held at such date and time
as the Board of Directors shall determine, for the purpose of electing Directors
and for the transaction of such other business as may properly come before the
meeting. If the election of Directors is not held on the day designated herein
for any annual meeting of the stockholders, or any adjournment thereof, the
Directors shall cause the election to be held at a special meeting of the
stockholders as soon thereafter as convenient.
2. Special Meetings.
Special meetings of the stockholders may be called for any purpose or
purposes at any time by the Board of Directors, Chairman of the Board, the
President or any member of the Executive Committee (if any), and shall be called
by the Chairman of the Board or the President at the request of the holders of
not less than one-tenth (1/10) of all outstanding stock of the Corporation
entitled to vote at such meeting, or otherwise as provided by the Delaware
General Corporation Law and Section 12 of Article III of these Bylaws. Such
request shall state the purpose or purposes of the proposed meeting.
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3. Place of Meetings.
Annual and special meetings of the stockholders shall be held at the
principal office of the Corporation, unless otherwise specified in the notice
calling any such meeting, or in the event of a waiver of notice of such meeting,
in such waiver of notice.
4. Notice of Meeting.
Written notice stating the place, date and hour of the meeting and, in the
case of a special meeting, the purpose or purposes for which the meeting is
called, shall be delivered to each stockholder of record entitled to vote at
such meeting not less than ten (10) nor more than sixty (60) days before the
date of the meeting. Notice may be delivered either personally, by first class,
certified or registered mail or by electronic or facsimile transmission, by an
officer of the Corporation at the direction of the person or persons calling the
meeting. If mailed, notice shall be deemed to be delivered when mailed to the
stockholders at his or her address as it appears on the stock transfer books of
the Corporation. Notice need not be given of an adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken, provided that such adjournment is for less than thirty (30) days and
further provided that a new record date is not fixed for the adjourned meeting,
in either of which events, written notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at such meeting. At any
adjourned meeting, any business may be transacted which might have been
transacted at the meeting as originally noticed. A written waiver of notice,
whether given before or after the meeting to which it relates, shall be
equivalent to the giving of notice of such meeting to the stockholder or
stockholders signing such waiver. Attendance of a stockholder at a meeting shall
constitute a waiver of notice of such meeting, except when the stockholder
attends for the express purpose of objecting to the transaction of any business
because the meeting is not lawfully called or convened.
5. Fixing Date for Determination of Stockholders Record.
In order that the Corporation may determine the stockholders entitled to
notice of and to vote at any meeting of stockholders or any adjournment thereof,
or to express consent to corporate action in writing without a meeting, or to
receive payment of any dividend or other distribution or allotment of any
rights, or to exercise any rights in respect of any other 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
(60) nor less than ten (10) days prior to the date of such meeting or such
action, as the case may be. If the Board has not fixed a record date for
determining the stockholders entitled to notice of and to vote at a meeting of
stockholders, the record date shall be at the close of business on the day next
preceding the day on which notice is given, or if notice is waived, at the close
of business on the day next preceding the day on which the meeting is held. If
the Board has not fixed a record date for determining the stockholders entitled
to express consent to corporate action in writing without a meeting, when no
prior action by the Board is necessary, the record date shall be the day on
which the first written consent is expressed by any stockholder. If the Board
has not
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fixed a record date for determining stockholders for any other purpose, the
record date shall be at the close of business on the day on which the Board
adopts the resolution relating thereto. A determination of stockholders of
record entitled to notice of or to vote at a meeting of stockholders shall apply
to any adjournment of the meeting; provided, however, that the Board may fix a
new record date for the adjourned meeting.
6. Record of Stockholders.
The Secretary or other officer having charge of the stock transfer books
of the Corporation shall make, or cause to be made, at least ten (10) days
before every meeting of stockholders, a complete record of the stockholders
entitled to vote at a meeting of stockholders or any adjournment thereof,
arranged in alphabetical order, with the address of and the number of shares
registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten (10) days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof and may be inspected by any stockholder who is present.
7. Quorum and Manner of Acting.
At any meeting of the stockholders, the presence, in person or by proxy,
of the holders of a majority of the outstanding stock entitled to vote shall
constitute a quorum. All shares represented and entitled to vote on any single
subject matter which may be brought before the meeting shall be counted for
quorum purposes. Only those shares entitled to vote on a particular subject
matter shall be counted for the purpose of voting on that subject matter.
