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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A/A
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FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
COMPUTER TASK GROUP, INCORPORATED
(Exact name of Registrant as specified in its charter)
NEW YORK 16-0912632
(State of incorporation or organization) (I.R.S. Employer
Identification No.)
800 Delaware Avenue
Buffalo, New York 14209
(Address, including zip code, of principal executive offices)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
Rights to Purchase New York Stock Exchange
Series A Participating Cumulative
Preferred Stock
If this form relates to the registration of a class of securities
pursuant to Section 12(b) of the Exchange Act and is effective pursuant to
General Instruction A.(c), check the following box. [X]
If this form relates to the registration of a class of securities
pursuant to Section 12(g) of the Exchange Act and is effective pursuant to
General Instruction A.(d), check the following box. [ ]
Securities to be registered pursuant to Section 12(g) of the Act:
None
(Title of class)
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2
Item 1. Description of Registrant's Securities to be Registered.
At a meeting of the Computer Task Group, Incorporated (the
"Company") Board of Directors on November 20, 1998, the Board authorized
the amendment of certain terms of the Rights Agreement dated as of January
16, 1989 (the Rights Agreement"), between the Company and BankBoston, N.A.
(as successor to The First National Bank of Boston), as Rights Agent. These
amendments, which took effect as of November 20, 1998, (i) increase the
purchase price with respect to each right from $50 (which amount has
previously been adjusted to $25 in connection with a two-for-one stock
split of the Company's common stock in accordance with the Rights
Agreement) to $120, (ii) extend the expiration date of the Rights from
January 16, 2008, to November 20, 2008, unless earlier redeemed by the
Company, (iii) reset the anti-dilution mechanisms in the Rights Agreement
and with respect to the rights issued thereunder on the date of renewal
(November 20, 1998) and (iv) make certain other technical changes to the
Rights Agreement.
The amendment to the Rights Agreement is attached hereto as
Exhibit 4, which is incorporated herein by reference. The foregoing
description of the amendments does not purport to be complete and is
qualified in its entirety by reference to that Exhibit.
Item 2. Exhibits.
Item 2 is amended by adding thereto the following:
4. Amendment No. 1 dated as of November 20, 1998, to the
Rights Agreement dated as of January 16, 1989, between
Computer Task Group, Incorporated and BankBoston, N.A.
(as successor to The First National Bank of Boston), as
Rights Agent
5. Form of Certificate of Amendment of The Restated
Certificate of Incorporation (attached as Exhibit A to
Amendment No. 1 filed as Exhibit 4 hereto)
6. Form of Right Certificate (attached as Exhibit B to
Amendment No. 1 filed as Exhibit 4 hereto)
7. The Restated Certificate of Incorporation of Computer
Task Group, Incorporated
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3
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this registration
statement to be signed on its behalf by the undersigned, thereto duly
authorized.
COMPUTER TASK GROUP, INCORPORATED,
by /s/ James R. Boldt
----------------------------------
Date: January 13, 1999 Name: James R. Boldt
Title: Vice President and Chief
Financial Officer
<PAGE>
INDEX OF EXHIBITS
Page Number
in
Sequentially
Exhibit Numbered
Number Title Statement
------- ----- ------------
4. Amendment No. 1 dated as of November 20, 1998, to
the Rights Agreement dated as of January 16, 1989,
between Computer Task Group, Incorporated and
BankBoston, N.A. (as successor to The First
National Bank of Boston), as Rights Agent
5.
Form of Certificate of Amendment of The Restated
Certificate of Incorporation (attached as Exhibit A
to Amendment No. 1 filed as Exhibit 4 hereto)
6. Form of Right Certificate (attached as Exhibit B to
Amendment No. 1 filed as Exhibit 4 hereto)
7. The Restated Certificate of Incorporation of Computer
Task Group, Incorporated
<PAGE>
AMENDMENT NO. 1, dated as of November 20, 1998, to
the Rights Agreement (the "Rights Agreement") dated as
of January 16, 1989, between COMPUTER TASK GROUP,
INCORPORATED, a New York corporation (the "Company"),
and BANKBOSTON, N.A. (as successor to The First National
Bank of Boston), as Rights Agent (the "Rights Agent").
WHEREAS the rights issued under the Rights Agreement are
currently scheduled to expire on January 16, 1999, and the Board of
Directors of the Company wishes to extend the expiration date of such
rights, change the purchase price applicable to such rights, reset the
anti-dilution mechanisms with respect to such rights and make certain other
amendments to the Rights Agreement pursuant to Section 27 of the Rights
Agreement; and
WHEREAS the Company and the Rights Agent desire to evidence
such amendment in writing.
NOW, THEREFORE, in consideration of the mutual agreements
contained herein and other good and valuable consideration, the sufficiency
and receipt of which are hereby acknowledged, the Company and the Rights
Agent agree as follows:
SECTION 1. Amendments to the Rights Agreement. The Rights
Agreement is hereby amended, effective as the date of this Amendment, as
follows:
(a) The term "Purchase Price" in Section 1(w) of the Rights
Agreement is hereby amended by deleting the reference to "$50" (which
amount has previously been adjusted to $25 in connection with a two-for-one
split of the Common Shares (as defined in the Rights Agreement) pursuant to
Section 11(a) of the Rights Agreement) and replacing it with "$120".
(b) Section 3(d) of the Rights Agreement is hereby amended
by deleting the first sentence of the legend set forth therein and
replacing it with the following:
"This certificate also evidences and entitles the holder hereof
to certain Rights as set forth in a Rights Agreement dated as of
January 16, 1989, as amended (the 'Rights Agreement'), between
Computer Task Group, Incorporated and BankBoston, N.A. (as
successor to The First National Bank of Boston), as Rights Agent,
the terms of which are hereby incorporated herein by reference
and a copy of which is on file at the principal executive offices
of Computer Task Group, Incorporated."
(c) Section 7(a) of the Rights Agreement is hereby amended
by deleting the reference to "January 16, 1999" in the definition of the
term "Expiration Date" and replacing it with "November 20, 2008".
(d) Section 11(a) of the Rights Agreement is hereby amended
by deleting the phrase "the date of this Rights Agreement" in the first
sentence of such subsection and replacing it with "November 20, 1998". All
prior adjustments to the number of Preferred Shares issuable upon exercise
of each Right (as defined in the Rights Agreement) pursuant to Section
11(a)(1) of the Rights Agreement are hereby undone.
SECTION 2. Amendment to Exhibit A. Exhibit A to the Rights
Agreement is hereby amended, effective as of the date of this Amendment, by
deleting it in its entirety and by replacing it with Exhibit A attached
hereto.
SECTION 3. Amendment to Exhibit B. Exhibit B to the Rights
Agreement is hereby amended, effective as of the date of this Amendment, by
deleting it in its entirety and by replacing it with Exhibit B attached
hereto.
SECTION 4. Amendment to Exhibit C. Exhibit C to the Rights
Agreement is hereby amended, effective as of the date of this Amendment, by
deleting it in its entirety and replacing it with Exhibit C attached
hereto.
SECTION 5. Amended Agreement. Any reference in the Rights
Agreement, or in any documents or instruments required thereunder or
exhibits thereto, referring to the Rights Agreement shall be deemed to
refer to the Rights Agreement, as amended. As used in the Rights Agreement,
the terms "Rights Agreement", "this Agreement", "herein", "hereinafter",
"hereto", "hereof" and words of similar import shall,
<PAGE>
2
unless the context otherwise requires, mean the Rights Agreement, as
amended. Except as expressly modified by this Amendment, the terms and
provisions of the Rights Agreement are hereby confirmed and ratified in all
respects and shall remain in full force and effect as the terms and
provisions of the Rights Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the day and year first above written.
COMPUTER TASK GROUP, INCORPORATED,
by /s/ James R. Boldt
--------------------------------
Name: James R. Boldt
Title: Vice President and Chief
Financial Officer
BANKBOSTON, N.A.,
as Rights Agent,
by /s/ Katherine Anderson
--------------------------------
Name: Katherine Anderson
Title: Administration Manager
<PAGE>
EXHIBIT A
Certificate of Amendment
of
The Restated Certificate of Incorporation
of
Computer Task Group, Incorporated
(the "Corporation")
Under Section 805 of the Business Corporation Law
The undersigned Gale S. Fitzgerald and James R. Boldt, Chairman
of the Board and Chief Executive Officer and Vice President and Chief
Financial Officer, respectively, hereby certify:
1. The name of the Corporation is Computer Task Group,
Incorporated. The name under which the corporation was formed is
Marks-Baer, Inc.
