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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON DC 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
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MAY 19, 1998
Date of Report
(MAY 12, 1998)
(Date of earliest event reported)
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HBO & COMPANY
(Exact name of registrant as specified in its charter)
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DELAWARE
(State or other jurisdiction of incorporation)
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<S> <C>
0-9900 37-0986839
(Commission File Number) (Employer Identification No.)
301 PERIMETER CENTER NORTH 30346
ATLANTA, GA (Zip Code)
(Address of principal executive offices)
</TABLE>
(770) 393-6000
Registrant's telephone number, including area code
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ITEM 5: OTHER EVENTS
On May 12, 1998, the stockholders of HBO & Company (the "Company" or "HBOC")
approved an amendment to the Company's Certificate of Incorporation to increase
the number of shares of authorized common stock from 250 million to 1 billion.
The amended Certificate of Incorporation was filed with the state of Delaware on
May 14, 1998.
On May 12, 1998, the Board of Directors of the Company declared a
two-for-one stock split to be effected in the form of a stock dividend. The
dividend will be payable on June 9, 1998, to all stockholders of record as of
May 27, 1998.
On May 12, 1998, the Board of Directors of the Company declared a cash
dividend of $.02 per share (after adjustment for the stock dividend) payable
July 21, 1998, to stockholders of record on June 30, 1998.
On May 12, 1998, the Board of Directors of the Company elected M. Christine
Jacobs, president, chief executive officer and vice-chairman of Theragenics
Corporation of Atlanta, to the HBOC Board of Directors.
ITEM 7: FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits.
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EXHIBIT NO. DESCRIPTION
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<C> <S>
3(i) HBO & Company Certificate of Incorporation, as amended
</TABLE>
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
HBO & COMPANY
(Registrant)
Date: May 19, 1998
/s/ JAY P. GILBERTSON
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Jay P. Gilbertson
President, Co-Chief Operating Officer,
Chief Financial Officer, Treasurer,
Principal Accounting Officer
and Secretary
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EXHIBIT 3(i)
CERTIFICATE OF INCORPORATION
OF
HBO & COMPANY
* * * * *
1. The name of the corporation is
HBO & COMPANY
2. The address of its registered office in the State of Delaware is No.
100 West Tenth Street, in the City of Wilmington, County of New Castle. The name
of its registered agent at such address is The Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted
is to engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the Company shall have
authority to issue is one billion and one million (1,001,000,000), one billion
(1,000,000,000) of which shall be common stock with a par value of five cents
($.05) per share, amounting in the aggregate to fifty million dollars
($50,000,000), and one million (1,000,000) of which shall be preferred stock
without par value.
The preferred stock may be issued from time to time in one or more
series. The powers, designations, preferences, and other rights and
qualifications, limitations or restrictions of the preferred stock of each
series shall be such as are stated and expressed in this Article 4 and, to the
extent not stated and expressed herein, shall be such as may be fixed by the
board of directors (authority so to do being hereby expressly granted) and
stated and expressed in a resolution or resolutions adopted by the board of
directors, providing for the initial issue of preferred stock of such series.
Such resolution or resolutions shall (a) fix the dividend rights of holders of
shares of such series, (b) fix the terms on which stock of such series may be
redeemed if the shares of such series are to be redeemable, (c) fix the rights
of the holders of stock of such series upon dissolution or any distribution of
assets, (d) fix the terms or amount of the sinking fund, if any, to be provided
for the purchase or redemption of stock of such series, (e) fix the terms upon
which the stock of such series may be converted into or exchanged for stock of
any other class or classes or of any one or more series of preferred stock if
the shares of such series are to be convertible or exchangeable, (f) fix the
voting rights, if any, of shares of such series, and (g) fix such other powers,
designations, preferences and relative, participating, optional, or other
special rights and qualifications, limitations, or restrictions thereof desired
to be so fixed.
