SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
_________________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
_________________
Date of Report: May 19, 2003
(Date of earliest event reported)
REFAC
(Exact Name of Registrant as Specified in Charter)
Delaware 0-7704 13-1681234
(State or Other Jurisdiction of (Commission File (IRS Employer Identification
Incorporation) Number) No.)
One Bridge Plaza, Suite 605, Fort Lee, New Jersey 07024-7201
(Address of Principal Executive Offices)
(201) 585-0600
(Registrant's telephone number, including area code)
Item 5. Other events
On May 19, 2003, the registrant issued and sold 3,469,387 shares of
its common stock to Palisade Concentrated Equity Partnership, L.P.
("Palisade"), at a price of $4.90 per share, or an aggregate price of $17
million, pursuant to the Stock Purchase Agreement, dated as of March 28, 2003,
by and among the registrant and Palisade. Attached hereto as Exhibit 99.1 is a
press release issued by the registrant regarding such transaction.
On May 19, 2003, the registrant's Board of Directors voted to amend
and restate the registrant's by-laws. Attached hereto as Exhibit 3.1 are the
amended and restated by-laws of the registrant.
SIGNATURE
Pursuant to the requirements of the Securities and Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
REFAC
Date: May 19, 2003 By: /s/ Robert L. Tuchman
--------------------------
Robert L. Tuchman
Chief Executive Officer, President and General Counsel
EXHIBITS
3.1 Amended and Restated By-Laws of Refac.
99.1 Press release issued on May 19, 2003 by Refac.
ADOPTED MAY 19, 2003
AMENDED AND RESTATED
BY-LAWS
OF
REFAC
ARTICLE 1
OFFICES
1.1 Registered Office. The registered office of the Corporation in the
State of Delaware shall be located at the principal place of business in such
state of the corporation or individual acting as the Corporation's registered
agent in Delaware.
1.2 Other Offices. In addition to its registered office in the State of
Delaware, the Corporation may have an office or offices in such other places
as the Board of Directors may from time to time designate or the business of
the Corporation may require.
ARTICLE 2
MEETING OF STOCKHOLDERS
2.1 Time and Place. All meetings of the stockholders of the Corporation
shall be held at such time and place, either within or without the State of
Delaware, as shall be stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
2.2 Annual Meeting. The annual meeting of stockholders of the Corporation
shall be held at such date, time and place, either within or without the State
of Delaware, as shall be determined by the Board of Directors and stated in
the notice of meeting.
2.3 Special Meetings of Stockholders. Special meetings of stockholders
for any purpose or purposes if not otherwise prescribed by statute or by the
Certificate of Incorporation, may be called by the Board of Directors, the
President, or the Secretary and shall be called by the President or Secretary
at the request of stockholders owning a majority of the shares of capital
stock of the Corporation issued and outstanding and entitled to vote at a
meeting of stockholders. Such request shall state the purpose or purposes of
the proposed meeting. The time of any such special meeting shall be fixed by
the officer calling the meeting and shall be stated in the notice of such
meeting, which notice shall specify the purpose or purposes thereof. Business
transacted at any special meeting shall be confined to the purposes
stated in the notice of meeting and matters germane thereto.
2.4 Notice of Meetings. Notice of the time and place of every annual or
special meeting of the stockholders shall be given not less than ten nor more
than sixty days before the date of the meeting to each stockholder entitled to
vote at such meeting, in the manner prescribed by Section 6.1 of these
By-Laws, except that where the matter to be acted upon is a merger or
consolidation of the Corporation, or a sale, lease or exchange of all or
substantially all of its assets, such notice shall be given not less than
twenty nor more than sixty days prior to such meeting.
2.5 Quorum and Adjournment of Meetings. The holders of at least 55% of
the shares of capital stock issued and outstanding and entitled to vote
thereat, present in person, or represented by proxy, shall be requisite and
shall constitute a quorum at all meetings of the stockholders for the
transaction of business, except as otherwise provided by the Certificate of
Incorporation. If the holders of the requisite number of shares shall not be
present in person or represented by proxy at any meeting of the stockholders
at which action is to be taken by the stockholders, the stockholders entitled
to vote thereat, present in person or represented by proxy, shall have power
to adjourn the meeting from time to time without notice other than
announcement at the meeting, until holders of the requisite number of shares
of stock entitled to vote shall be present or represented by proxy. At such
adjourned meeting at which such holders of the requisite number of shares of
capital stock shall be present or represented by proxy, any business may be
transacted which might have been transacted at the meeting as originally
called. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
adjourned meeting shall be given to each stockholder of record entitled to
vote thereat.