2. The Certificate of Incorporation of the Corporation was
filed by the Department of State of the State of New York on March 11,
1966.
3. Section (c) of Article 4 of The Restated Certificate of
Incorporation, which designates a Series of Preferred Shares of the
Corporation as Series A Participating Cumulative Preferred Shares and which
sets the relative rights, preferences and limitations of such Series A
Participating Cumulative Preferred Shares, is hereby amended to read in its
entirety as follows:
"c. There is hereby established a series of the Corporation's
authorized Preferred Shares, to be designated as the Series A Participating
Cumulative Preferred Shares, par value $.01 per share. The relative rights,
preferences and limitations of the Series A Preferred Shares, insofar as
not already fixed by any other provision of this Restated Certificate of
Incorporation shall, as fixed by the Board of Directors of the Corporation
in the exercise of authority conferred by this Restated Certificate of
Incorporation, and as permitted by Section 502 of the New York Business
Corporation Law, be as follows:
(i) Designation and Number of Shares. The shares of
such series shall be designated as 'Series A Participating
Cumulative Preferred Shares' (the "Series A Preferred Shares").
The par value of each share of the Series A Preferred Shares
shall be $.01. The number of shares initially constituting the
Series A Preferred Shares shall be 120,000; provided, however,
that the number of Series A Preferred Shares may be increased, by
an amendment of this paragraph (i) of this Section c approved by
the Board of Directors of the Corporation, if within the
authority of the Board of Directors of the Corporation under
Article 4 of the Restated Certificate of Incorporation, to such
greater number of Series A Preferred Shares as are at any time
issuable upon exercise of the Rights (the "Rights") issued
pursuant to the Rights Agreement dated as of January 16, 1989, as
amended, between the Corporation and BankBoston, N.A. (as
successor to The First National Bank of Boston), as Rights Agent
(the "Rights Agreement").
(ii) Dividends or Distributions.
(A) Subject to the prior and superior rights of the
holders of shares of any other series of Preferred Shares or
other class or series of capital stock of the Corporation ranking
prior and superior to the Series A Preferred Shares with respect
to dividends, the holders of shares of the Series A Preferred
Shares shall be entitled to receive, when, as and if declared by
the Board of Directors, out of the assets of the Corporation
legally available therefor, (1) quarterly dividends payable in
cash on the fifteenth day of March, June, September and December
in each year (each such date being referred to herein as a
"Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a
share or a fraction of a share of the Series A Preferred Shares,
in the amount of $10 per whole share (rounded to the nearest
cent) less the amount of all cash dividends declared on the
Series A Preferred Shares pursuant to the following clause (2)
since the immediately preceding Quarterly Dividend Payment Date
or, with respect to the first Quarterly Dividend Payment Date,
since the first issuance of any share or fraction of a share of
the Series A Preferred Shares, and (2) dividends payable in cash
on the payment date for each cash dividend declared on the Common
Shares in an amount per whole share (rounded to the nearest cent)
equal to the Formula Number then in effect times the cash
dividends then to be paid on each Common Share. In addition, if
the Corporation shall pay any dividend or make any distribution
on the Common Shares payable in assets, securities or other forms
of noncash consideration (other than dividends or distributions
solely in Common Shares), then, in
<PAGE>
2
each such case, the Corporation shall simultaneously pay or make
on each outstanding whole share of the Series A Preferred Shares
a dividend or distribution in like kind equal to the Formula
Number then in effect times such dividend or distribution on each
Common Share. As used in this Section (c), the "Formula Number"
shall be 1000; provided, however, that if at any time after
November 20, 1998, the Corporation shall (i) declare or pay any
dividend on the Common Shares payable in Common Shares or make
any distribution on the Common Shares in Common Shares, (ii)
subdivide (by a stock split or otherwise) the outstanding Common
Shares into a larger number of Common Shares or (iii) combine (by
a reverse stock split or otherwise) the outstanding Common Shares
into a smaller number of Common Shares, then in each such event
the Formula Number shall be adjusted to a number determined by
multiplying the Formula Number in effect immediately prior to
such event by a fraction, the numerator of which is the number of
Common Shares that are outstanding immediately after such event
and the denominator of which is the number of Common Shares that
are outstanding immediately prior to such event (and rounding the
result to the nearest whole number); and provided, further, that
if at any time after November 20, 1998, the Corporation shall
issue any shares of its capital stock in a reclassification or
change of the outstanding Common Shares (including any such
reclassification or change in connection with a merger in which
the Corporation is the surviving corporation), then in each such
event the Formula Number shall be appropriately adjusted to
reflect such reclassification or change.
(B) The Corporation shall declare a dividend or
distribution on the Series A Preferred Shares as provided in
paragraph (ii)(a) above immediately prior to or at the same time
it declares a dividend or distribution on the Common Shares
(other than a dividend or distribution solely in Common Shares);
provided, however, that, in the event no dividend or distribution
(other than a dividend or distribution in Common Shares) shall
have been declared on the Common Shares during the period between
any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend of $10 per share on
the Series A Preferred Shares shall nevertheless be payable on
such subsequent Quarterly Dividend Payment Date. The Board of
Directors may fix a record date for the determination of holders
of shares of Series A Preferred Shares entitled to receive a
dividend or distribution declared thereon, which record date
shall be the same as the record date for any corresponding
dividend or distribution on the Common Shares.
(C) Dividends shall begin to accrue and be cumulative
on outstanding Series A Preferred Shares from and after the
Quarterly Dividend Payment Date next preceding the date of
original issue of such Series A Preferred Shares; provided,
however, that dividends on Series A Preferred Shares which are
originally issued after the record date for the determination of
holders of Series A Preferred Shares entitled to receive a
quarterly dividend and on or prior to the next succeeding
Quarterly Dividend Payment Date shall begin to accrue and be
cumulative from and after such Quarterly Dividend Payment Date.
Notwithstanding the foregoing, dividends on Series A Preferred
Shares which are originally issued prior to the record date for
the first Quarterly Dividend Payment shall be calculated as if
cumulative from and after the March 15, June 15, September 15 or
December 15, as the case may be, next preceding the date of
original issuance of such Series A Preferred Shares. Accrued but
unpaid dividends shall not bear interest. Dividends paid on the
shares of Series A Preferred Shares in an amount less than the
total amount of such dividends at the time accrued and payable on
such shares shall be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding.
(D) So long as any shares of the Series A Preferred
Shares are outstanding, no dividends or other distributions shall
be declared, paid or distributed, or set aside for payment or
distribution, on the Common Shares unless, in each case, the
dividend required by this paragraph (ii) to be declared on the
Series A Preferred Shares shall have been declared and paid or
set apart.
(E) The holders of the shares of Series A Preferred
Shares shall not be entitled to receive any dividends or other
distributions except as provided herein.
(iii) Voting Rights. The holders of shares of Series A
Preferred Shares shall have the following voting rights:
(A) Each holder of Series A Preferred Shares shall be
entitled to a number of Votes equal to the Formula Number then in
effect, for each share of the Series A Preferred Shares held of
record on each matter on which holders of the Common Shares or
shareholders generally are entitled to vote, multiplied by the
number of votes per share which the holders of the Common Shares
or shareholders generally then have with respect to such matter.
<PAGE>
3
(B) Except as otherwise provided herein or by
applicable law, the holders of shares of Series A Preferred
Shares and the holders of shares of Common Shares shall vote
together as one class for the election of directors of the
Corporation and on all other matters submitted to a vote of
shareholders of the Corporation.