Except to the extent otherwise provided in the resolution or
resolutions of the board of directors providing for
<PAGE>
the initial issue of shares of a particular series or expressly required by law,
holders of shares of preferred stock of any series shall be entitled to one vote
for each share thereof so held, shall vote share for share with the holders of
the common stock without distinction as to class, and shall not be entitled to
vote separately as a class or series of a class. The number of shares of
preferred stock authorized to be issued may be increased or decreased from time
to time by the affirmative vote of the holders of a majority of the stock of the
Corporation entitled to vote, and the holders of the preferred stock shall not
be entitled to vote separately as a class or series of a class on any such
increase or decrease.
All shares of any one series of preferred stock shall be
identical with each other in all respects except that shares of any one
series issued at different times may differ as to the dates from which
dividends thereon shall accumulate, and all series of preferred stock shall
rank equally and be identical in all respects except as specified in the
respective resolutions of the board of directors providing for the initial
issue thereof.
Subject to the prior and superior rights of the preferred stock
as set forth in any resolution or resolutions of the board of directors
providing for the initial issuance of any particular series of preferred
stock, such dividends (payable in cash, stock or otherwise) as may be
determined by the board of directors may be declared and paid on the common
stock from time to time out of any funds legally available therefor, and the
preferred stock shall not be entitled to participate in any such dividend.
5. The name and mailing address of each incorporator is as follows:
NAME MAILING ADDRESS
B.A. Pennington 100 West Tenth Street
Wilmington, Delaware 19801
W.J. Reif 100 West Tenth Street
Wilmington, Delaware 19801
R.F. Andrews 100 West Tenth Street
Wilmington, Delaware 19801
6. The corporation is to have perpetual existence.
7. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized to make, alter or repeal
the Bylaws of the corporation.
8. Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
board of directors or in the Bylaws of the corporation. Elections of directors
need not be by written ballot unless the Bylaws of the corporation shall so
provide.
9. Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class
<PAGE>
of them, any court of equitable jurisdiction within the State of Delaware
may, on the application in a summary way of this corporation or of any
creditor or stockholder thereof or on the application of any receiver or
receivers appointed for this corporation under the provisions of Section 291
of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this corporation
under the provisions of Section 279 of Title 8 of the Delaware Code order a
meeting of the creditors or class of creditors, and/or of the stockholders or
class of stockholders of this corporation, as the case may be, to be summoned
in such manner as the said court directs. If a majority in number
representing three-fourths in value of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of this corporation, as
the case may be, agree to any compromise or arrangement and to any
reorganization of this corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been
made, be binding on all the creditors or class of creditors, and/or on all
the stockholders or class of stockholders, of this corporation, as the case
may be, and also on this corporation.
10. Except as set forth in paragraphs 11 and 12 hereof, the corporation
reserves the right to amend, alter, change or repeal any provision contained in
this certificate of incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred upon stockholders herein are granted subject
to this reservation.
11. In addition to the requirements of law and paragraph 12 hereof:
(A) The affirmative vote of the holders of at least
four-fifths of the outstanding shares of Common Stock (whether or not
the holders of such shares are present or represented at any meeting)
not Beneficially Owned by Controlling Persons shall be required for the
approval of a Business Combination unless:
(1) all of the following conditions have been met:
(a) the Business Combination will result in an
involuntary sale, redemption, cancellation, or other
termination of ownership of all shares of Common Stock of
the corporation owned by stockholders who do not vote in
favor of the Business Combination;
(b) the consideration to be received by such
stockholders for such shares shall be in cash or in the
same form as the Controlling Person, Affiliate of a
Controlling Person, Associate of a Controlling Person, or
Affiliate has previously paid for such shares or if the
Controlling Person, Affiliate of a Controlling Person,
Associate of a Controlling Person, or Affiliate has paid
for such shares with varying forms of consideration, the
form of consideration for such shares shall be either cash
or the form used to acquire the largest number of such
shares previously acquired
<PAGE>
by it;
(c) the cash or Fair Market Value as of the date of
consummation of the Business Combination or consideration
other than cash to be received by such stockholders for
such shares shall be at least equal to the Minimum Price
Per Share;
(d) a proxy or information statement responsive to the
requirements of the Securities Exchange Act of 1934 shall
be mailed to all stockholders of the corporation at least
30 days prior to the consummation of such Business
Combination for the purpose of soliciting stockholder
approval of the Business Combination; and
(e) after such Controlling Person has become a
Controlling Person, such Controlling Person shall not have
received the benefit, directly or indirectly (except
proportionately as a shareholder of the corporation) of
any loans, advances, guarantees, pledges or other
financial assistance or any tax credits or other tax
advantages provided by the corporation or a Subsidiary,
whether in anticipation of or in connection with such
Business Combination or otherwise; or
(2) both of the following conditions shall have been met:
(a) the Continuing Directors of the corporation shall by a
majority vote at a meeting at which a Continuing Director Quorum
was present have adopted a resolution approving the Business
Combination and have determined to recommend it for approval by
the holders of Common Stock of the corporation; and (b) at the
time of adoption of such resolution, Continuing Directors shall
have comprised at least a majority of the Board of Directors.