Business may be conducted once a quorum is present and may continue to be
conducted until adjournment sine die, notwithstanding the withdrawal or
temporary absence of stockholders leaving less than a quorum. Except as
otherwise provided in the Delaware General Corporation Law, at any meeting which
is adjourned and subsequently reconvened, the affirmative vote of the holders of
a majority of the shares of stock then represented at the meeting and entitled
to vote thereat shall be the act of the stockholders; provided, however, that if
the shares of stock so represented are less than the number required to
constitute a quorum, the affirmative vote must be such as would constitute a
majority if a quorum were present, except that the affirmative vote of the
holders of a majority of the shares of stock then present is sufficient in all
cases to adjourn a meeting.
8. Voting of Shares of Stock.
Each stockholder shall be entitled to one vote or corresponding fraction
thereof for each share of stock or fraction thereof standing in his, her or its
name on the books of the Corporation on the record date. A stockholder may vote
either in person or by proxy executed in writing by the stockholder or by his,
her or its duly authorized attorney in fact, but no such proxy shall be voted or
acted upon after three (3) years from the date of its execution unless the
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proxy provides for a longer period. Shares of its own stock belonging to the
Corporation or to another corporation, if a majority of the shares entitled to
vote in the election of directors of such other corporation is held, directly or
indirectly, by the Corporation, shall neither be entitled to vote nor counted
for quorum purposes; provided, however, that the foregoing shall not limit the
right of any corporation to vote stock, including but not limited to its own
stock, when held by it in a fiduciary capacity. Shares of stock standing in the
name of another corporation may be voted by such officer, agent or proxy as the
bylaws of such other corporation may prescribe or, in the absence of such
provision, as the board of directors of such other corporation may determine.
Unless demanded by a stockholder present in person or by proxy at any meeting of
the stockholders and entitled to vote thereat, or unless so directed by the
chairman of the meeting, the vote thereat on any question need not be by ballot.
If such demand or direction is made, a vote by ballot shall be taken, and each
ballot shall be signed by the stockholder voting, or by his or her proxy, and
shall state the number of shares voted.
9. Organization.
At each meeting of the stockholders, the Chairman of the Board, or, if he
or she is absent therefrom, the President, or, if he or she is absent therefrom,
another officer of the Corporation chosen as chairman of such meeting by
stockholders holding a majority of the shares present in person or by proxy and
entitled to vote thereat, or, if all the officers of the Corporation are absent
therefrom, a stockholder of record so chosen, shall act as chairman of the
meeting and preside thereat. The Secretary, or, if he or she is absent from the
meeting or is required pursuant to the provisions of this Section 9 to act as
chairman of such meeting, the person (who shall be an Assistant Secretary, if
any and if present) whom the chairman of the meeting shall appoint shall act as
secretary of the meeting and keep the minutes thereof.
10. Order of Business.
The order of business at each meeting of the stockholders shall be
determined by the chairman of such meeting, but the order of business may be
changed by the vote of stockholders holding a majority of the shares present in
person or by proxy at such meeting and entitled to vote thereat.
11. Voting.
At all meetings of stockholders, each stockholder entitled to vote thereat
shall have the right to vote, in person or by proxy, and shall have, for each
share of stock registered in his, her or its name, the number of votes provided
by the Certificate of Incorporation in respect of stock of such class.
Stockholders shall not have cumulative voting rights with respect to the
election of Directors.
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12. Action By Stockholders Without a Meeting.
Any action required or permitted to be taken at a meeting of the
stockholders may be taken without a meeting, without notice and without a vote,
if a consent in writing, setting forth the action so taken, is signed by the
holders of outstanding stock having not less than the number of votes that would
have been necessary to authorize such action at a meeting at which all shares
entitled to vote were present and voted. Prompt notice of the taking of any such
action shall be given to any such stockholders entitled to vote who have not so
consented in writing.
ARTICLE III
BOARD OF DIRECTORS
1. General Powers.
The business and affairs of the Corporation shall be managed by the Board
of Directors.
2. Number, Term of Office and Qualifications.
Subject to the requirements of the Delaware General Corporation Law, the
Board of Directors may from time to time determine the number of Directors.
Until the Board shall otherwise determine, the number of Directors shall be that
number comprising the initial Board as set forth in the Certificate of
Incorporation. Each Director shall hold office until his or her successor is
duly elected or until his or her earlier death or resignation or removal in the
manner hereinafter provided. Directors need not be stockholders.
3. Place of Meeting.
The Board of Directors may hold its meetings at such place or places as it
may from time to time by resolution determine or as shall be designated in any
notices or waivers of notice thereof. Any such meeting, whether regular or
special, may be held by conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and participation in a meeting in such manner shall constitute presence in
person at such meeting.