(C) If at the time of any annual meeting of
shareholders for the election of directors, the equivalent of six
quarterly dividends (whether or not consecutive) payable on any
share or shares of Series A Preferred Shares are in default, the
number of directors constituting the board of Directors of the
Corporation shall be increased by two. In addition to voting
together with the holders of Common Shares for the election of
other directors of the Corporation, the holders of record of the
Series A Preferred Shares, voting separately as a class to the
exclusion of the holders of Common Shares, shall be entitled at
said meeting of shareholders (and at each subsequent annual
meeting of shareholders), unless all dividends in arrears have
been paid or declared and set apart for payment prior thereto, to
vote for the election of such additional directors, if any, of
the Corporation, the holders of any Series A Preferred Shares
being entitled to cast a number of votes per share of the Series
A Preferred Shares equal to the Formula Number. Until the default
in payments of all dividends which permitted the election of said
directors shall cease to exist, any director who shall have been
so elected pursuant to the next preceding sentence may be removed
at any time by, and removed without cause only by, the
affirmative vote of the holders of the Series A Preferred Shares
at the time entitled to cast a majority of the votes entitled to
be cast for the election of any such director at a special
meeting of such holders called for that purpose, and any vacancy
thereby created may be filled by the vote of such holders. If and
when such default shall cease to exist, the holders of the Series
A Preferred Shares shall be divested of the foregoing special
voting rights, subject to revesting in the event of each and
every subsequent like default in payments of dividends. Upon the
termination of the foregoing special voting rights, the terms of
office of all persons who may have been elected directors
pursuant to said special voting rights shall forthwith terminate,
and the number of directors constituting the Board of Directors
shall be reduced by two or such other number of directors as
shall have been added pursuant to the provisions of this
subsection (C). The voting rights granted by this subsection (C)
shall be in addition to any other voting rights granted to the
holders of the Series A Preferred Shares in this paragraph (iii).
(D) Except as provided herein, in paragraph (xi) or by
applicable law, holders of Series A Preferred Shares shall have
no special voting rights and their consent shall not be required
(except to the extent they are entitled to vote with holders of
Common Shares as set forth herein) for authorizing or taking any
corporate action.
(iv) Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Preferred Shares as
provided in paragraph (ii) of this Section (c) are in arrears,
thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A
Preferred Shares outstanding shall have been paid in full, the
Corporation shall not
(1) declare or pay dividends on, make any
other distributions on, or redeem or purchase or
otherwise acquire for consideration any shares of stock
ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A
Preferred Shares;
(2) declare or pay dividends on or make other
distributions on any shares of stock ranking on a
parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred
Shares, except dividends paid ratably on the Series A
Preferred Shares and all such parity stock on which
dividends are payable or in arrears in proportion to
the total amounts to which the holders of all such
shares are then entitled;
(3) redeem or purchase or otherwise acquire
for consideration shares of any stock ranking on a
parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred
Shares, provided that the Corporation may at any time
redeem, purchase or otherwise acquire shares of any
such parity stock in exchange for shares of any stock
of the Corporation ranking junior (either as to
dividends or upon dissolution, liquidation or winding
up) to the Series A Preferred Shares; or
(4) purchase or otherwise acquire for
consideration any shares of Series A Preferred Shares,
or any shares of stock ranking on a parity with the
Series A Preferred Shares, except in accordance with a
purchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders of
such shares upon such terms as the
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4
Board of Directors, after consideration of the
respective annual dividend rates and other relative
rights and preferences of the respective series and
classes, shall determine in good faith will result in
fair and equitable treatment among the respective
series or classes.
(B) The Corporation shall not permit any subsidiary of
the Corporation to purchase or otherwise acquire for
consideration any shares of stock of the Corporation unless the
Corporation could, under sub-paragraph (A) of this paragraph
(iv), purchase or otherwise acquire such shares at such time and
in such manner.
(v) Liquidation Rights. Upon the liquidation,
dissolution or winding up of the Corporation, whether voluntary
or involuntary, no distribution shall be made (1) to the holders
of shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution, or winding up) to the Series A
Preferred Shares unless, prior thereto, the holders of Series A
Preferred Shares shall have received an amount equal to the
accrued and unpaid dividends and distributions thereon, whether
or not declared, to the date of such payment, plus an amount
equal to the greater of (x) $250 per share and (y) an aggregate
amount per share equal to the Formula Number then in effect times
the aggregate amount to be distributed per share to holders of
Common Shares, or (2) to the holders of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or
winding up) with the Series A Preferred Shares, except
distributions made ratably on the Series A Preferred Shares and
all other such parity stock in proportion to the total amounts as
to which the holders of all such shares are entitled upon such
liquidation, dissolution or winding up.
(vi) Consolidation, Merger, etc. In each the
Corporation shall enter into any consolidation, merger,
combination or other transaction in which the Common Shares are
exchanged for or changed into other stock or securities, cash or
any other property, then in any such case the then outstanding
shares of Series A Preferred Shares shall at the same time be
similarly exchanged or changed in an amount per share equal to
the Formula Number then in effect times the aggregate amount of
stock, securities, cash or any other property (payable in kind),
as the case may be, into which or for which each Common Share is
exchanged or changed.
(vii) Redemption; No Sinking Fund.
(A) The Series A Preferred Shares shall not be subject
to redemption by the Corporation or at the option of any holder
of Series A Preferred Stock; provided, however, that the
Corporation may purchase or otherwise acquire outstanding shares
of Series A Preferred Stock in the open market or by offer to any
holder or holders of shares of Series A Preferred Stock.
(B) The Series A Preferred Shares shall not be subject
to or entitled to the operation of a retirement or sinking fund.
(viii) Ranking. The Series A Preferred Shares shall
rank equally and on a parity with all other series of Preferred
Shares of the Corporation with respect to the payment of
dividends and the distribution of assets upon the liquidation,
dissolution or winding up of the Corporation.
(ix) Fractional Shares. The Series A Preferred Shares
shall be issuable upon exercise of the Rights issued pursuant to
the Rights Agreement in whole shares or in any fraction of a
share that is one one-thousandth (1/1000th) of a share or any
integral multiple of such fraction which shall entitle the
holder, in proportion to such holder's fractional shares, to
receive dividends, exercise voting rights, participate in
distributions and to have the benefit of all other rights of
holders of Series A Preferred Shares. The Corporation, prior to
the first issuance of a share or a fraction of a share of Series
A Preferred Shares, may elect (1) to issue certificates
evidencing such authorized fraction of a share of Series A
Preferred Shares or (2) to issue depository receipts evidencing
such authorized fraction of a share of Series A Preferred Shares
pursuant to an appropriate agreement between the Corporation and
a depository selected by the Corporation, provided that such
agreement shall provide that the holders of such depository
receipts shall have all the rights, privileges and preferences to
which they are entitled as holders of the Series A Preferred
Shares.
(x) Reacquired Shares. Any Series A Preferred Shares
purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled promptly after the
acquisition thereof. All such shares shall upon their cancelation
become authorized but unissued shares of Preferred Shares,
without designation as to series until such shares are once more
designated as part of a particular series by resolution of the
Board of Directors.
(xi) Amendment. None of the powers, preferences and
relative, participating, optional and other special rights of the
Series A Preferred Shares as provided herein shall be amended in
any manner which would alter or change the powers, preferences,
rights or privileges of the holders of
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Series A Preferred Shares so as to affect them adversely without
the affirmative vote of the holders of at least 66-2/3% of the
outstanding Series A Preferred Shares, voting as a separate
class; provided, however, that no such amendment approved by the
holders of at least 66-2/3% of the outstanding Series A Preferred
Shares shall be deemed to apply to the powers, preferences,
rights or privileges of any holder of Series A Preferred Shares
originally issued upon exercise of the Rights after the time of
such approval without the approval of such holder and provided
further, however, that the Board of Directors of the Corporation,
prior to the earlier of (i) the Distribution Date and (ii) the
Expiration Date (as such terms are defined in the Rights
Agreement) may amend the powers, preferences and relative
participating, optional and other terms of the Series A Preferred
Shares in any manner."
4. Immediately prior to this amendment, there were 80,000
shares of Series A Participating Cumulative Preferred Shares, par value
$.01 per share, authorized, of which none were issued. Immediately after
this amendment, there will be 120,000 shares of Series A Participating
Cumulative Preferred Shares, par value $.01 per share, authorized, of which
none are issued.
5. The amendment to the Restated Certificate of
Incorporation of the Corporation set forth in Article 3 of this Certificate
was authorized by the Board of Directors of the Corporation at a meeting
duly held on November 20, 1998.
IN WITNESS WHEREOF, the undersigned do hereby execute this
Certificate and do hereby affirm the truth of the statements contained
herein under penalty of perjury this 13th day of January, 1999.