(B) Nothing contained in this paragraph 11 shall be construed
to relieve any Controlling Person, Affiliate of a Controlling
Person, Associate of a Controlling Person, or Affiliate from any
fiduciary obligation imposed by law.
(C) A majority of the Continuing Directors at a meeting at
which a Continuing Director Quorum was present shall have the power
and duty to determine in good faith, on the basis of information
known to them after reasonable inquiry, all facts necessary to
determine compliance with this paragraph 11.
(D) The vote required for any amendment to, or repeal of, all
or any portion of this paragraph 11 shall be the affirmative vote of
the holders of at least four-fifths of the outstanding shares of
Common Stock (whether or not the holders of such shares are present
or represented at any meeting) not Beneficially Owned by Controlling
Persons; provided, however, that if (i) the Continuing Directors of
the corporation shall by a majority vote at a meeting at which a
Continuing Directors Quorum was present have adopted a resolution
approving the amendment or repeal proposal and have determined to
recommend it for approval by the holders
<PAGE>
of Common Stock of the corporation, and (ii) at the time of adoption
of such resolution, Continuing Directors shall have comprised at
least a majority of the Board of Directors, then the vote required
shall be the affirmative vote of the holders of at least a majority
of the outstanding shares of Common Stock of the corporation.
(E) Capitalized terms used in this paragraph 11 shall have the
meanings assigned to them in paragraph 14 hereof.
12. In addition to the requirements of law and paragraph 11 hereof,
the affirmative vote of the holders of at least four-fifths of the
outstanding shares of Common Stock (whether or not the holders of such shares
are present or represented at any meeting) shall be required for the
following transactions:
(A) Any plan of merger or consolidation of the corporation
with another corporation, with respect to which a stockholder vote
is required by law;
(B) Any sale, lease, or exchange of all or substantially
all of the property and assets of the corporation, with respect to
which a stockholder vote is required by law;
(C) Any dissolution of the corporation;
(D) Shareholder adoption of any amendment to, repeal of, or
establishment of, a Bylaw; or
(E) Any amendment to, or repeal of, all or any portion of
this paragraph 12; provided, however, that if (i) the Continuing
Directors of the corporation shall by majority vote at a meeting at
which a Continuing Director Quorum was present have adopted a
resolution approving one of the enumerated matters and have
determined to recommend it for approval by the holders of Common
Stock of the corporation, and (ii) at the time of adoption of such
resolution, Continuing Directors shall have comprised at least a
majority of the Board of Directors, then the vote required shall be
the affirmative vote of the holders of at least a majority of the
outstanding Common Stock of the corporation. Capitalized terms used
in this paragraph 12 shall have the meanings assigned to them in
paragraph 14 hereof.
13. Stockholder Action.
(A) Any action by the stockholders of the corporation shall be
taken at a meeting of stockholders and no corporate action may be taken
by written consent of the stockholders entitled to vote upon such
action.