2.6 Vote Required. At any meeting of stockholders, directors shall be
elected by a plurality of votes, and all other matters shall be decided by a
vote of the holders of at least 55% of the shares of capital stock issued and
outstanding, cast by the stockholders present in person or represented by
proxy and entitled to vote, unless the matter is one for which, by express
provisions of statute, of the Certificate of Incorporation or of these
By-Laws, a different vote is required, in which case such express provision
shall govern and control the determination of such matter.
2.7 Voting. At any meeting of the stockholders, each stockholder having
the right to vote shall be entitled to vote in person or by proxy. To
determine the stockholders entitled to notice of or to vote at any meeting of
the stockholders or any adjournment thereof, the Board of Directors may fix,
in advance, a record date which shall be not more than sixty days nor less
than ten days before the date of such meeting. Except as otherwise provided by
the Certificate of Incorporation or by statute, each stockholder of record
shall be entitled to one vote for each outstanding share of capital stock
standing in his or her name on the books of the Corporation as of the record
date. A complete list of the stockholders entitled to vote at any meeting of
stockholders arranged in alphabetical order with the address of each and the
number of shares held by each, shall be prepared by the Secretary. Such list
shall be open to the examination of any stockholder for any purpose germane to
the meeting during ordinary business hours for a period of at least ten days
prior to the meeting, at the locations specified by the Delaware General
Corporation Law. The list shall also be produced and kept at the time and
place of the meeting during the whole time thereof, and may be inspected by
any stockholder who is present.
2.8 Proxies. Each proxy shall be in writing executed by the stockholder
giving the proxy or his or her duly authorized attorney. No proxy shall be
valid after the expiration of three years from its date, unless a longer
period is provided for in the proxy. Unless and until voted, every proxy shall
be revocable at the pleasure of the person who executed it or his or her legal
representatives or assigns, except in those cases where an irrevocable proxy
permitted by statute has been given.
2.9 Consents. The provision of these By-Laws covering notices and
meetings to the contrary notwithstanding, any action required or permitted to
be taken at any meeting of stockholders may be taken without a meeting,
without prior notice and without a vote, if a consent in writing setting forth
the action so taken shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would have been necessary to
authorize or take such action at a meeting at which all shares of stock
entitled to vote thereon were present and voted. Where corporate action is
taken in such manner by less than unanimous written consent, prompt written
notice of the taking of such action shall be given to all stockholders who
have not consented in writing thereto and who, if the action had been taken at
a meeting, would have been entitled to notice of the meeting.
ARTICLE 3
DIRECTORS
3.1 Board of Directors. The business and affairs of the Corporation shall
be managed by a Board of Directors. The Board of Directors may exercise all
such powers of the Corporation and do all such lawful acts and things on its
behalf as are not by statute or by the Certificate of Incorporation or by
these By-Laws directed or required to be exercised or done by the
stockholders.
3.2 Number; Election and Tenure. The number of directors shall be fixed
initially by the incorporator of the Corporation and thereafter such number
may be increased from time to time by the stockholders or by the Board of
Directors or may be decreased by the stockholders. Except as provided by law
or these By-Laws, directors shall be elected each year at the annual meeting
of stockholders. The directors of the Corporation shall be divided into three
classes, with each class to be as nearly equal in number as reasonably
possible, and with the initial term of office of the first class of
directors to expire at the annual meeting of stockholders next ensuing, the
initial term of office of the second class of directors to expire one year
thereafter and the initial term of office of the third class of directors to
expire two years thereafter, in each case upon the election and qualification
of their successors. Commencing with the 2003 annual meeting of stockholders,
directors elected to succeed those directors whose terms have thereupon expired
shall be elected to a term of office to expire at the third succeeding annual
meeting of stockholders after their election, and upon the election and
qualification of their successors. If the number of directors is changed,
any increase or decrease shall be apportioned among the classes so as to
maintain or attain the number of directors in each class as nearly equal as
reasonably possible, but in no case will a decrease in the number of directors
shorten the term of any incumbent director.