---------------------------------
Name: Gale S. Fitzgerald
Title: Chairman of the Board and
Chief Executive Officer
---------------------------------
Name: James R. Boldt
Title: Vice President and
Chief Financial Officer
<PAGE>
EXHIBIT B
[Form of Right Certificate]
Certificate No. R- Rights
NOT EXERCISABLE AFTER NOVEMBER 20, 2008, OR EARLIER IF
REDEEMED BY THE COMPANY. THE RIGHTS ARE SUBJECT TO
REDEMPTION, AT THE OPTION OF THE COMPANY, AT $.01 PER RIGHT,
ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER
CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN
ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN
ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS
AGREEMENT) AND BY ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY
BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS RIGHT
CERTIFICATE WERE ISSUED TO A PERSON WHO WAS AN ACQUIRING
PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON.
THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY
BECOME VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e)
OF THE RIGHTS AGREEMENT.] *
Right Certificate
COMPUTER TASK GROUP, INCORPORATED
This certifies that , or registered assigns, is the
registered owner of the number of Rights set forth above, each of which
entitles the owner thereof, subject to the terms, provisions and conditions
of the Rights Agreement dated as of January 16, 1989 (as amended, the
"Rights Agreement"), between Computer Task Group, Incorporated, a New York
corporation (the "Company"), and BankBoston, N.A. (as successor to The
First National Bank of Boston), as Rights Agent (the "Rights Agent"),
unless the Rights evidenced hereby shall have been previously redeemed by
the Company, to purchase from the Company at any time after the
Distribution Date (as defined in the Rights Agreement) and prior to 5:00
p.m., New York City time, on November 20, 2008 (the "Expiration Date"), at
the office of the Rights Agent or its successors as Rights Agent designated
for such purpose, in one one-thousandth (1/1000th) of a fully paid,
nonassessable share of Series A Participating Cumulative Preferred Stock,
par value $.01 per share, of the Company (the "Preferred Shares"), at a
purchase price of $120 per one one-thousandth (1/1000th) of a share (the
"Purchase Price") payable in cash, upon presentation and surrender of this
Right Certificate with the Form of Election to Purchase duly executed.
The Purchase Price and the number and kind of shares which
may be purchased upon exercise of each Right evidenced by this Right
Certificate, as set forth above, are the Purchase Price and the number and
kind of shares which may be so purchased as of November 20, 1998. As
provided in the Rights Agreement, the Purchase Price and the number and
kind of shares which may be purchased upon the exercise of each Right
evidenced by this Right Certificate are subject to modification and
adjustment upon the happening of certain events.
If the Rights evidenced by this Right Certificate are or
were at any time on or after the earlier of the Distribution Date or the
Share Acquisition Date (as such terms are defined in the Rights Agreement)
beneficially owned by an Acquiring Person or an Affiliate or Associate of
an Acquiring Person (as such terms are defined in the Rights Agreement),
such Rights shall, under certain circumstances, become null and void and
the holder of any such Right (including any subsequent holder) shall not
have any right to exercise any such Right.
This Right Certificate is subject to all the terms,
provisions and conditions of the Rights Agreement, which terms, provisions
and conditions are hereby incorporated herein by reference and made a part
hereof and to which reference to the Rights Agreement is hereby made for a
full description of the rights, limitations of rights, obligations, duties
and immunities hereunder of the Rights Agent, the Company and the holders
of the Right Certificates. Copies of the Rights Agreement are available
from the Company upon written request.
This Right Certificate, with or without other Right
Certificates, upon surrender at the office of the Rights Agent designated
for such purpose, may be exchanged for another Right Certificate or Right
Certificates of like tenor and date evidencing Rights entitling the holder
to purchase a like aggregate number
- --------
* The portion of the legend in brackets shall be inserted only if
applicable.
<PAGE>
2
and kind of shares as the Rights evidenced by the Right Certificate or
Right Certificates surrendered shall have entitled such holder to purchase.
If this Right Certificate shall be exercised in part, the holder shall be
entitled to receive upon surrender hereof another Right Certificate or
Right Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the
Rights evidenced by this Right Certificate may be redeemed by the Company
at its option at a redemption price (in cash or shares of Common Stock or
other securities of the Company deemed by the Board of Directors to be at
least equivalent in value) of $.01 per Right (which amount shall be subject
to adjustment as provided in the Rights Agreement) at any time prior to the
earliest of (i) the Distribution Date and (ii) the Expiration Date;
provided, however, that, after there shall be an Acquiring Person the
Rights may not be redeemed (all terms as defined in the Rights Agreement).
The Company may, but shall not be required to, issue
fractions of Preferred Shares or distribute certificates which evidence
fractions of Preferred Shares upon the exercise of any Right or Rights
evidenced hereby. In lieu of issuing fractional shares, the Company may
elect to make a cash payment as provided in the Rights Agreement for
fractions of a share other than one one-thousandth (1/1000th) of a share or
any integral multiple thereof or to issue certificates or utilize a
depository arrangement as provided in the terms of the Rights Agreement and
the Preferred Shares.
No holder of this Right Certificate, as such, shall be
entitled to vote or receive dividends or be deemed for any purpose the
holder of the Preferred Shares or of any other securities of the Company
which may at any time be issuable on the exercise hereof, nor shall
anything contained in the Rights Agreement or herein be construed to confer
upon the holder hereof, as such, any of the rights of a shareholder of the
Company, including, without limitation, any right to vote for the election
of directors or upon any matter submitted to shareholders at any meeting
thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting shareholders (except
as provided in the Rights Agreement), or to receive dividends or other
distributions or subscription rights, or otherwise, until the Right or
Rights evidenced by this Right Certificate shall have been exercised as
provided in accordance with the provisions of the Rights Agreement.
This Right Certificate shall not be valid or obligatory for
any purpose until it shall have been countersigned by the Rights Agent.
<PAGE>
3
WITNESS the facsimile signature of the proper officers of
the Company and its corporate seal.
Dated as of:
COMPUTER TASK GROUP, INCORPORATED,
by
------------------------------ -----------------------------------
[Name]
[Title]
Attest:
- -------------------------------
[Name]
[Title]
Countersigned:
BANKBOSTON, N.A.,
as Rights Agent,
by
--------------------------
Authorized Signature
<PAGE>
[On Reverse Side of Right Certificate]
FORM OF ELECTION TO PURCHASE
(To be executed by the registered holder if
such holder desires to exercise the Rights
represented by this Right Certificate)
To the Rights Agent:
The undersigned hereby irrevocably elects to exercise
Rights represented by this Right Certificate to purchase the Preferred
Shares (or other securities) issuable upon the exercise of such Rights and
requests that certificates for such Preferred Shares (or other securities)
be issued in the name of:
- ---------------------------------------------------------------------------
(Please print name and address)
- ---------------------------------------------------------------------------
Please insert social security
or other identifying number: ----------------------------------------------
If such number of Rights shall not be all the Rights evidenced by
this Right Certificate, a new Right Certificate for the balance remaining
of such Rights shall be registered in the name of and delivered to:
- ---------------------------------------------------------------------------
(Please print name and address)
- ---------------------------------------------------------------------------
Please insert social security
or other identifying number: ----------------------------------------------
Dated:
-----------------------
-----------------------------------
Signature
Signature Guaranteed:
<PAGE>
2
CERTIFICATE
The undersigned hereby certifies by checking the appropriate
boxes that:
(1) the Rights evidenced by this Right Certificate [ ] are [ ]
are not being exercised by or on behalf of a Person who is or was an
Acquiring Person or an Affiliate or Associate of any such Acquiring Person
(as such terms are defined in the Rights Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights evidenced by this
Right Certificate from any Person who is or was an Acquiring Person or an
Affiliate or Associate of an Acquiring Person.
Dated:
---------------------------------
Signature
Signature Guaranteed:
NOTICE
The signature on the foregoing Form of Election to Purchase and
Certificate must correspond to the name as written upon the face of this
Right Certificate in every particular, without alteration or enlargement or
any change whatsoever.
<PAGE>
3
[On Reverse Side of Right Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if
such holder desires to transfer the Rights
represented by this Right Certificate.)
FOR VALUE RECEIVED
------------------------------------------------
hereby sells, assigns and transfers unto
----------------------------------
(Please print name and address of transferee)
- ---------------------------------------------------------------------------
this Right Certificate, together with all right, title and interest
therein, and does hereby irrevocably constitute and appoint
- ---------------------- Attorney, to transfer the within Right Certificate
on the books of the within-named Company, with full power of substitution.