(B) Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute, (i) may be called by
the Chairman of the Board or the President, or by the holders of
four-fifths of the outstanding shares of Common Stock of the
corporation; and (ii) shall be called by the Chairman of the Board or
President at the request in writing of three-fourths of the directors
then in office. Such request shall state the purpose or purposes of the
proposed meeting.
(C) The vote required for any amendment to, or repeal of, all
or any portion of this paragraph 13 shall be the affirmative vote of
the holders of at least four-fifths of the outstanding shares of Common
Stock of the corporation (whether or not the holders of such shares are
present or
<PAGE>
represented at any meeting); provided, however, that if (i) the
Continuing Directors of the corporation shall by a majority vote at
a meeting at which a Continuing Director Quorum was present have
adopted a resolution approving the amendment or repeal proposal and
have determined to recommend it for approval by the holders of
Common Stock of the corporation, and (ii) at the time of such
recommendation, Continuing Directors shall have comprised at least a
majority of the Board of Directors, then the vote required shall be
the affirmative vote of the holders of at least a majority of the
outstanding Common Stock of the corporation.
(D) Capitalized terms used in this paragraph 13 shall have the
meanings assigned to them in paragraph 14 hereof.
14. Definitions. The following definitions are to be incorporated in
the appropriate provisions of the foregoing paragraphs:
"Affiliate" shall mean a Person that directly, or
indirectly, through one or more intermediaries, controls, or
is controlled by, or is under common control with another
Person.
"Associate" shall mean: (i) any corporation or
organization of which a Person is an officer or partner or is,
directly or indirectly, the Beneficial Owner of five percent
or more of any class of equity securities; (ii) any trust or
other estate in which a Person has a five percent or larger
beneficial interest of any nature or as to which a Person
serves as trustee or in a similar fiduciary capacity; or (iii)
the immediate family of a Person, including without
limitation, a spouse, parents, children (even if of legal age
and living independently), siblings, fathers- and
mothers-in-law, sons- and daughters-in-law, and brothers- and
sisters-in-law.
"Beneficial Ownership" shall include without
limitation: (i) all shares directly or indirectly owned by a
Person, by an Affiliate of a Person, by an Associate of a
Person, or an Affiliate; (ii) all shares which such Person,
Affiliate, or Associate has the right to acquire (a) through
the exercise of any option, warrant or right (whether or not
currently exercisable), (b) through the conversion of a
security, (c) pursuant to the power to revoke a trust,
discretionary account, or similar arrangement, or (d) pursuant
to the automatic termination of a trust, discretionary
account, or similar arrangement; and (iii) all shares as to
which such Person, Affiliate, or Associate, directly or
indirectly, through any contract, arrangement, understanding,
relationship, or otherwise (including without limitation any
written or unwritten agreement to act in concert but
specifically excluding any participation agreement,
arrangement, understanding or relationship between or among
any two or more commercial banks made or established in
connection with and in furtherance of a bona fide lending
arrangement with the corporation and/or one or
<PAGE>
more Subsidiaries) has or shares voting power (which includes
the power to vote or to direct the voting of such shares) or
investment power (which includes the power to dispose or to
direct the disposition of such shares) or both.
"Business Combination" shall mean: (i) any merger or
consolidation of the corporation with or into a Controlling
Person, Affiliate of a Controlling Person, Associate of a
Controlling Person, or Affiliate; (ii) any sale, lease,
exchange, transfer, or other disposition, including without
limitation, a mortgage or any other security device, of all or
any Substantial Part of the assets of the corporation or a
Subsidiary, including without limitation, any voting
securities of a Subsidiary, to or with a Controlling Person,
Affiliate of a Controlling Person, Associate of a Controlling
Person, or Affiliate; (iii) any merger into or consolidation
with the corporation or a Subsidiary, of a Controlling Person,
an Affiliate of a Controlling Person, an Associate of a
Controlling Person, or Affiliate; (iv) any sale, lease,
exchange, transfer, or other disposition to the corporation or
a Subsidiary of all or any part of the assets of a Controlling
Person, Affiliate of a Controlling Person, Associate of a
Controlling Person, or Affiliate; (v) any reclassification of
Common Stock of the corporation or any recapitalization
involving Common Stock of the corporation, that would have the
effect of increasing the voting power of a Controlling Person,
Affiliate of a Controlling Person, Associate of a Controlling
Person, or Affiliate; and (vi) any agreement, contract, or
other arrangement providing for any of the transactions
described in this definition of Business Combination.