4. Annual Meetings.
As soon as practicable after each annual election of Directors and on the
same day, the Board of Directors shall meet for the purpose of organization and
the transaction of other business at the place where regular meetings of the
Board of Directors are held, and no notice of such meeting shall be necessary in
order to legally hold the meeting, provided that a quorum is present. If such
meeting is not held as provided above, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for a
special meeting of
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the Board of Directors, or in the event of waiver of notice as specified in the
written waiver of notice.
5. Regular Meetings.
Regular meetings of the Board of Directors may be held without notice at
such times as the Chairman of the Board, the President or any member of the
Executive Committee (if any) shall determine.
6. Special Meetings; Notice.
Special meetings of the Board of Directors shall be held whenever called
by the Chairman of the Board, any member of the Executive Committee (if any) or
a majority of the Directors at the time in office. Notice shall be given, in the
manner hereinafter provided, of each such special meeting, which notice shall
state the time and place of such meeting, but need not state the purposes
thereof. Except as otherwise provided in Section 7 of this Article III, notice
of each such meeting shall be mailed to each Director, addressed to him or her
at his or her residence or usual place of business, at least two (2) days before
the day on which such meeting is to be held, or shall be sent addressed to him
or her at such place by telegraph, cable, wireless or other form of recorded
communication or delivered personally or by telephone not later than the day
before the day on which such meeting is to be held. A written waiver of notice,
whether given before or after the meeting to which it relates, shall be
equivalent to the giving of notice of such meeting to the Director or Directors
signing such waiver. Attendance of a Director at a special meeting of the Board
of Directors shall constitute a waiver of notice of such meeting, except when he
or she attends the meeting for the express purpose of objecting to the
transaction of any business because the meeting is not lawfully called or
convened.
7. Quorum and Manner of Acting.
A majority of the whole Board of Directors shall be present in person at
any meeting of the Board of Directors in order to constitute a quorum for the
transaction of business at such meeting, and except as otherwise specified in
these Bylaws, and except also as otherwise expressly provided by the Delaware
General Corporation Law, the vote of a majority of the Directors present at any
such meeting at which a quorum is present shall be the act of the Board of
Directors. In the absence of a quorum from any such meeting, a majority of the
Directors present thereat may adjourn such meeting from time to time to another
time or place, without notice other than announcement at the meeting, until a
quorum shall be present thereat. The Directors shall act only as a Board and the
individual Directors shall have no power as such.
8. Organization.
At each meeting of the Board of Directors, the Chairman of the Board of
Directors, or, if he or she is absent therefrom, the President, or if he or she
is absent therefrom, a Director chosen by a majority of the Directors present
thereat, shall act as chairman of such meeting and
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preside thereat. The Secretary, or if he or she is absent, the person (who shall
be an Assistant Secretary, if any and if present) whom the chairman of such
meeting shall appoint, shall act as Secretary of such meeting and keep the
minutes thereof.
9. Action by Directors Without a Meeting.
Any action required or permitted to be taken at a meeting of the Board of
Directors may be taken without a meeting, without prior notice and without a
vote, if a consent in writing, setting forth the action so taken, is signed by
all Directors and such consent is filed with the minutes of the proceedings of
the Board of Directors.
10. Resignations.
Any Director may resign at any time by giving written notice of his or her
resignation to the Corporation. Any such resignation shall take effect at the
time specified therein, or, if the time when it shall become effective is not
specified therein, it shall take effect immediately upon its receipt by the
Chairman of the Board, the President or the Secretary; and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
11. Removal of Directors.
Directors may be removed, with or without cause, as provided from time to
time by the Delaware General Corporation Law as then in effect.
12. Vacancies.
Vacancies and newly created directorships resulting from any increase in
the authorized number of Directors elected by the stockholders having the right
to vote as a single class may be filled by a majority of the Directors then in
office, although less than a quorum, or by a sole remaining Director. If at any
time, by reason of death or resignation or other cause, the Corporation has no
Directors in office, then any officer or any stockholder or an executor,
administrator, trustee or guardian of a stockholder, may call a special meeting
of stockholders for the purpose of filling vacancies in the Board of Directors.
If one or more Directors shall resign from the Board of Directors, effective at
a future date, a majority of the Directors then in office, including those who
have so resigned, shall have the power to fill such vacancy or vacancies, the
vote thereon to take effect when such resignation or resignations shall become
effective, and each Director so chosen shall hold office as provided in this
section in the filling of other vacancies.