3.3 Resignation and Removal. A director may resign at any time by giving
written notice to the Board of Directors or to the President of the
Corporation. Such resignation shall take effect upon receipt thereof by the
Board of Directors or by the President, unless otherwise specified therein.
Any one or more of the directors may be removed for cause at any time by the
affirmative vote of a majority of the then existing shares outstanding at any
meeting of the stockholders called for such purpose.
3.4 Vacancies. A vacancy occurring for any reason and newly created
directorships resulting from an increase in the authorized number of directors
may be filled by the vote of a majority of the directors then in office,
although less than a quorum, or by the sole remaining director, or by the
stockholders.
3.5 Compensation. Each director shall receive for services rendered as a
director of the Corporation such compensation as may be fixed by the Board of
Directors. Nothing herein contained shall be construed to preclude any
director from serving the Corporation in any other capacity and receiving
compensation therefor.
ARTICLE 4
MEETINGS OF THE BOARD
4.1 Time and Place. Meetings of the Board of Directors shall be held at
such places, within or without the State of Delaware, and within or without
the United States of America, as shall be determined in accordance with these
By-Laws.
4.2 Annual Meeting. Immediately after and at the place of the annual
meeting of the stockholders, or at such other place as the Board of Directors
may designate, a meeting of the newly elected Board of Directors for the
purpose of organization and the election of officers and otherwise may be
held. Such meeting may be held without notice.
4.3 Regular Meetings. Regular meetings of the Board of Directors may be
held without notice, at such time and place as shall, from time to time, be
determined by the Board of Directors.
4.4 Special Meetings. Special meetings of the Board of Directors may be
held at any time and place as shall be determined by resolution of the Board
of Directors or upon the call of the President, the Secretary, or any member
of the Board of Directors on two days notice to each director by mail or on
one day's notice personally or by telecopy, telephone or telegraph. Meetings
of the Board of Directors may be held at any time without notice if all the
directors are present, or if those not present waive notice of the meeting in
writing, either before or after the meeting.
4.5 Quorum and Voting. A majority of the entire Board of Directors shall
constitute a quorum at any meeting of the Board of Directors and the act of a
majority of the directors shall be the act of the Board of Directors, except
as may otherwise be specifically provided by law, the Certificate of
Incorporation or by these By-Laws. If at any meeting of the Board of Directors
there shall be less than a quorum present, the director or directors present
thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall have been obtained.
4.6 Consents. Any action required or permitted to be taken at any meeting
of the Board of Directors may be taken without a meeting if all members of the
Board of Directors consent to such action in writing, and such writing or
writings are filed with the minutes of the proceedings of the Board of
Directors.
4.7 Telephonic Meetings of Directors. The Board of Directors may
participate in a meeting by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other. Participation by such means shall constitute
presence in person at such meeting.
ARTICLE 5
COMMITTEES OF THE BOARD
5.1 Designation and Powers. The Board of Directors may in its discretion
designate one or more committees. Each committee shall consist of one or more
of the directors of the Corporation. Such committee or committees shall have
duties and powers not inconsistent with the laws of the State of Delaware, the
Certificate of Incorporation, these By-Laws, and the respective resolution or
resolutions of the Board of Directors.
ARTICLE 6
NOTICES
6.1 Delivery of Notices. Notices to directors and stockholders shall be
in writing and may be delivered personally or by mail. Notice by mail shall be
deemed to be given at the time when deposited in the United States mail,
postage prepaid, and addressed to directors or stockholders at their
respective addresses appearing on the books of the Corporation, unless any
such director or stockholder shall have filed with the Secretary of the
Corporation a written request that notices intended for him or her be mailed
or delivered to some other address, in which case the notice shall be mailed
to or delivered at the address designated in such request. Notice to directors
may also be given by telegram or by telecopy.
6.2 Waiver of Notice. Whenever notice is required to be given by statute,
the Certificate of Incorporation or these By-Laws, a waiver thereof in writing,
signed by the person or persons entitled to such notice whether before or
after the time stated therein, shall be deemed equivalent to the giving of
such notice. Attendance of a person at a meeting of stockholders, directors or
any committee of directors, as the case may be, shall constitute a waiver of
notice of such meeting, except where the person is attending for the express
purpose of objecting, at the beginning of the meeting, to the transaction of
any business because the meeting is not lawfully called or convened. Neither
the business to be transacted at, nor the purpose of, any regular or special
meeting of stockholders, directors or committee of directors need be specified
in any written waiver of notice.