"Common Stock" shall mean the common stock of the
corporation.
"Continuing Director" shall mean any member of the
Board of Directors of the corporation who is unaffiliated
with a Controlling Person and was a member of the Board
prior to the time that the Controlling Person became a
Controlling Person, and any successor of a Continuing
Director who is unaffiliated with a Controlling Person and
is recommended or elected to succeed a Continuing Director
by a majority of Continuing Directors, provided that such
recommendation or election shall only be effective if made
at a meeting at which a Continuing Director Quorum is
present.
"Continuing Director Quorum" shall mean a majority
of the Continuing Directors capable of exercising the
powers conferred upon them under the provisions of the
certificate of incorporation or the Bylaws of the
corporation or by law.
"Control" shall mean the possession, directly or
indirectly, of the power to direct or cause the direction
of the management and policies of a Person,
<PAGE>
whether through the ownership of voting securities, by
contract, or otherwise.
"Controlling Person" shall mean any Person who
Beneficially Owns a number of shares of Common Stock of the
corporation, whether or not such number includes shares not
then issued which exceeds a number equal to ten percent of
the outstanding shares of Common Stock of the corporation.
"Fair Market Value" shall mean: (i) in the case of
stock, the highest per share public market asked price,
last, or closing price in the event the shares of stock are
not listed on a national securities exchange or the highest
per share closing public market price in the event the
shares of stock are listed on a national securities
exchange during the 30-day period immediately preceding the
date in question or if no such quoted prices are available,
the fair market value on the date in question of a share of
such stock as determined by a majority of the Continuing
Directors in good faith at a meeting at which a Continuing
Director Quorum was present; and (ii) in the case of
property other than cash or stock, the fair market value of
such property on the date in question as determined by a
majority of the Continuing Directors in good faith at a
meeting at which a Continuing Director Quorum was present.
"Minimum Price Per Share" shall mean the sum of
(i) the higher of (a) the highest gross per share price
paid or agreed to be paid to acquire any shares of Common
Stock of the corporation Beneficially Owned by a
Controlling Person, provided such payment or agreement to
make payment was made within three years immediately prior
to the records date set to determine the stockholders
entitled to vote on the Business Combination in question,
or, in the case of a Section 253 Merger, three years
immediately prior to the effective date of such Section 253
Merger, and (b) the highest per share public market asked
price, last or closing price in the event the shares are
not listed on a national securities exchange or the highest
per share closing public market price in the event the
shares are listed on a national securities exchange, for
such shares during such three year period; plus (ii) the
aggregate amount, if any, by which five percent for each
year, beginning on the date on which such Controlling
Person became a Controlling Person, of such higher per
share price exceeds the aggregate amount of all Common
Stock dividends per share paid in cash since the date on
which such Person became a Controlling Person. The
calculation of the Minimum Price Per Share shall require
appropriate adjustments for capital changes, including
without limitation, stock splits, stock dividends, reverse
stock splits, and stock distributions.
"Person" shall mean an individual, a corporation, a
partnership, an association, a joint-stock company, a
<PAGE>
trust, any unincorporated organization, and any other
entity or group. Without limiting the generality of the
foregoing, when two or more Persons act as a syndicate or
other group for the purpose of acquiring, holding or
disposing of any stock of the corporation, such syndicate
or other group shall be deemed a Person.