13. Compensation.
Unless otherwise expressly provided by resolution adopted by the Board of
Directors, no Director shall receive any compensation for his or her services as
a Director. The Board of
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Directors may at any time and from time to time by resolution provide that the
Directors shall be paid a fixed sum for attendance at each meeting of the Board
of Directors or a stated salary as Director. In addition, the Board of Directors
may at any time and from time to time by resolution provide that Directors shall
be paid their actual expenses, if any, of attendance at each meeting of the
Board of Directors. Nothing in this section shall be construed as precluding any
Director from serving the Corporation in any other capacity and receiving
compensation therefor, but the Board of Directors may by resolution provide that
any Director receiving compensation for his or her services to the Corporation
in any other capacity shall not receive additional compensation for his or her
services as a Director.
ARTICLE IV
OFFICERS
1. Number.
The Corporation shall have the following officers: a Chairman of the Board
(who shall be a Director), a President, a Secretary and a Treasurer. At the
discretion of the Board of Directors, the Corporation may also have Vice
Presidents, one or more Assistant Vice Presidents, one or more Assistant
Secretaries, one or more Assistant Treasurers and such other officers as the
Board of Directors may from time to time determine. Any two or more offices may
be held by the same person.
2. Election and Term of Office.
The officers of the Corporation shall be elected annually by the Board of
Directors. Each such officer shall hold office until his or her successor is
duly elected or until his or her earlier death or resignation or removal in the
manner hereinafter provided.
3. Agents.
In addition to the officers mentioned in Section 1 of this Article IV, the
Board of Directors may appoint such agents as the Board of Directors may deem
necessary or advisable, each of which agents shall have such authority and
perform such duties as are provided in these Bylaws or as the Board of Directors
may from time to time determine. The Board of Directors may delegate to any
officer or to any committee the power to appoint or remove any such agents.
4. Removal.
Any officer may be removed, with or without cause, at any time by
resolution adopted by a majority of the Board of Directors.
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5. Resignations.
Any officer may resign at any time by giving written notice of his or her
resignation to the Board of Directors, the Chairman of the Board, the President
or the Secretary. Any such resignation shall take effect at the times specified
therein, or, if the time when it shall become effective is not specified
therein, it shall take effect immediately upon its receipt by the Board of
Directors, the Chairman of the Board, the President or the Secretary; and,
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
6. Vacancies.
A vacancy in any office due to death, resignation, removal,
disqualification or any other cause may be filled for the unexpired portion of
the term thereof by the Board of Directors.
7. Chairman of the Board.
The Chairman of the Board shall be the chief executive officer of the
Corporation and shall have, subject to the control of the Board, general and
active supervision and direction over the business and affairs of the
Corporation and over its several officers. The Chairman of the Board shall: (a)
preside at all meetings of the stockholders and at all meetings of the Board;
(b) make a report of the state of the business of the Corporation at each annual
meeting of the stockholders; (c) see that all orders and resolutions of the
Board are carried into effect; (d) sign, with the Secretary or an Assistant
Secretary, certificates for stock of the Corporation; (e) have the right to
sign, execute and deliver in the name of the Corporation all deeds, mortgages,
bonds, contracts or other instruments authorized by the Board, except in cases
where the signing, execution or delivery thereof is expressly delegated by the
Board or by these Bylaws to some other officer or agent of the Corporation or
where any of them are required by law otherwise to be signed, executed or
delivered; and (f) have the right to cause the corporate seal, if any, to be
affixed to any instrument which requires it. In general, the Chairman of the
Board shall perform all duties incident to the office of the Chairman of the
Board and such other duties as from time to time may be assigned to him or her
by the Board.
8. President.
The President shall have, subject to the control of the Board and the
Chairman of the Board, general and active supervision and direction over the
business and affairs of the Corporation and over its several officers. At the
request of the Chairman of the Board, or in case of his or her absence or
inability to act, the President shall perform the duties of the Chairman of the
Board and, when so acting, shall have all the powers of, and be subject to all
the restrictions upon, the Chairman of the Board. He may sign, with the
Secretary or an Assistant Secretary, certificates for stock of the Corporation.
He may sign, execute and deliver in the name of the Corporation all deeds,
mortgages, bonds, contracts or other instruments authorized by the Board, except
in cases where the signing, execution or delivery thereof is expressly delegated
by the Board or by these Bylaws to some other officer or agent of the
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Corporation or where any of them are required by law otherwise to be signed,
executed or delivered, and he may cause the corporate seal, if any, to be
affixed to any instrument which requires it. In general, the President shall
perform all duties incident to the office of the President and such other duties
as from time to time may be assigned to him or her by the Board or the Chairman
of the Board.