Dated:
----------------------------------------
Signature
Signature Guaranteed:
CERTIFICATE
The undersigned hereby certifies by checking the appropriate
boxes that:
(1) this Right Certificate [ ] is [ ] is not being sold, assigned
and transferred by or on behalf of a Person who is or was an Acquiring
Person or an Affiliate or Associate of any such Acquiring Person (as such
terms are defined in the Rights Agreement);
<PAGE>
2
(2) after due inquiry and to the best knowledge of the
undesigned, it [ ] did [ ] did not acquire the Rights evidenced by this
Right Certificate from any Person who is or was an Acquiring Person or an
Affiliate or Associate of an Acquiring Person.
Dated:
----------------------------------------
Signature
Signature Guaranteed:
NOTICE
The signature on the foregoing Form of Assignment and Certificate
must correspond to the name as written upon the face of this Right
Certificate in every particular, without alteration or enlargement or any
change whatsoever.
<PAGE>
EXHIBIT C
SUMMARY OF RIGHTS TO PURCHASE
SERIES A PARTICIPATING CUMULATIVE PREFERRED STOCK
OF COMPUTER TASK GROUP, INCORPORATED
On November 20, 1998, the Board of Directors of Computer Task
Group, Incorporated (the "Company") modified the Rights to purchase shares
of Series A Participating Cumulative Preferred Stock, par value $.01 per
share, of the Company (the "Preferred Shares"). Existing Rights are
currently represented by the certificates for shares of Common Stock, par
value $.01 per share, of the Company (the "Common Shares") pursuant to the
Rights Agreement dated as of January 16, 1989, as amended (the "Rights
Agreement"), between the Company and BankBoston, N.A. (as successor to The
First National Bank of Boston), as Rights Agent (the "Rights Agent").
Additional Rights will be issued with respect to additional Common Shares
issued between November 20, 1998 and the Distribution Date (as defined
below) and, in certain circumstances, with respect to Common Shares issued
after the Distribution Date. Each Right, when it becomes exercisable as
described below, will entitle the registered holder to purchase from the
Company one one-thousandth (1/1000th) of a Preferred Share at a price of
$120 (the "Purchase Price"). The description and terms of the Rights are
set forth in the Rights Agreement.
Until the earlier of (i) the date on which a person or group
(including any affiliate or associate of such person or group) acquires
beneficial ownership of 20% or more of the outstanding Common Shares (such
person or group being called an "Acquiring Person" and such date being
called the "Share Acquisition Date") and (ii) the 10th business day after
the commencement of, or first public disclosure of an intent to commence, a
tender or exchange offer for outstanding Common Shares which would result
in the offeror becoming the beneficial owner of 20% or more of the
outstanding Common Shares (the earlier of such dates being called the
"Distribution Date"), the Rights will be evidenced by the certificates for
Common Shares registered in the names of the holders thereof (which
certificates for Common Shares shall also be deemed to be Right
Certificates, as defined below) and not by separate Right Certificates.
Therefore, until the Distribution Date, the Rights will be transferred with
and only with the Common Shares.
As soon as practicable after the Distribution Date, separate
certificates evidencing the Rights ("Right Certificates") will be mailed to
holders of record of the Common Shares as of the close of business on the
Distribution Date, and such separate Right Certificates alone will
thereafter evidence the Rights.
The Rights are not exercisable until the Distribution Date and
will expire on November 20, 2008 (the "Expiration Date"), unless earlier
redeemed by the Company as described below.
The number of Preferred Shares issuable upon exercise of a Right
is subject to adjustment as provided in the Rights Agreement from time to
time in the event of (i) the declaration of a stock dividend payable in
Preferred Shares or a subdivision, combination or reclassification of the
Preferred Shares, (ii) the issuance of certain rights, options or warrants
to holders of Common Shares or Equivalent Shares (as defined in the Rights
Agreement) to subscribe for or purchase Common Shares or Equivalent Shares
at a price per share less than the then-current market value of such Common
Shares or Equivalent Shares or (iii) the distribution to holders of Common
Shares or Equivalent Shares of cash (excluding cash dividends or other
distributions not in excess of 5% of the market value of the Common Shares
on the date of such distribution) or evidences of indebtedness, assets or
securities or subscription rights, options or warrants (other than those
referred to above). The Purchase Price and the number of Preferred Shares
issuable upon exercise of the Rights are subject to adjustment as provided
in the Rights Agreement from time to time in the event of the declaration
of a stock dividend on the Common Shares payable in Common Shares or a
subdivision or combination of the Common Shares prior to the Distribution
Date. In the event of a combination of the outstanding Common Shares into a
smaller number of Common Shares prior to the Distribution Date, the number
of Rights associated with each outstanding Common Share will be
proportionately reduced.
The Preferred Shares are authorized to be issued in fractions
which are an integral multiple of one one-thousandth (1/1000th) of a
Preferred Share. The Company may, but is not required to, issue fractions
of shares upon the exercise of Rights, and, in lieu of fractional shares,
the Company may issue certificates or utilize a depository arrangement as
provided by the terms of the Preferred Shares and, in the case of fractions
other than one one-thousandth (1/1000th) of a Preferred Share or integral
multiples thereof, may make a cash payment based on the market price of
such Preferred Shares.
In the event any person or group shall acquire beneficial
ownership of 20% or more of the Common Shares outstanding (a "Triggering
Event"), the Rights will entitle each holder of a Right to purchase, for
the Purchase Price, that number of one one-thousandths (1/1000ths) of a
Preferred Share equivalent to the number of Common Shares which at the time
of the transaction would have a market value of twice the Purchase Price.
<PAGE>
2
In the event the Company is acquired in a merger or other
business combination or 50% or more of its assets or assets representing
50% or more of its earning power are sold, leased, exchanged or otherwise
transferred (in one or more transactions) to a publicly traded corporation,
each Right will entitle its holder to purchase, for the Purchase Price,
that number of common shares of such corporation which at the time of the
transaction would have a market value of twice the Purchase Price. In the
event the Company is acquired in a merger or other business combination or
50% or more of its assets or assets representing 50% or more of the earning
power of the Company are sold, leased, exchanged or otherwise transferred
(in one or more transactions) to an entity that is not a publicly traded
corporation, each Right will entitle its holder to purchase, for the
Purchase Price, at such holder's option, (i) that number of shares of such
entity (or, at such holder's option, of the surviving corporation in such
acquisition, which could be the Company) which at the time of the
transaction would have a book value of twice the Purchase Price or (ii) if
such entity has an affiliate which has publicly traded common shares, that
number of common shares of such affiliate which at the time of the
transaction would have a market value of twice the Purchase Price.
Any Rights that are or were, at any time on or after the earlier
of the Distribution Date or the Share Acquisition Date, beneficially owned
by an Acquiring Person (or any affiliate or associate of an Acquiring
Person) will be null and void and any holder of any such Right (including
any subsequent holder) will be unable to exercise any such Right.
At any time prior to the earlier of (i) the Distribution Date and
(ii) the Expiration Date, the Board of Directors of the Company may redeem
the Rights in whole, but not in part, at a price (in cash or Common Shares
or other securities of the Company deemed by the Board of Directors to be
at least equivalent in value) of $.01 per Right (the "Redemption Price");
however, once an Acquiring Person becomes an Acquiring Person the Rights
may not be redeemed.
Immediately upon the action of the Board of Directors of the
Company electing to redeem the Rights, the Company shall make an
announcement thereof, and, upon such election, the right to exercise the
Rights will terminate and the only right of the holders of Rights will be
to receive the Redemption Price.
Until a Right is exercised, the holder thereof, as such, will
have no rights as a shareholder of the Company, including, without
limitation, the right to vote or to receive dividends.
At any time prior to the Distribution Date, the Company may,
without the approval of any holder of the Rights, supplement or amend any
provision of the Rights Agreement (including the date on which the
Distribution Date shall occur, the time during which the Rights may be
redeemed or the terms of the Preferred Shares), except that no supplement
or amendment shall be made which reduces the Redemption Price, provides for
an earlier Expiration Date or extends the time during which the Rights may
be redeemed if the Rights are not then redeemable. From and after the
Distribution Date, the Company may amend the Rights Agreement to cure any
ambiguity, defect or inconsistency or to make any other changes which do
not adversely affect the interests of the holders of the Rights
Certificates. However, at any time when there shall be an Acquiring Person
the Rights Agreement may not be supplemented or amended.