ARTICLE 7
CHAIRMAN OF THE BOARD and EXECUTIVE OFFICERS
7.1 Chairman of the Board and Executive Officers. At the annual meeting
of directors the Board of Directors shall elect a Chairman of the Board (which
may be an executive or non-executive position, as determined by the Board of
Directors), President, Secretary and Treasurer and may elect one or more Vice
Presidents, Assistant Secretaries or Assistant Treasurers and such other
officers as the Board of Directors may from time to time designate or the
business of the Corporation may require. Except for the Chairman of the Board,
no executive officer need be a member of the Board. Any number of offices may
be held by the same person, except that the office of Secretary may not be
held by the Chairman of the Board or the President.
7.2 Other Officers and Agents. The Board of Directors may also elect such
other officers and agents as the Board of Directors may at any time or from
time to time determine to be advisable, such officers and such agents to serve
for such terms and to exercise such powers and perform such duties as shall be
specified at any time or from time to time by the Board of Directors.
7.3 Tenure; Resignation; Removal; Vacancies. The Chairman of the Board
and each officer of the Corporation shall hold office until his or her
successor is elected and qualified, or until his or her earlier resignation or
removal; provided, that if the term of office of any officer elected or
appointed pursuant to Section 7.2 of these By-Laws shall have been fixed by
the Board of Directors, he or she shall cease to hold such office no later
than the date of expiration of such term regardless of whether any other
person shall have been elected or appointed to succeed him or her. The
Chairman of the Board or any officer elected by the Board of Directors may be
removed at any time, with or without cause, by the Board of Directors;
provided, that any such removal shall be without prejudice to the rights, if
any, of the officer so employed under any employment contract or other
agreement with the Corporation. The Chairman of the Board or any officer may
resign at any time upon written notice to the Board of Directors. If the
office of the Chairman of the Board or any officer becomes vacant by reason of
death, resignation, retirement, disqualification, removal from office or
otherwise, the Board of Directors may choose a successor or successors to hold
office for such term as may be specified by the Board of Directors.
7.4 Compensation. Except as otherwise provided by these By-Laws, the
salaries of the Chairman of the Board, if an executive, and all officers and
agents of the Corporation appointed by the Board of Directors shall be fixed
by the Board of Directors.
7.5 Authority and Duties. The Chairman of the Board and all officers as
between themselves and the Corporation, shall have such authority and perform
such duties in the management of the Corporation as may be provided in these
By-Laws. In addition to the powers and duties hereinafter specifically
prescribed for the Chairman of the Board and the respective officers, the
Board of Directors may from time to time impose or confer upon any of the
officers such additional duties and powers as the Board of Directors may see
fit, and the Board of Directors may from time to time impose or confer any or
all of the duties and powers hereinafter specifically prescribed for any
officer upon any other officer or officers.
7.6 Chairman of the Board. The Chairman of the Board of Directors, who
shall be a director, shall preside at all meetings of the stockholders and at
all meetings of the Board of Directors. He or she shall perform such other
duties as may be assigned from time to time by the Board of Directors.
7.7 President. The President shall be the chief executive officer of the
Corporation. He or she shall perform such duties as may be assigned to him or
her by the Board of Directors, and in the event of disability or absence of
the Chairman of the Board, perform the duties of the Chairman of the Board,
including presiding at meetings of stockholders and directors. He or she shall
from time to time report to the Board of Directors all matters within his or
her knowledge which the interest of the Corporation may require to be brought
to their notice, and shall also have such other powers and perform such other
duties as may be specifically assigned to him or her from time to time by the
Board of Directors. The President shall see that all resolutions and orders of
the Board of Directors are carried into effect, and in connection with the
foregoing, shall be authorized to delegate to the Vice President and the other
officers such of his or her powers and such of his or her duties as he or she
may deem to be advisable.
7.8 The Vice President(s). The Vice President, or if there be more than
one, the Vice Presidents, shall perform such duties as may be assigned to them
from time to time by the Board of Directors or as may be designated by the
President. In case of the absence or disability of the President the duties of
the office shall, if the Board of Directors or the President has so
authorized, be performed by the Vice President, or if there be more than one
Vice President, by such Vice President as the Board of Directors or President
shall designate.