9. Vice Presidents.
Each Vice President shall have such powers and perform such duties as the
Chairman of the Board, the President or the Board of Directors may from time to
time prescribe and shall perform such other duties as may be prescribed by these
Bylaws. At the request of the President, or in case of his or her absence or
inability to act, the Vice Presidents, in such order of priority as may be
determined by the Board of Directors or the President, shall perform the duties
of the President and, when so acting, shall have all the powers of, and be
subject to all the restrictions upon, the President.
10. Secretary.
The Secretary shall: (a) record all the proceedings of the meetings of the
stockholders, the Board of Directors and the Executive Committee, if any, in one
or more books kept for that purpose; (b) see that all notices are duly given in
accordance with the provisions of these Bylaws or as required by law; (c) be the
custodian of all contracts, deeds, documents, all other indicia of title to
properties owned by the Corporation and of its other corporate records (except
accounting records) and of the corporate seal, if any, and affix such seal to
all documents the execution of which on behalf of the Corporation under its seal
is duly authorized; (d) sign, with the Chairman of the Board, the President or a
Vice President, certificates for stock of the Corporation; (e) have charge,
directly or through the transfer clerk or transfer clerks, transfer agent or
transfer agents and registrar or registrars appointed as provided in Section 3
of Article VII of these Bylaws, of the issue, transfer and registration of
certificates for stock of the Corporation and of the records thereof, such
records to be kept in such manner as to show at any time the amount of the stock
of the Corporation issued and outstanding, the manner in which and the time when
such stock was paid for, the names, alphabetically arranged, and the addresses
of the holders of record thereof, the number of shares held by each, and the
time when each became a holder of record; (f) upon request, exhibit or cause to
be exhibited at all reasonable times to any Director such records of the issue,
transfer and registration of the certificates for stock of the Corporation; (g)
see that the books, reports, statements, certificates and all other documents
and records required by law are properly kept and filed; and (h) see that the
duties prescribed by Section 6 of Article II of these Bylaws are performed. In
general, the Secretary shall perform all duties incident to the office of
Secretary and such other duties as from time to time may be assigned to him or
her by the Chairman of the Board, the President or the Board of Directors.
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11. Treasurer.
If required by the Board of Directors, the Treasurer shall give a bond for
the faithful discharge of his or her duties in such sum and with such surety or
sureties as the Board of Directors shall determine. The Treasurer shall: (a)
have charge and custody of, and be responsible for, all funds, securities, notes
and valuable effects of the Corporation; (b) receive and give receipt for moneys
due and payable to the Corporation from any sources whatsoever; (c) deposit all
such moneys to the credit of the Corporation or otherwise as the Board of
Directors, the Chairman of the Board or the President shall direct in such
banks, trust companies or other depositories as shall be selected in accordance
with the provisions of Article VI of these Bylaws; (d) cause such funds to be
disbursed by checks or drafts on the authorized depositories of the Corporation
signed as provided in Article VI of these Bylaws; (e) be responsible for the
accuracy of the amounts of, and cause to be preserved proper vouchers for, all
moneys so disbursed; (f) have the right to require from time to time reports or
statements giving such information as he or she may desire with respect to any
and all financial transactions of the Corporation from the officers or agents
transacting the same; (g) render to the Chairman of the Board, the President or
the Board, whenever they, respectively, shall request him or her so to do, an
account of the financial condition of the Corporation and of all his or her
transactions as Treasurer; and (h) upon request, exhibit or cause to be
exhibited at all reasonable times the cash books and other records to the
Chairman of the Board, the President or any of the Directors of the Corporation.
In general, the Treasurer shall perform all duties incident to the office of
Treasurer and such other duties as from time to time may be assigned to him or
her by the Chairman of the Board, the President or the Board of Directors.
12. Assistant Officers and Other Officers.
Any persons elected as assistant officers shall assist in the performance
of the duties of the designated office and such other duties as shall be
assigned to them by any Vice President, the Secretary or the Treasurer, as the
case may be, or by the Board of Directors, the Chairman of the Board, or the
President, and any other officers appointed from time to time by the Board of
Directors shall perform such duties as may be assigned to them by the Board of
Directors, the Chairman of the Board, the President, or such other officers as
the Board of Driectors may designate.