This summary description of the Rights does not purport to be
complete and is qualified in its entirety by reference to the Rights
Agreement, which is incorporated herein by reference.
A copy of the Rights Agreement, including the terms of the
Preferred Shares, has been filed with the Securities and Exchange
Commission as an Exhibit to a Registration Statement on Form 8-A. Copies of
the Rights Agreement are available free of charge from the Company upon
written request.
<PAGE>
The Restated Certificate of Incorporation
of
Computer Task Group, Incorporated
(the "Corporation")
1. The name of the Corporation is COMPUTER TASK GROUP,
INCORPORATED.
2. The purposes for which the Corporation is formed are to do any
or all things stated below in any part of the world, either as principal or
agent, and either alone or associated with other corporations, firms or
individuals or by organization of subsidiary corporations or by any
combination of these methods; but to engage in no activity which is illegal
under any applicable law at the time when and the place where it occurs or
which is not permitted to a corporation formed under said Business
Corporation Law.
(a) To provide general services with respect to data processing
equipment including but not limited to systems design and programming,
programmer training, systems engineering, installation management, and
consulting services with respect to equipment selection,
implementation and evaluation.
(b) To develop, manufacture, assemble, repair, buy or otherwise
acquire, sell or otherwise dispose of, handle, store and deal in
materials, products and articles of every kind.
(c) To buy or otherwise acquire, sell, mortgage or otherwise
dispose of, hold, manage, deal in and invest in real property and
interests in real property; and to build, maintain, improve, rebuild,
enlarge, alter, control, operate, buy or otherwise acquire, sell,
mortgage, pledge or otherwise dispose of, deal in and invest in all
kinds of buildings, structures, equipment, inventories and other
tangible property, whether real or personal, and interests in the
foregoing.
(d) To buy or otherwise acquire, sell, pledge, or otherwise
dispose of, hold, vote, use, deal in and invest in shares, stocks,
bonds, evidences of indebtedness, receipts, receivables, patents,
trademarks, trade secrets, trade names, good will and other forms of
intangible personal property of every nature.
(e) To do any or all things stated in preceding paragraphs (c)
and (d) in connection with the acquisition or disposition of any
business, as well as in the course of its own business.
3. The city and county within the State of New York in which the
office of the Corporation is to be located are the City of Buffalo and the
County of Erie.
4. The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 152,500,000 consisting of (1)
150,000,000 shares of Common Stock, par value $.01 per share ("Common
Stock"), and (2) 2,500,000 shares of Preferred Stock, $.01 par value per
share ("Preferred Stock").
(a) The shares of authorized Common Stock of the Corporation
shall be identical in all respects and shall have equal rights and
privileges.
(b) The Board of Directors shall have authority by resolution to
issue the shares of Preferred Stock from time to time on such terms as
it may determine and to divide the Preferred Stock into one or more
classes or series and, in connection with the creation of any such
class or series, to determine and fix by the resolution or resolutions
providing for the issuance of shares thereof the designation, powers
(including voting power) and relative, participating, optional, or
other special rights of such class or series, and the qualifications,
limitations, or restrictions thereof, to the full extent now or
hereafter permitted by law. Except as may be required by law, the
shares in any class or series of Preferred Stock need not be
identical.
c. There is hereby established a series of the Corporation's
authorized Preferred Shares, to be designated as the Series A
Participating Cumulative Preferred Shares, par value $.01 per share.
The relative rights, preferences and limitations of the Series A
Preferred Shares, insofar as not already fixed by any other provision
of this Restated Certificate of Incorporation shall, as fixed by the
Board of Directors of the Corporation in the exercise of authority
conferred by this Restated Certificate of Incorporation, and as
permitted by Section 502 of the New York Business Corporation Law, be
as follows:
<PAGE>
2
(i) Designation and Number of Shares. The shares of such
series shall be designated as 'Series A Participating Cumulative
Preferred Shares' (the "Series A Preferred Shares"). The par
value of each share of the Series A Preferred Shares shall be
$.01. The number of shares initially constituting the Series A
Preferred Shares shall be 120,000; provided, however, that the
number of Series A Preferred Shares may be increased, by an
amendment of this paragraph (i) of this Section c approved by the
Board of Directors of the Corporation, if within the authority of
the Board of Directors of the Corporation under Article 4 of the
Restated Certificate of Incorporation, to such greater number of
Series A Preferred Shares as are at any time issuable upon
exercise of the Rights (the "Rights") issued pursuant to the
Rights Agreement dated as of January 16, 1989, as amended,
between the Corporation and BankBoston, N.A. (as successor to
The First National Bank of Boston), as Rights Agent (the "Rights
Agreement").
(ii) Dividends or Distributions.
(A) Subject to the prior and superior rights of the holders
of shares of any other series of Preferred Shares or other class
or series of capital stock of the Corporation ranking prior and
superior to the Series A Preferred Shares with respect to
dividends, the holders of shares of the Series A Preferred Shares
shall be entitled to receive, when, as and if declared by the
Board of Directors, out of the assets of the Corporation legally
available therefor, (1) quarterly dividends payable in cash on
the fifteenth day of March, June, September and December in each
year (each such date being referred to herein as a "Quarterly
Dividend Payment Date"), commencing on the first Quarterly
Dividend Payment Date after the first issuance of a share or a
fraction of a share of the Series A Preferred Shares, in the
amount of $10 per whole share (rounded to the nearest cent) less
the amount of all cash dividends declared on the Series A
Preferred Shares pursuant to the following clause (2) since the
immediately preceding Quarterly Dividend Payment Date or, with
respect to the first Quarterly Dividend Payment Date, since the
first issuance of any share or fraction of a share of the Series
A Preferred Shares, and (2) dividends payable in cash on the
payment date for each cash dividend declared on the Common Shares
in an amount per whole share (rounded to the nearest cent) equal
to the Formula Number then in effect times the cash dividends
then to be paid on each Common Share. In addition, if the
Corporation shall pay any dividend or make any distribution on
the Common Shares payable in assets, securities or other forms of
noncash consideration (other than dividends or distributions
solely in Common Shares), then, in each such case, the
Corporation shall simultaneously pay or make on each outstanding
whole share of the Series A Preferred Shares a dividend or
distribution in like kind equal to the Formula Number then in
effect times such dividend or distribution on each Common Share.
As used in this Section (c), the "Formula Number" shall be 1000;
provided, however, that if at any time after November 20, 1998,
the Corporation shall (i) declare or pay any dividend on the
Common Shares payable in Common Shares or make any distribution
on the Common Shares in Common Shares, (ii) subdivide (by a stock
split or otherwise) the outstanding Common Shares into a larger
number of Common Shares or (iii) combine (by a reverse stock
split or otherwise) the outstanding Common Shares into a smaller
number of Common Shares, then in each such event the Formula
Number shall be adjusted to a number determined by multiplying
the Formula Number in effect immediately prior to such event by a
fraction, the numerator of which is the number of Common Shares
that are outstanding immediately after such event and the
denominator of which is the number of Common Shares that are
outstanding immediately prior to such event (and rounding the
result to the nearest whole number); and provided, further, that
if at any time after November 20, 1998, the Corporation shall
issue any shares of its capital stock in a reclassification or
change of the outstanding Common Shares (including any such
reclassification or change in connection with a merger in which
the Corporation is the surviving corporation), then in each such
event the Formula Number shall be appropriately adjusted to
reflect such reclassification or change.
(B) The Corporation shall declare a dividend or distribution
on the Series A Preferred Shares as provided in paragraph (ii)(a)
above immediately prior to or at the same time it declares a
dividend or distribution on the Common Shares (other than a
dividend or distribution solely in Common Shares); provided,
however, that, in the event no dividend or distribution (other
than a dividend or distribution in Common Shares) shall have been
declared on the Common Shares during the period between any
Quarterly Dividend Payment Date and the next subsequent Quarterly
Dividend Payment Date, a dividend of $10 per share on the Series
A Preferred Shares shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date. The Board of
Directors may fix a record date for the determination of holders
of shares of Series A Preferred Shares entitled to receive a
dividend or distribution declared thereon, which record date
shall be the same as the record date for any corresponding
dividend or distribution on the Common Shares.