"Section 253 Merger" shall mean any Merger of the
corporation into another corporation which is a Controlling
Person, Affiliate of a Controlling Person, Associate of a
Controlling Person, or an Affiliate, pursuant to Section
253 of the Delaware General Corporation Laws, as amended
from time to time, or any successor or replacement statute,
provided, that such amended, successor or replacement
statute does not give voting rights to the stockholders of
the corporation with respect to the merger. While such
voting rights are part of Section 253 as amended, or of any
successor or replacement statute, a merger under such
section shall not be deemed a Section 253 Merger for
purposes of this definition.
"Securities Exchange Act of 1934" shall mean the
Securities Exchange Act of 1934, as amended from time to
time, as well as any successor or replacement statute.
"Subsidiary" shall mean any corporation twenty
percent or more of whose outstanding securities
representing the right to vote for the election of
directors is Beneficially Owned by the corporation and/or
one or more Subsidiaries.
"Substantial Part" shall mean more than ten
percent of the total assets of the corporation or a
Subsidiary, as appropriate, as shown on the audited balance
sheet of the corporation as of the end of the most recent
fiscal year ended prior to the time the determination is
being made.
15. To the fullest extent permitted by the Delaware General Corporation
Law as the same exists or may hereafter be amended, a Director of this
corporation shall not be liable to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a Director, except for
liability (i) for any breach of the Director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, or (iv) for any transaction
from which the Director derived any improper personal benefit.
<PAGE>
CERTIFICATE OF DESIGNATIONS
of
Series A Junior Participating Preferred Stock
of
HBO & Company
(Pursuant to Section 151 of the
General Corporation Law of the State of Delaware)
HBO & Company, a corporation organized and existing under the General
Corporation Law of the State of Delaware (hereinafter called the "Corporation"),
DOES HEREBY CERTIFY:
That, pursuant to authority vested in the Board of Directors of the
Corporation by its Certificate of Incorporation, and pursuant to the provisions
of Section 151 of the General Corporation Law, the Board of Directors of the
Corporation on February 12, 1991 adopted the following resolution providing for
the issuance of a series of Preferred Stock:
RESOLVED, that pursuant to the authority expressly vested in the Board
of Directors of the Corporation (hereinafter called the "Board of Directors" or
the "Board") by the Certificate of Incorporation of the Corporation, a series of
Preferred Stock, without par value (the "Preferred Stock"), of the Corporation
be, and it hereby is, created, and that the designation and amount thereof and
the powers, designations, preferences and relative, participating, optional and
other special rights of the shares of such series, and the qualifications,
limitations or restrictions thereof are as follows:
I. Designation and Amount
The shares of such series shall be designated as "Series A Junior
Participating Preferred Stock" (the "Series A Preferred Stock") and the number
of shares constituting the Series A Preferred Stock shall be 20,000. Such number
of shares may be increased or decreased by resolution of the Board of Directors;
provided, that no decrease shall reduce the number of shares of Series A
Preferred Stock to a number less than the number of shares then outstanding plus
the number of shares reserved for issuance upon the exercise of outstanding
options, rights or warrants or upon the conversion of any outstanding securities
issued by the Corporation convertible into Series A Preferred Stock.