ARTICLE V
COMMITTEES
1. Executive Committee; How Constituted and Powers.
The Board of Directors, by resolution adopted by a majority of the whole
Board of Directors, may designate one or more of the Directors then in office,
who shall include the Chairman of the Board or the President (if the President
is a Director), to constitute an Executive Committee, which shall have and may
exercise between meetings of the Board of
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Directors all the delegable powers of the Board of Directors to the extent not
expressly prohibited by the Delaware General Corporation Law or by resolution of
the Board of Directors. The Board may designate one or more Directors as
alternate members of the Committee who may replace any absent or disqualified
member at any meeting of the Committee. Each member of the Executive Committee
shall continue to be a member thereof only during the pleasure of a majority of
the whole Board of Directors.
2. Executive Committee; Organization.
The Chairman of the Board shall act as chairman at all meetings of the
Executive Committee and the Secretary shall act as secretary thereof. In case of
the absence from any meeting of the Chairman of the Board or the Secretary, the
Committee may appoint a chairman or secretary, as the case may be, of the
meeting.
3. Executive Committee; Meetings.
Regular meetings of the Executive Committee may be held without notice on
such days and at such places as shall be fixed by resolution adopted by a
majority of the Committee and communicated to all its members. Special meetings
of the Committee shall be held whenever called by the Chairman of the Board or a
majority of the members thereof then in office. Notice of each special meeting
of the Committee shall be given in the manner provided in Section 6 of Article
III of these Bylaws for special meetings of the Board of Directors. Notice of
any such meeting of the Executive Committee, however, need not be given to any
member of the Committee if waived by him or her in writing or by telegraph,
cable, wireless or other form of recorded communication either before or after
the meeting, or if he or she is present at such meetings, except when he or she
attends for the express purpose of objecting to the transaction of any business
because the meeting is not lawfully called or convened. Subject to the
provisions of this Article V, the Committee, by resolution adopted by a majority
of the Committee, shall fix its own rules of procedure and it shall keep a
record of its proceedings and report them to the board at the next regular
meeting thereof after such proceedings have been taken. All such proceedings
shall be subject to revision or alteration by the Board of Directors; provided,
however, that third parties shall not be prejudiced by any such revision or
alteration.
4. Executive Committee; Quorum and Manner of Acting.
A majority of the Executive Committee shall constitute a quorum for the
transaction of business, and, except as specified in Section 3 of this Article
V, the act of a majority of those present at a meeting thereof at which a quorum
is present shall be the act of the Committee. The members of the Committee shall
act only as a committee, and the individual members shall have no power as such.
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5. Other Committees.
The Board of Directors, by resolution adopted by a majority of the whole
Board, may constitute other committees, which shall in each case consist of one
or more of the Directors and, at the discretion of the Board of Directors, such
officers who are not Directors. The Board of Directors may designate one or more
Directors or officers who are not Directors as alternate members of any
committee who may replace any absent or disqualified member at any meeting of
the committee. Each such committee shall have and may exercise such powers as
the Board of Directors may determine and specify in the respective resolutions
appointing them; provided, however, that (a) unless all of the members of any
committee shall be Directors, such committee shall not have authority to
exercise any of the powers of the Board of Directors in the management of the
business and affairs of the Corporation, and (b) if any committee shall have the
power to determine the amounts of the respective fixed salaries of the officers
of the Corporation or any of them, such committee shall consist of not less than
three (3) members and none of its members shall have any vote in the
determination of the amount that shall be paid to him or her as a fixed salary.
A majority of all the members of any such committee may fix its rules of
procedure, determine its action and fix the time and place of its meetings and
specify what notice thereof, if any, shall be given, unless the Board of
Directors shall otherwise by resolution provide.
6. Resignations.
Any member of the Executive Committee or any other committee may resign
therefrom at any time by giving written notice of his or her resignation to the
Chairman of the Board, the President or the Secretary. Any such resignation
shall take effect at the time specified therein, or if the time when it shall
become effective is not specified therein, it shall take effect immediately upon
its receipt by the Chairman of the Board, the President or the Secretary; and,
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
7. Vacancies.
Any vacancy in the Executive Committee or any other committee shall be
filled by the vote of a majority of the Board of Directors.
8. Compensation.
Unless otherwise expressly provided by resolution adopted by the Board of
Directors, no member of the Executive Committee or any other committee shall
receive any compensation for his or her services as a committee member. The
Board of Directors may at any time and from time to time by resolution provide
that committee members shall be paid a fixed sum for attendance at each
committee meeting or a stated salary as a committee member. In addition, the
Board of Directors may at any time and from time to time by resolution provide
that such committee members shall be paid their actual expenses, if any, of
attendance at each committee
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meeting. Nothing in this section shall be construed as precluding any committee
member from serving the Corporation in any other capacity and receiving
compensation therefor, but the Board of Directors may by resolution provide that
any committee member receiving compensation for his or her services to the
Corporation in any other capacity shall not receive additional compensation for
his or her services as a committee member.
