Great News--the BS may be ending
from 13 D filed today
"Item 4. Purpose of Transaction
On April 22, 1998, the Court issued a declaratory judgment holding that
the holders of the Exchangeable Preferred Stock were entitled to elect two Class
D Directors. In support of that holding, the Court issued an injunction
preventing the Issuer from interfering with the right of VP (through Cede) to
elect the two Class D directors to the Issuer's board of directors and ordered
the Issuer to comply with Maryland law requiring the Issuer to provide to VP a
copy of its list of the holders of the Exchangeable Preferred Stock. The Court
ordered that the parties work to agree on the preparation of a final order of
the Court to be submitted to the Court on or before 5:00 p.m. Friday, May 1,
1998.
In its Memorandum Opinion, the Court found the Issuer's argument that
dividends must be "legally capable of being paid" before they are payable to be
"nonsensical," that the views of the Issuer's general counsel amounted to "no
more than the opinion testimony of a partisan lawyer" and that "the public
interest is served by the issuance of the injunction." In short, the Court found
that both the intrinsic and extrinsic evidence pointed "persuasively, if not
conclusively" to the conclusion that the dividends on the Exchangeable Preferred
Stock are due and thus the holders of the Exchangeable Preferred Stock have the
right to elect two directors whenever dividends are not paid for the requisite
period "for whatever reason..." A copy of the Court's Order and its Memorandum
Opinion are attached hereto as Exhibit A.
VP currently intends to do one or more of the following: (i) have its
litigation counsel provide to the Court a final order setting forth the specific
parameters of the special meeting to be held by the Issuer to elect two Class D
directors; (ii) vote its shares of the Exchangeable Preferred Stock in favor of
one or more of its (or other) nominees for the Class D director positions; (iii)
enter into discussions with the Issuer with respect to its rights as a holder of
the Exchangeable Preferred Stock; (iv) take such other action, in its sole
discretion, to facilitate the above, including contacting other holders of the
Exchangeable Preferred Stock and, possibly, the solicitation of proxies in favor
of VP's or another person's nominees; (v) seek judicial enforcement of its legal
rights as a stockholder of the Issuer, if necessary, in VP's discretion; (vi)
exercise any or all rights available to holders of the Exchangeable Preferred
Stock; or (vii) take any other action it may deem to be appropriate and in its
interest as set forth above.
In the future, VP or E&P may determine to purchase additional shares of
the Issuer's Exchangeable Preferred Stock (or other securities of the Issuer),
or VP or E&P may determine to sell shares of the Exchangeable Preferred Stock.
Any such determination will depend upon a number of factors, including market
prices, the Issuer's prospects and alternative investments.
While VP and E&P intend to exercise their rights as stockholders,
except as set forth above, none of VP, E&P or Mr. Ewing currently has any plans
or proposals which relate to or would result in: (a) the acquisition by any
person of additional securities of the Issuer or the disposition of securities
of the Issuer; (b) an extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving the Issuer or any of its subsidiaries;
(c) a sale or transfer of a material amount of assets of the Issuer or any of
its subsidiaries; (d) any change in the present Board of Directors or management
of the Issuer, including any plans or proposals to change the number or term of
directors or to fill any existing vacancies on the Board; (e) any material
change in the present capitalization or dividend policy of the Issuer; (f) any
other material change in the Issuer's business or corporate structure; (g)
changes in the Issuer's Articles of Incorporation, Bylaws or instruments
corresponding thereto or other actions which may impede the acquisition of
control of the Issuer by any person; (h) causing a class of securities of the
Issuer to be delisted from a national securities exchange or to cease to be
authorized or quoted in an inter-dealer quotation system of a registered
national securities association; (i) a class of equity securities of the Issuer
becoming eligible for termination of registration pursuant to Section 12(g)(4)
of the Exchange Act; or (j) any action similar to any of those enumerated
above." |