(C) Dividends shall begin to accrue and be cumulative on
outstanding Series A Preferred Shares from and after the
Quarterly Dividend Payment Date next preceding the date of
original issue of such Series A Preferred Shares; provided,
however, that dividends on Series A Preferred Shares
<PAGE>
3
which are originally issued after the record date for the
determination of holders of Series A Preferred Shares entitled to
receive a quarterly dividend and on or prior to the next
succeeding Quarterly Dividend Payment Date shall begin to accrue
and be cumulative from and after such Quarterly Dividend Payment
Date. Notwithstanding the foregoing, dividends on Series A
Preferred Shares which are originally issued prior to the record
date for the first Quarterly Dividend Payment shall be calculated
as if cumulative from and after the March 15, June 15, September
15 or December 15, as the case may be, next preceding the date of
original issuance of such Series A Preferred Shares. Accrued but
unpaid dividends shall not bear interest. Dividends paid on the
shares of Series A Preferred Shares in an amount less than the
total amount of such dividends at the time accrued and payable on
such shares shall be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding.
(D) So long as any shares of the Series A Preferred Shares
are outstanding, no dividends or other distributions shall be
declared, paid or distributed, or set aside for payment or
distribution, on the Common Shares unless, in each case, the
dividend required by this paragraph (ii) to be declared on the
Series A Preferred Shares shall have been declared and paid or
set apart.
(E) The holders of the shares of Series A Preferred Shares
shall not be entitled to receive any dividends or other
distributions except as provided herein.
(iii) Voting Rights. The holders of shares of Series A
Preferred Shares shall have the following voting rights:
(A) Each holder of Series A Preferred Shares shall be
entitled to a number of Votes equal to the Formula Number then in
effect, for each share of the Series A Preferred Shares held of
record on each matter on which holders of the Common Shares or
shareholders generally are entitled to vote, multiplied by the
number of votes per share which the holders of the Common Shares
or shareholders generally then have with respect to such matter.
(B) Except as otherwise provided herein or by applicable
law, the holders of shares of Series A Preferred Shares and the
holders of shares of Common Shares shall vote together as one
class for the election of directors of the Corporation and on all
other matters submitted to a vote of shareholders of the
Corporation.
(C) If at the time of any annual meeting of shareholders for
the election of directors, the equivalent of six quarterly
dividends (whether or not consecutive) payable on any share or
shares of Series A Preferred Shares are in default, the number of
directors constituting the board of Directors of the Corporation
shall be increased by two. In addition to voting together with
the holders of Common Shares for the election of other directors
of the Corporation, the holders of record of the Series A
Preferred Shares, voting separately as a class to the exclusion
of the holders of Common Shares, shall be entitled at said
meeting of shareholders (and at each subsequent annual meeting of
shareholders), unless all dividends in arrears have been paid or
declared and set apart for payment prior thereto, to vote for the
election of such additional directors, if any, of the
Corporation, the holders of any Series A Preferred Shares being
entitled to cast a number of votes per share of the Series A
Preferred Shares equal to the Formula Number. Until the default
in payments of all dividends which permitted the election of said
directors shall cease to exist, any director who shall have been
so elected pursuant to the next preceding sentence may be removed
at any time by, and removed without cause only by, the
affirmative vote of the holders of the Series A Preferred Shares
at the time entitled to cast a majority of the votes entitled to
be cast for the election of any such director at a special
meeting of such holders called for that purpose, and any vacancy
thereby created may be filled by the vote of such holders. If and
when such default shall cease to exist, the holders of the Series
A Preferred Shares shall be divested of the foregoing special
voting rights, subject to revesting in the event of each and
every subsequent like default in payments of dividends. Upon the
termination of the foregoing special voting rights, the terms of
office of all persons who may have been elected directors
pursuant to said special voting rights shall forthwith terminate,
and the number of directors constituting the Board of Directors
shall be reduced by two or such other number of directors as
shall have been added pursuant to the provisions of this
subsection (C). The voting rights granted by this subsection (C)
shall be in addition to any other voting rights granted to the
holders of the Series A Preferred Shares in this paragraph (iii).
(D) Except as provided herein, in paragraph (xi) or by
applicable law, holders of Series A Preferred Shares shall have
no special voting rights and their consent shall not be required
(except to the extent they are entitled to vote with holders of
Common Shares as set forth herein) for authorizing or taking any
corporate action.
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4
(iv) Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Preferred Shares as
provided in paragraph (ii) of this Section (c) are in arrears,
thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A
Preferred Shares outstanding shall have been paid in full, the
Corporation shall not
(1) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise acquire for
consideration any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
Series A Preferred Shares;
(2) declare or pay dividends on or make other distributions
on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with
the Series A Preferred Shares, except dividends paid ratably on
the Series A Preferred Shares and all such parity stock on which
dividends are payable or in arrears in proportion to the total
amounts to which the holders of all such shares are then
entitled;
(3) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking on a parity (either as
to dividends or upon liquidation, dissolution or winding up) with
the Series A Preferred Shares, provided that the Corporation may
at any time redeem, purchase or otherwise acquire shares of any
such parity stock in exchange for shares of any stock of the
Corporation ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series A Preferred
Shares; or
(4) purchase or otherwise acquire for consideration any
shares of Series A Preferred Shares, or any shares of stock
ranking on a parity with the Series A Preferred Shares, except in
accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors) to all
holders of such shares upon such terms as the Board of Directors,
after consideration of the respective annual dividend rates and
other relative rights and preferences of the respective series
and classes, shall determine in good faith will result in fair
and equitable treatment among the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration
any shares of stock of the Corporation unless the Corporation
could, under sub-paragraph (A) of this paragraph (iv), purchase
or otherwise acquire such shares at such time and in such manner.
(v) Liquidation Rights. Upon the liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary,
no distribution shall be made (1) to the holders of shares of
stock ranking junior (either as to dividends or upon liquidation,
dissolution, or winding up) to the Series A Preferred Shares
unless, prior thereto, the holders of Series A Preferred Shares
shall have received an amount equal to the accrued and unpaid
dividends and distributions thereon, whether or not declared, to
the date of such payment, plus an amount equal to the greater of
(x) $250 per share and (y) an aggregate amount per share equal to
the Formula Number then in effect times the aggregate amount to
be distributed per share to holders of Common Shares, or (2) to
the holders of stock ranking on a parity (either as to dividends
or upon liquidation, dissolution or winding up) with the Series A
Preferred Shares, except distributions made ratably on the Series
A Preferred Shares and all other such parity stock in proportion
to the total amounts as to which the holders of all such shares
are entitled upon such liquidation, dissolution or winding up.
(vi) Consolidation, Merger, etc. In each the Corporation
shall enter into any consolidation, merger, combination or other
transaction in which the Common Shares are exchanged for or
changed into other stock or securities, cash or any other
property, then in any such case the then outstanding shares of
Series A Preferred Shares shall at the same time be similarly
exchanged or changed in an amount per share equal to the Formula
Number then in effect times the aggregate amount of stock,
securities, cash or any other property (payable in kind), as the
case may be, into which or for which each Common Share is
exchanged or changed.
(vii) Redemption; No Sinking Fund.
(A) The Series A Preferred Shares shall not be subject to
redemption by the Corporation or at the option of any holder of
Series A Preferred Stock; provided, however, that the Corporation
may purchase or otherwise acquire outstanding shares of Series A
Preferred Stock in the open market or by offer to any holder or
holders of shares of Series A Preferred Stock.
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5
(B) The Series A Preferred Shares shall not be subject to or
entitled to the operation of a retirement or sinking fund.
(viii) Ranking. The Series A Preferred Shares shall rank
equally and on a parity with all other series of Preferred Shares
of the Corporation with respect to the payment of dividends and
the distribution of assets upon the liquidation, dissolution or
winding up of the Corporation.