9. Dissolution of Committees; Removal of Committee Members.
The Board of Directors, by resolution adopted by a majority of the whole
Board, may, with or without cause, dissolve the Executive Committee or any other
committee, and, with or without cause, remove any member thereof.
ARTICLE VI
MISCELLANEOUS
1. Execution of Contracts.
Except as otherwise required by law or by these Bylaws, any contract or
other instrument may be executed and delivered in the name of the Corporation
and on its behalf by the Chairman of the Board, the President, or any Vice
President. In addition, the Board of Directors may authorize any other officer
of officers or agent or agents to execute and deliver any contract or other
instrument in the name of the Corporation and on its behalf, and such authority
may be general or confined to specific instances as the Board of Directors may
by resolution determine.
2. Attestation.
Any Vice President, the Secretary, or any Assistant Secretary may attest
the execution of any instrument or document by the Chairman of the Board, the
President, or any other duly authorized officer or agent of the Corporation and
may affix the corporate seal, if any, in witness thereof, but neither such
attestation nor the affixing of a corporate seal shall be requisite to the
validity of any such document or instrument.
3. Checks, Drafts.
All checks, drafts, orders for the payment of money, bills of lading,
warehouse receipts, obligations, bills of exchange and insurance certificates
shall be signed or endorsed (except endorsements for collection for the account
of the Corporation or for deposit to its credit, which shall be governed by the
provisions of Section 5 of this Article VI) by such officer or officers or agent
or agents of the Corporation and in such manner as shall from time to time be
determined by resolution of the Board of Directors.
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4. Deposits.
All funds of the Corporation not otherwise employed shall be deposited
from time to time to the credit of the Corporation or otherwise as the Board of
Directors, the Chairman of the Board of Directors, or the President shall direct
in general or special accounts at such banks, trust companies, savings and loan
associations, or other depositories as the Board of Directors may select or as
may be selected by any officer or officers or agent or agents of the Corporation
to whom power in that respect has been delegated by the Board of Directors. For
the purpose of deposit and for the purpose of collection for the account of the
Corporation, checks, drafts and other orders for the payment of money which are
payable to the order of the Corporation may be endorsed, assigned and delivered
by any officer or agent of the Corporation. The Board of Directors may make such
special rules and regulations with respect to such accounts, not inconsistent
with the provisions of these Bylaws, as it may deem expedient.
5. Proxies in Respect of Stock or Other Securities of Other Corporations.
Unless otherwise provided by resolution adopted by the Board of Directors,
the Chairman of the Board of Directors, the President, or any Vice President may
exercise in the name and on behalf of the Corporation the powers and rights
which the Corporation may have as the holder of stock or other securities in any
other corporation, including without limitation the right to vote or consent
with respect to such stock or other securities.
6. Fiscal Year.
The fiscal year of the Corporation shall correspond with the calendar
year.
ARTICLE VII
STOCK
1. Certificates.
Every holder of stock in the Corporation shall be entitled to have a
certificate signed by or in the name of the Corporation by the Chairman of the
Board of Directors, the President, or a Vice President and by the Secretary or
an Assistant Secretary. The signatures of such officers upon such certificate
may be facsimiles if the certificate is signed, manually or by facsimile
signature, by a transfer agent or registered by a registrar, other than the
Corporation itself or one of its employees. If any officer who has signed or
whose facsimile signature has been placed upon a certificate has ceased for any
reason to be such officer prior to issuance of the certificate, the certificate
may be issued with the same effect as if that person were such officer at the
date of issue. All certificates for stock of the Corporation shall be
consecutively numbered, shall state the number of shares represented thereby and
shall otherwise be in such form as shall be determined by the Board of
Directors, subject to such requirements as are imposed by the Delaware General
Corporation Law. The names and addresses of the persons
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to whom the shares represented by certificates are issued shall be entered on
the stock transfer books of the Corporation, together with the number of shares
and the date of issue, and in the case of cancellation, the date of
cancellation. Certificates surrendered to the Corporation for transfer shall be
canceled, and no new certificate shall be issued in exchange for such shares
until the original certificate has been canceled; except that in the case of a
lost, stolen, destroyed or mutilated certificate, a new certificate may be
issued therefor upon such terms and indemnity to the Corporation as the Board of
Directors may prescribe.