7.9 The Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all
monies and other valuable effects in the name and to the credit of the
Corporation, in such depositories as may be designated by the Board of
Directors or by any officer of the Corporation authorized by the Board of
Directors to make such designation. The Treasurer shall exercise such powers
and perform such duties as generally pertain or are necessarily incident to
his or her office and shall perform such other duties as may be specifically
assigned to him or her from time to time by the Board of Directors or by the
President or any Vice President.
7.10 The Secretary. The Secretary shall attend all meetings of the Board
of Directors and all meetings of the stockholders and record all votes and the
minutes of all proceedings in a book to be kept for that purpose; and shall
perform like duties for any committee when required. He or she shall give, or
cause to be given, notice of all meetings of the stockholders and, when
necessary, of the Board of Directors. The Secretary shall exercise such powers
and perform such duties as generally pertain or are necessarily incident to
his or her office and he or she shall perform such other duties as may be
assigned to him or her from time to time by the Board of Directors, the
President or by any Vice President.
ARTICLE 8
CERTIFICATES OF STOCK
8.1 Form and Signature. The certificates of stock of the Corporation
shall be in such form or forms not inconsistent with the Certificate of
Incorporation as the Board of Directors shall approve. They shall be numbered,
the certificates for the shares of stock of each class to be numbered
consecutively, and shall be entered in the books of the Corporation as they
are issued. They shall exhibit the holder's name and number of shares and
shall be signed by the President or a Vice President and the Treasurer (or any
Assistant Treasurer) or the Secretary (or any Assistant Secretary); provided,
however, that where any such certificate is signed by a transfer agent or an
assistant transfer agent, or by a transfer clerk acting on behalf of the
Corporation, and registered by a registrar, the signature of any such
President, Vice President, Treasurer, Assistant Treasurer, Secretary or
Assistant Secretary, may be a facsimile. In case any officer or officers who
shall have signed, or whose facsimile signature or signatures shall have been
used on any such certificate or certificates, shall cease to be such officer
or officers of the Corporation, whether because of death, resignation, removal
or otherwise, before such certificate or certificates shall have been
delivered by the Corporation, such certificate or certificates may
nevertheless be issued and delivered as though the person or persons who
signed such certificate or certificates, or whose facsimile signature or
signatures shall have been used thereon, had not ceased to be such officer or
officers of the Corporation.
8.2 Lost or Destroyed Certificates. The Board of Directors may direct a
new certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost
or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate or stock to be lost or destroyed. When authorizing
such issue of a new certificate or certificates, the Board of Directors may in
its discretion and as a condition precedent to the issuance thereof, require
the owner of such lost or destroyed certificate or certificates, or his or her
legal representatives, to advertise the same in such manner as it shall
require, and to give a bond in such sum as the Board of Directors may direct,
indemnifying the Corporation, any transfer agent and any registrar against any
claim that may be made against them or any of them with respect to the
certificate alleged to have been lost or destroyed.
8.3 Registration of Transfer. Upon surrender to the Corporation of a
certificate for shares, duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, the Corporation shall issue a
new certificate to the person entitled thereto, cancel the old certificate,
and record the transaction on its books.
ARTICLE 9
GENERAL PROVISIONS
9.1 Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, or entitled to express consent to corporate action
in writing without a meeting, or entitled to receive payment of any dividend
or other distribution or allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock, or for the
purpose of any other lawful action, the Board of Directors may fix, in
advance, a record date, which shall not be more than sixty nor less than ten
days before the date of such meeting, nor more than sixty days prior to any
other action.
9.2 Registered Stockholders. The Corporation shall be entitled to treat
the holder of record of any share or shares of stock as the holder in fact
thereof and accordingly shall not be bound to recognize any equitable or other
claim to or interest in such share on the part of any other person, whether or
not it shall have express or other notice thereof, save as expressly provided
by the laws of the State of Delaware.
9.3 Dividends. Dividends upon the capital stock of the Corporation shall
in the discretion of the Board of Directors from time to time be declared by
the Board of Directors out of funds legally available therefor after setting
aside of proper reserves.
9.4 Checks and Notes. All checks and drafts on the bank accounts of the
Corporation, all bills of exchange and promissory notes of the Corporation,
and all acceptances, obligations and other instruments for the payment of
money drawn, signed or accepted by the Corporation, shall be signed or
accepted, as the case may be, by such officer or officers, agent or agents as
shall be thereunto authorized from time to time by the Board of Directors or
by officers of the Corporation designated by the Board of Directors to make
such authorization.