(ix) Fractional Shares. The Series A Preferred Shares shall
be issuable upon exercise of the Rights issued pursuant to the
Rights Agreement in whole shares or in any fraction of a share
that is one one-thousandth (1/1000th) of a share or any integral
multiple of such fraction which shall entitle the holder, in
proportion to such holder's fractional shares, to receive
dividends, exercise voting rights, participate in distributions
and to have the benefit of all other rights of holders of Series
A Preferred Shares. The Corporation, prior to the first issuance
of a share or a fraction of a share of Series A Preferred Shares,
may elect (1) to issue certificates evidencing such authorized
fraction of a share of Series A Preferred Shares or (2) to issue
depository receipts evidencing such authorized fraction of a
share of Series A Preferred Shares pursuant to an appropriate
agreement between the Corporation and a depository selected by
the Corporation, provided that such agreement shall provide that
the holders of such depository receipts shall have all the
rights, privileges and preferences to which they are entitled as
holders of the Series A Preferred Shares.
(x) Reacquired Shares. Any Series A Preferred Shares
purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled promptly after the
acquisition thereof. All such shares shall upon their cancelation
become authorized but unissued shares of Preferred Shares,
without designation as to series until such shares are once more
designated as part of a particular series by resolution of the
Board of Directors.
(xi) Amendment. None of the powers, preferences and
relative, participating, optional and other special rights of the
Series A Preferred Shares as provided herein shall be amended in
any manner which would alter or change the powers, preferences,
rights or privileges of the holders of Series A Preferred Shares
so as to affect them adversely without the affirmative vote of
the holders of at least 66-2/3% of the outstanding Series A
Preferred Shares, voting as a separate class; provided, however,
that no such amendment approved by the holders of at least
66-2/3% of the outstanding Series A Preferred Shares shall be
deemed to apply to the powers, preferences, rights or privileges
of any holder of Series A Preferred Shares originally issued upon
exercise of the Rights after the time of such approval without
the approval of such holder and provided further, however, that
the Board of Directors of the Corporation, prior to the earlier
of (i) the Distribution Date and (ii) the Expiration Date (as
such terms are defined in the Rights Agreement) may amend the
powers, preferences and relative participating, optional and
other terms of the Series A Preferred Shares in any manner."
5. The Secretary of State is hereby designated as agent of the
Corporation upon whom process against it may be served. The post office
address within or without the State of New York to which the Secretary of
State shall mail a copy of any process against it served upon him is 800
Delaware Avenue, Buffalo, New York 14209.
6. The following provisions, relating to the business of the
Corporation, its affairs, its rights and powers, and the rights and powers
of its shareholders, directors and officers are set forth pursuant to
paragraph (b) of Section 402 of said Business Corporation Law:
(a) Subject to any limitation provided in any statute of the
State of New York, the Corporation in furtherance of its corporate
purposes shall have all the powers now or hereafter conferred by
statute upon, or otherwise legally attributable to, corporations
formed under said Business Corporation Law.
(b) A majority vote of the entire Board shall be necessary for
the Board to designate any committee of the Board. "Entire Board"
means the total number of directors (assuming no vacancies) which the
Corporation would have under or pursuant to the By-laws in effect at
the time such vote is taken.
(c) No holder of shares of the Corporation of any class, now or
hereafter authorized, shall have any preferential or preemptive right
to subscribe for, purchase or receive any shares of the Corporation of
any class, now or hereafter authorized, or any options or warrants for
such shares, or any rights to subscribe to purchase any shares, or any
securities convertible into or exchangeable for such shares, which may
at any time be issued, sold or offered for sale by the Corporation.
7. (a) Subject to the rights of the holders of any class or
series of capital stock having a preference over the Common Stock as to
dividends or upon liquidation, the number of the directors of the
Corporation shall be fixed from time to time by or pursuant to the By-laws
of the Corporation. The directors, other than those who may be elected by
the holders of any class or series of capital stock having a preference
over the
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6
Common Stock as to dividends or upon liquidation, shall be classified, with
respect to the time for which they severally hold office, into two classes,
as nearly equal in number as possible (but with not less than three
directors in each class or such lesser numbers as may be permitted by law),
as shall be provided in or pursuant to the By-laws of the Corporation, one
class to be originally elected for a term expiring at the annual meeting of
shareholders to be held in 1987 and another class to be originally elected
for a term expiring at the annual meeting of shareholders to be held in
1988, with each class to hold ofice until its successors are elected and
qualified. At each annual meeting of the shareholders of the Corporation,
the successors of the class of directors whose term expires at that meeting
shall be elected to hold office for a term expiring at the annual meeting
of shareholders held in the second year following the year of their
election. No decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director or cause,
directly or indirectly, a decrease in the number of classes of directors,
except as required by law.
(b) Notwithstanding paragraph (a) of this Article 7, in the event
that the number of directors of the Corporation (i) shall be fixed at
nine or a greater number or (ii) shall be fixed at a number that
would, under law, permit the directors to be divided into three
classes, then, at the next succeeding annual meeting of the
shareholders of the Corporation (the "Three-Class Annual Meeting"),
the directors, other than those who may be elected by the holders of
any class or series of capital stock having a preference over the
Common Stock as to dividends or upon liquidation, shall be divided
into three classes, as nearly equal in number as possible (but with no
less than three directors in each class or such lesser number as may
be permitted by law) as shall be provided in or pursuant to the
By-laws of the Corporation. At the Three-Class Annual Meeting, one
class shall be originally elected for a term expiring at the second
succeeding annual meeting and another class shall be originally
elected for a term expiring at the third succeeding annual meeting.
The class of directors whose term, pursuant to paragraph (a) of this
Article 7, would not have expired until the annual meeting next
succeeding the Three-Class Annual Meeting shall complete the term for
which such class was originally elected. At each annual meeting of the
shareholders subsequent to the Three-Class Annual Meeting, the
successors of the class of directors whose term expires at that
meeting shall be elected to hold office for a term expiring in the
third year following the year of their election.
(c) Subject to the rights of the holders of any class or series
of capital stock having a preference over the Common Stock as to
dividends or upon liquidation, newly created directorships resulting
from any increase in the number of directors and any vacancies on the
Board of Directors resulting from death, resignation,
disqualification, removal or other cause shall be filled by the vote
of the Board of Directors; provided, that, if the number of directors
then in office is less than a quorum, such newly-created directorships
and vacancies shall be filled by the vote of a majority of the
remaining directors then in office. Any director elected in accordance
with the preceding sentence shall hold office until the next meeting
of shareholders at which the election of directors is in the regular
order of business and until such director's successor shall have been
elected and qualified.
(d) Shareholder nominations of director candidates and
shareholder proposals shall be made in the manner provided in the
By-laws.
8. In furtherance and not in limitation of the powers conferred
upon it by law, the Board of Directors of the Corporation is expressly
authorized to adopt, repeal, alter or amend the By-laws of the Corporation,
provided that the vote of a majority of the entire Board of Directors shall
be required for any amendment to the By-laws increasing or decreasing the
number of directors of the Corporation. In addition to any requirements of
law and any other provisions of this Certificate of Incorporation or any
resolution or resolutions of the Board of Directors adopted pursuant to
Article 4 of this Certificate of Incorporation (and notwithstanding the
fact that a lesser percentage may be specified by law, this Certificate of
Incorporation or any such resolution or resolutions), the affirmative vote
of the holders of 66 2/3% or more of the combined voting power of the then
outstanding shares of all classes and series of the Corporation entitled to
vote generally in the election of directors ("Voting Stock"), voting
together as a single class, shall be required to adopt, amend, alter or
repeal any provision of the By-laws.
9. In addition to any requirements of law and any other
provisions of this Certificate of Incorporation or any resolution or
resolutions of the Board of Directors adopted pursuant to Article 4 of this
Certificate of Incorporation (and notwithstanding the fact that a lesser
percentage may be specified by law, this Certificate of Incorporation or
any such resolution or resolutions), the affirmative vote of the holders of
66 2/3% or more of the combined voting power of the then outstanding shares
of Voting Stock, voting together as a single class, shall be required to
amend, alter or repeal, or adopt any provision inconsistent with, this
Article 9, or Articles 7 or 8 of this Certificate of Incorporation. Subject
to the foregoing provisions of this Article 9, the Corporation reserves the
right to amend, alter or repeal any provision contained in this Certificate
of Incorporation, in the manner now or hereafter prescribed by statute, and
all rights conferred upon shareholders herein are subject to this
reservation.
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7
10. No director of the corporation shall be personally liable to
the corporation or its shareholders for damages for any breach of duty in
such capacity occurring after the adoption of this Article 10, except as
otherwise provided by law.