II. Dividends and Distributions
(A) Subject to the rights of the holders of any shares of any series of
Preferred Stock (or any similar stock) ranking prior and superior to the Series
A Preferred Stock with respect
<PAGE>
to dividends, the holders of shares of Series A Preferred Stock, in preference
to the holders of Common Stock, par value $.05 per share (the "Common Stock"),
of the Corporation, and of any other junior stock, shall be entitled to receive,
when, as and if declared by the Board of Directors out of funds legally
available for the purpose, quarterly dividends payable in cash on the first 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
fraction of a share of Series A Preferred Stock (the "First Quarterly Dividend
Payment Date"), in an amount per share (rounded to the nearest cent) equal to
the greater of (i) $1.00 or (ii) subject to the provision for adjustment
hereinafter set forth, 1,000 times the aggregate per share amount of all cash
dividends, and 1,000 times the aggregate per share amount (payable in kind) of
all non-cash dividends or other distributions, other than a dividend payable in
shares of Common Stock or a subdivision of the outstanding shares of Common
Stock (by reclassification or otherwise), declared on the Common Stock 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 Series A Preferred Stock. In the event the Corporation
shall at any time (a) declare a dividend on the outstanding shares of Common
Stock payable in shares of Common Stock, (b) subdivide the outstanding shares of
Common Stock, (c) combine the outstanding shares of Common Stock in a smaller
number of shares, or (d) issue any shares of its capital stock in a
reclassification of the outstanding shares of Common Stock (including any such
reclassification in connection with a consolidation or merger in which the
Corporation is the continuing or surviving corporation), then, in each such case
and regardless of whether any shares of Series A Preferred Stock are then issued
or outstanding, the amount to which holders of shares of Series A Preferred
Stock would otherwise be entitled immediately prior to such event under clause
(ii) of the preceding sentence shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
(B) The Corporation shall declare a dividend or distribution on the
Series A Preferred Stock as provided in paragraph (A) of this Section II
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock); provided, however,
that, in the event no dividend or distribution shall have been declared on the
Common Stock during the period between any Quarterly Dividend Payment Date and
the next subsequent Quarterly Dividend Payment Date, a dividend of $1.00 per
share on the Series A Preferred Stock shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from the Quarterly
<PAGE>
Dividend Payment Date next preceding the date of issue of such shares, unless
(i) the date of issue of such shares is prior to the record date for the First
Quarterly Dividend Payment Date, in which case dividends on such shares shall
begin to accrue from the date of the first issuance of a share of Series A
Preferred Stock, or (ii) the date of issue is a Quarterly Dividend Payment Date
or is a date after the record date for the determination of holders of shares of
Series A Preferred Stock entitled to receive a quarterly dividend and before
such Quarterly Dividend Payment Date, in either of which events such dividends
shall begin to accrue and be cumulative from such Quarterly Dividend Payment
Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on
the shares of Series A Preferred Stock 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. The Board of Directors may fix a record date for the determination
of holders of shares of Series A Preferred Stock entitled to receive payment of
a dividend or distribution declared thereon, which record date shall be not more
than 60 calendar days prior to the date fixed for the payment thereof.
III. Voting Rights
The holders of shares of Series A Preferred Stock shall have the
following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each
share of Series A Preferred Stock shall entitle the holder thereof to 1,000
votes on all matters submitted to a vote of the stockholders of the Corporation.
In the event the Corporation shall at any time (i) declare a dividend on the
outstanding shares of Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding shares of Common Stock, (iii) combine the outstanding
shares of Common Stock in a smaller number of shares, or (iv) issue any shares
of its capital stock in a reclassification of the outstanding shares of Common
Stock (including any such reclassification in connection with a consolidation or
merger in which the Corporation is the continuing or surviving corporation),
then, in each such case and regardless of whether any shares of Series A
Preferred Stock are then issued or outstanding, the number of votes per share to
which holders of shares of Series A Preferred Stock would otherwise be entitled
immediately prior to such event shall be adjusted by multiplying such number by
a fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
(B) Except as otherwise provided herein, in any other Certificate of
Designations creating a series of Preferred Stock or any similar stock, or by
law, the holders of shares of Series A Preferred Stock and the holders of shares
of Common Stock and any other capital stock of the Corporation having general
voting rights shall vote together as one class on all matters submitted
<PAGE>
to a vote of stockholders of the Corporation.
(C) Except as set forth herein, or as otherwise provided by law,
holders of Series A Preferred Stock shall have no voting rights.
IV. Certain Restrictions
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Preferred Stock as provided in Section II are in
arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A Preferred Stock
outstanding shall have been paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other distributions,
on any shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred
Stock;
(ii) declare or pay dividends, or make any 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 Stock, except dividends paid ratably on the Series A
Preferred Stock 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;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series
A Preferred Stock, provided that the Corporation may at any time
redeem, purchase or otherwise acquire shares of any such junior 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 Stock; or
(iv) redeem or purchase or otherwise acquire for consideration
any shares of Series A Preferred Stock, or any shares of stock ranking
on a parity with the Series A Preferred Stock, 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 paragraph (A) of this Section
IV, purchase or otherwise acquire such shares at such time and in such manner.