9.5 Fiscal Year. The fiscal year of the Corporation shall be fixed by the
Board of Directors.
9.6 Voting of Securities of Other Corporations. In the event that the
Corporation shall at any time own and have power to vote any securities
(including but not limited to shares of stock) of any other issuer, such
securities shall be voted by such person or persons, to such extent and in
such manner, as may be determined by the Board of Directors.
9.7 Transfer Agent. The Board of Directors may make such rules and
regulations as it may deem expedient concerning the issue, transfer and
registration of stock. It may appoint one or more transfer agents and one or
more registrars and may require all stock certificates to bear the signature
of either or both.
9.8 Corporate Seal. The corporate seal shall have inscribed thereon the
name of the Corporation and the words "Corporate Seal, Delaware".
ARTICLE 10
INDEMNIFICATION
10.1 Indemnification.
(a) Actions, Suits or Proceedings Other Than by or in the Right of the
Corporation. The Corporation shall indemnify any current or former director or
officer of the Corporation and may, at the discretion of the Board of
Directors, indemnify any current or former employee or agent of the
Corporation who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Corporation) by reason of the fact that such person is or was a
director, officer, employee or agent of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent
(including trustee) of another corporation, partnership, joint venture, trust
or other enterprise (including employee benefit plans) (funds paid or required
to be paid to any person as a result of the provisions of this Section 10.1
shall be returned to the Corporation or reduced, as the case may be, to the
extent that such person receives funds pursuant to an indemnification from any
such other corporation, partnership, joint venture, trust or enterprise) to the
fullest extent permissible under Delaware law, as then in effect, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding, if he or she acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe that his or her conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person seeking
indemnification did not act in good faith and in a manner which he or she
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe that his or her conduct was unlawful.
(b) Actions or Suits by or in the Right of the Corporation. The
Corporation shall indemnify any current or former director or officer of the
Corporation and may, at the discretion of the Board of Directors, indemnify
any current or former employee or agent of the Corporation who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit, by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that such person is or was a
director, officer, employee or agent of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent
(including trustee) of another corporation, partnership, joint venture, trust
or other enterprise (including employee benefit plans) (funds paid or required
to be paid to any person as a result of the provisions of this Section 10.1
shall be returned to the Corporation or reduced, as the case may be, to the
extent that such person receives funds pursuant to an indemnification from any
such other corporation, partnership, joint venture, trust or enterprise) to
the fullest extent permitted under Delaware law, as then in effect, against
expenses (including attorneys' fees) actually and reasonably incurred by such
person in connection with the defense or settlement of such action or suit, if
he or she acted in good faith and in a manner he or she reasonably believed to
be in or not opposed to the best interests of the Corporation, except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery of the State of
Delaware or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of
all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
(c) Indemnification for Expenses of Successful Party. To the extent that
a director, officer, employee or agent of the Corporation has been successful
on the merits or otherwise in defense of any action, suit or proceeding
referred to in paragraph (a) or (b) of this Section 10.1, or in defense of any
claim, issue or matter therein, such person shall be indemnified by the
Corporation against expenses (including attorneys' fees) actually and
reasonably incurred by him or her in connection therewith.
(d) Determination of Right to Indemnification. Any indemnification under
paragraph (a) or (b) of this Section 10.1 (unless ordered by a court) shall be
made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee or agent
is proper in the circumstances because such person has met the applicable
standard of conduct set forth in paragraphs (a) and (b) of this Section 10.1.
Such determination shall be made (1) by the Board of Directors by a majority
vote of the directors who are not parties to such action, suit or proceeding,
even though less than a quorum or (2) if there are no such directors, or if
such directors so direct, by independent legal counsel in a written opinion,
or (3) by the holders of a majority of the shares of capital stock of the
Corporation entitled to vote thereon.
(e) Advancement of Expenses. Expenses (including attorneys' fees)
incurred by an officer or director in defending any civil, criminal,
administrative or investigative action, suit or proceeding shall be paid by
the Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that such
person is not entitled to be indemnified by the Corporation as authorized in
this Section 10.1. Such expenses (including attorneys' fees) incurred by other
employees and agents may be so paid upon such terms and conditions, if any, as
the Board of Directors deems appropriate.