2. Transfer of Stock.
Transfers of shares of stock of the Corporation shall be made only on the
stock transfer books of the Corporation by the holder of record thereof or by
his or her legal representative or attorney in fact, who shall furnish proper
evidence of authority to transfer to the Secretary, or a transfer clerk or a
transfer agent, and upon surrender of the certificate or certificates for such
shares properly endorsed and payment of all taxes thereon. The person in whose
name shares of stock stand on the books of the Corporation shall be deemed the
owner thereof for all purposes as regards the Corporation.
3. Regulations.
The Board of Directors may make such rules and regulations as it may deem
expedient, not inconsistent with these Bylaws, concerning the issue, transfer
and registration of certificates for stock of the Corporation. The Board of
Directors may appoint, or authorize any officer or officers or any committee to
appoint, one or more transfer clerks or one or more transfer agents and one or
more registrars, and may require all certificates for stock to bear the
signature or signatures of any of them.
ARTICLE VIII
DIVIDENDS
The Board of Directors may from time to time declare, and the Corporation
may pay, dividends on its outstanding shares of stock in the manner and upon the
terms and conditions provided in the Delaware General Corporation Law.
ARTICLE IX
SEAL
A corporate seal shall not be requisite to the validity of any instrument
executed by or on behalf of the Corporation. Nevertheless, if in any instance a
corporate seal is used, the same shall be in the form of a circle and shall bear
the full name of the Corporation and the year and state of incorporation, or
words and figures of similar import.
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ARTICLE X
INDEMNIFICATION OF DIRECTORS AND OFFICERS
1. General.
The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
2. Derivative Actions.
The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation and except that no 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.
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3. Indemnification in Certain Cases.
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 Sections 1 and 2 of this Article X, or
in defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection therewith.
4. Procedure.
Any indemnification under Sections 1 and 2 of this Article X (unless
ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in such Sections 1 and 2. Such
determination shall be made (a) by the Board of Directors by a majority vote of
a quorum consisting of directors who were not parties to such action, suit or
proceeding, or (b) if such a quorum is not obtainable, or, even if obtainable a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (c) by the stockholders.
5. Advances for Expenses.
Expenses incurred by a director, officer, employee, or agent of the
Corporation in defending a civil or criminal action, suit or proceeding shall be
paid promptly 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 the
director, officer, employee or agent to repay such amount if it shall be
ultimately determined that he is not entitled to be indemnified by the
Corporation as authorized in this Article X.
6. Rights Not Exclusive.
The indemnification and advancement of expenses provided by or granted
pursuant to, the other Sections of this Article X shall not be deemed exclusive
of any other rights to which those seeking indemnification may be entitled under
any law, by-law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office.
7. Insurance.
The Corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
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whether or not the Corporation would have the power to indemnify him against
such liability under the provisions of this Article X.
8. Definition of Corporation.
For the purposes of this Article X, references to "the Corporation"
include, in addition to the resulting corporation, all constituent corporations
(including any constituent of a constituent) absorbed in consolidation or merger
which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, employees and agents so that any
person who is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, shall stand in the same position under
the provisions of this Article X with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if its
separate existence had continued.
9. Other Definitions.
For purposes of this Article X, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the Corporation" shall include any
service as a director, officer, employee or agent of the Corporation which
imposes duties on, or involves services by, such director, officer, employee, or
agent with respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as referred to in this Article
X.
10. Continuation of Rights.
The indemnification and advancement of expenses provided by, or granted
pursuant to this Article X shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such person. No amendment to or repeal of
this Article X shall apply to or have any effect on, the rights of any director,
officer, employee or agent under this Article X which rights come into existence
by virtue of acts or omissions of such director, officer, employee or agent
occurring prior to such amendment or repeal.
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ARTICLE XI
AMENDMENTS
These Bylaws may be repealed, altered or amended by the affirmative vote
of the holders of a majority of the stock issued and outstanding and entitled to
vote at any meeting of Stockholders or by resolution duly adopted by the
affirmative vote of not less than a majority of the Directors in office at any
annual or regular meeting of the Board of Directors or at any special meeting of
the Board of Directors if notice of the proposed repeal, alteration or amendment
be contained in the notice of such special meeting, and new Bylaws may be
adopted, at any time only by the Board of Directors.
ADOPTED by the Board of Directors of the Corporation at Youngstown, Ohio,
as of February 21, 1997.
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