<PAGE>
V. Reacquired Shares
Any shares of Series A Preferred Stock purchased or otherwise acquired
by the Corporation in any manner whatsoever shall be retired and cancelled
promptly after the acquisition thereof. All such shares shall upon their
cancellation become authorized but unissued shares of Preferred Stock and may be
reissued as part of a new series of Preferred Stock subject to the conditions
and restrictions on issuance set forth herein, in the Certificate of
Incorporation, or in any other Certificate of Designations creating a series of
Preferred Stock or any similar stock or as otherwise required by law.
VI. Liquidation, Dissolution or Winding Up
Upon any liquidation, dissolution or winding up of the Corporation, no
distribution shall be made (A) 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 Stock unless, prior thereto, the holders of shares of Series
A Preferred Stock shall have received $1,000 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment; provided, however, that the holders of shares of
Series A Preferred Stock shall be entitled to receive an aggregate amount per
share, subject to the provision for adjustment hereinafter set forth, equal to
1,000 times the aggregate amount to be distributed per share to holders of
shares of Common Stock, or (B) to the holders of shares of stock ranking on a
parity (either as to dividends or upon liquidation, dissolution or winding up)
with the Series A Preferred Stock, except distributions made ratably on the
Series A Preferred Stock and all such parity stock in proportion to the total
amounts to which the holders of all such shares are entitled upon such
liquidation, dissolution or winding up. In the event the Corporation shall at
any time (i) declare a dividend on the outstanding shares of Common Stock
payable in shares of Common Stock, (ii) subdivide the outstanding shares of
Common Stock, (iii) combine the outstanding shares of Common Stock in a smaller
number of shares, or (iv) issue any shares of its capital stock in a
reclassification of the outstanding shares of Common Stock (including any such
reclassification in connection with a consolidation or merger in which the
Corporation is the continuing or surviving corporation), then, in each such case
and regardless of whether any shares of Series A Preferred Stock are then issued
or outstanding, the aggregate amount to which each holder of shares of Series A
Preferred Stock would otherwise be entitled immediately prior to such event
under the proviso in clause (A) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction, the numerator of which in the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
VII. Consolidation, Merger, etc.
<PAGE>
In case the Corporation shall enter into any consolidation, merger,
combination or other transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities, cash and/or any other
property, then, in each such case, each share of Series A Preferred Stock shall
at the same time be similarly exchanged or changed into an amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 1,000
times the aggregate amount of stock, securities, cash and/or any other property
(payable in kind), as the case may be, into which or for which each share of
Common Stock is changed or exchanged. In the event the Corporation shall at any
time (A) declare a dividend on the outstanding shares of Common Stock payable in
shares of Common Stock, (B) subdivide the outstanding shares of Common Stock,
(C) combine the outstanding shares of Common Stock in a smaller number of
shares, or (D) issue any shares of its capital stock in a reclassification of
the outstanding shares of Common Stock (including any such reclassification in
connection with a consolidation or merger in which the Corporation is the
continuing or surviving corporation), then, in each such case and regardless of
whether any shares of Series A Preferred Stock are then issued or outstanding,
the amount set forth in the preceding sentence with respect to the exchange or
change of shares of Series A Preferred Stock shall be adjusted by multiplying
such amount by a fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding immediately
prior to such event.
VIII. Redemption
The shares of Series A Preferred Stock shall not be redeemable.
IX. Rank
The Series A Preferred Stock shall rank, with respect to the payment of
dividends and the distribution of assets, junior to all series of any other
class of the Corporation's Preferred Stock.
X. Amendment
The Certificate of Incorporation of the Corporation shall not be
amended in any manner which would materially alter or change the powers,
preferences or special rights of the Series A Preferred Stock so as to affect
then adversely without the affirmative vote of the holders of at least
two-thirds of the outstanding shares of Series A Preferred Stock, voting
together as a single series.