(f) Other Rights. The indemnification and advancement of expenses
provided by, or granted pursuant to, the other paragraphs of this Section 10.1
shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any By-Law,
agreement, vote of stockholders or disinterested directors or otherwise, both
as to action in an official capacity and as to action in another capacity
while holding such office.
(g) Insurance. By action of the Board of Directors, notwithstanding an
interest of the directors in the action, the Corporation may purchase and
maintain insurance, in such amounts as the Board of Directors deems
appropriate, on behalf of any person who is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee or agent (including trustee)
of another corporation, partnership, joint venture, trust or other enterprise
(including employee benefit plans), against any liability asserted against
such person and incurred by such person in any such capacity, or
arising out of such person's status as such, whether or not the Corporation
shall have the power to indemnify such person against such liability under the
provisions of this Section 10.l.
(h) Continuation of Rights to Indemnification. The indemnification and
advancement of expenses provided by, or granted pursuant to, this Section 10.1
shall, unless otherwise provided when authorized or ratified, continue as to a
person who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the heirs, executors and administrators of such a
person.
(i) Protection of Rights Existing at Time of Repeal or Modification. Any
repeal or modification of this Section 10.1 shall not adversely affect any
right or protection of an indemnified person existing at the time of such
repeal or modification.
ARTICLE 11
AMENDMENTS
11.1 By the Stockholders. These By-Laws may be altered, amended or
repealed in whole or in part, and new By-Laws may be adopted, by the
affirmative vote of the holders of a majority of the shares of capital stock
issued and outstanding and entitled to vote at any annual or special meeting
of the stockholders, if notice thereof shall be contained in the notice of the
meeting.
11.2 By the Board of Directors. These By-Laws may be altered, amended or
repealed by the Board of Directors at any regular or special meeting of the
Board of Directors if notice thereof shall be contained in the notice of the
meeting.
EXHIBIT 99.1
REFAC ANNOUNCES CLOSING OF
STOCK PURCHASE AGREEMENT WITH PALISADE
AND THE RESULTS OF ANNUAL MEETING OF STOCKHOLDERS
Fort Lee, New Jersey, May 19, 2003 -- Refac (AMEX: REF) and Palisade
Concentrated Equity Partnership, L.P. ("Palisade") today jointly announced the
closing of their previously announced stock purchase transaction pursuant to
which Palisade acquired 3,469,387 new shares of Refac's common stock, at a
price of $4.90 per share, or an aggregate price of $17 million. Palisade,
which now owns approximately 90% of Refac's outstanding shares of common
stock, intends to use Refac as a vehicle for making acquisitions. The purpose
of the stock purchase transaction is to provide Refac with additional capital
for making these acquisitions.
"We are pleased to announce the closing of the stock purchase
transaction with Palisade." said Melvin Meskin, Chairman of Refac's Board of
Directors. "Our acquisition search should benefit from the significant
additional capital resources made available through this stock purchase and
should enable us to pursue more meaningful acquisitions. We look forward to
announcing our future business plans as soon as they are available."
Refac also announced that at its Annual Meeting of Stockholders held
earlier today, Clark A. Johnson and Mark N. Kaplan were re-elected to serve
three-year terms as Class 1 directors and that its stockholders approved and
adopted the Company's 2003 Stock Incentive Plan.
* * * * *
CAUTIONARY STATEMENT REGARDING
FORWARD-LOOKING STATEMENTS
This News Release statement includes certain statements of the
Company that may constitute "forward-looking statements" within the meaning of
Section 27A of the Securities Act of 1933, as amended, and Section 21E of the
Securities Exchange Act of 1934, as amended, and which are made pursuant to
the Private Securities Litigation Reform Act of 1995. These forward-looking
statements and other information relating to the Company are based upon the
beliefs of management and assumptions made by and information currently
available to the Company. Forward-looking statements include statements
concerning plans, objectives, goals, strategies, future events, or performance,
as well as underlying assumptions and statements that are other than statements
of historical fact, including statements regarding completion of the proposed
merger. When used in this document, the words "expects," "anticipates,"
"estimates," "plans," "intends," "projects," "predicts," "believes," "may"
or "should," and similar expressions, are intended to identify forward-looking
statements. These statements reflect the current view of the Company's
management with respect to future events. Many factors could cause the actual
results, performance or achievements of the Company to be materially different
from any future results, performance, or achievements that may be expressed
or implied by such forward-looking statements.
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