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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A12G
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Hach Company
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(Exact name of registrant as specified in its charter)
Delaware 42-070442
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(State of incorporation (I.R.S. Employer
or organization) Identification No.)
5600 Lindbergh Drive
Loveland, Colorado 80537
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act: None
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), please check the following box. / /
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), please check the following box. /X/
Securities Act registration statement file number to which this form
relates: N/A
Securities to be registered pursuant to Section 12(g) of the Act:
Class A Common Stock, par value $1.00 per share
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(Title of Class)
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
The following summary description is subject to the detailed provisions of
the Company's Restated Certificate of Incorporation, as amended ("Restated
Certificate") and the Company's By-laws, as amended, and does not purport to
be complete and is qualified in its entirety by reference thereto.
The authorized capital stock of the Company consists of 25,000,000 shares of
Common Stock, par value $1.00 per share, and 20,000,000 shares of Class A
Common Stock, par value $1.00 per share. The Common Stock and the Class A
Common Stock are collectively referred to herein as the "Common Stocks." A
listing application with respect to the Class A Common Stock has been filed
with the NASDAQ Stock Market.
GENERAL
Except as otherwise required by the Delaware General Corporation Law
("DGCL") or as otherwise provided in the Company's Amended Restated
Certificate, each share of Common Stock and each share of Class A Common
Stock have identical powers, preferences and rights in all other respects.
There are no redemption or sinking fund provisions applicable to the Common
Stock or the Class A Common Stock. Holders of Common Stock and Class A
Common Stock are not subject to further calls or assessments by the Company.
All outstanding shares of Common Stock and Class A Common Stock, when validly
issued, will be fully paid and non-assessable.
VOTING
The holders of shares of Common Stock are entitled to one vote on any
matter to be voted on by the stockholders of the Company. There is no
provision in the Company's Amended Restated Certificate permitting cumulative
voting. The holders of shares of Class A Common Stock are not entitled to
vote on any matter to be voted on by the stockholders of the Company, except
as required under the DGCL or the Company's Amended Restated Certificate.
Under the Amended Restated Certificate and the DGCL, only the affirmative
vote of the holders of a majority of the outstanding shares of Common Stocks
entitled to vote will be required to amend the Amended Restated Certificate
or to authorize additional shares of Class A Common Stock or Common Stock;
and the affirmative vote of the holders of a majority of the Common Stocks
entitled to vote will be required to approve any merger or consolidation of
the Company with or into any other corporation or sale of substantially all
its assets or to approve the dissolution of the Company, subject to the
provisions of Article Ninth of the Company's Amended Restated Certificate
which is described more fully below under "Certain Provisions of the Amended
Restated Certificate and By-laws; Delaware Anti-takeover Provisions." Except
in certain limited circumstances described below, the holders of the Common
Stock will elect the entire Board of Directors. In addition, as permitted
under the DGCL, the Amended Restated Certificate provides that the number of
authorized shares of either class may be increased or decreased, but not
below the number of shares then outstanding, by the affirmative vote of the
holders of a majority of the Common Stocks entitled to vote.
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Under the DGCL, the holders of Class A Common Stock will be entitled to
vote on proposals to change the par value of the Class A Common Stock or to
alter or change the powers, preferences or special rights of shares of Class A
Common Stock, including the Class A Protection Provision (as described below),
which may affect them adversely.
DIVIDENDS AND DISTRIBUTIONS
Each share of Common Stock and Class A Common Stock will be equal in
respect to dividends and other distributions in cash, stock or property,
including distributions in connection with any recapitalization and upon
liquidation, dissolution, or winding up of the Company, except that (i) a
dividend or distribution in cash or property on a share of Class A Common
Stock may be greater than any dividend or distribution in cash or property on
a share of Common Stock, and (ii) dividends or other distributions payable on
the Class A Common Stock and Common Stock in shares of capital stock shall be
made to all holders of the Class A Common Stock and Common Stock and may be
made (a) in shares of Class A Common Stock to the holders of Class A Common
Stock and in shares of Common Stock to the holders of Common Stock, (b) in
shares of Class A Common Stock to the holders of Class A Common Stock and to
holders of Common Stock, or (c) in any other authorized class or series of
capital stock to the holders of Class A Common Stock and Common Stock. In no
event will either the Class A Common Stock or Common Stock be split,
subdivided, or combined unless the other is proportionately split,
subdivided, or combined.
Although the Board of Directors has authority under the Amended Restated
Certificate to pay dividends and make distributions on the Class A Common
Stock in amounts greater than on the Common Stock, the Board of Directors
currently intends to pay dividends on an equal per share basis.
MERGERS AND CONSOLIDATIONS
Each holder of Class A Common Stock and Common Stock will be entitled to
receive the same per share consideration in the event of a merger or
consolidation.
CLASS A PROTECTION
The Amended Restated Certificate contains a "Class A Protection
Provision" which provides that if any person or group (other than the
Company), acquires beneficial ownership of 15% or more of the then
outstanding shares of Common Stock after the time the Amendment has become
effective (the "Effective Time"), and such person or group (a "Significant
Stockholder") does not immediately after such acquisition beneficially own an
equal or greater percentage of all then outstanding shares of Class A Common
Stock, such Significant Stockholder must, within a 90-day period beginning
the day after becoming a Significant Stockholder, commence a public cash
tender offer as described below to acquire additional shares of Class A
Common Stock (a "Class A Protection Transaction"). If a Significant
Stockholder does not undertake the required Class A Protection transaction,
he would lose the right to vote the shares of Common Stock shares acquired
after the Effective Time. For example, if a stockholder owns 4% of the
Common Stock prior to the adoption of the Amendment and thereafter purchases
an additional 16% of the Common Stock without purchasing any additional Class
A Common Stock, such stockholder will not be allowed to vote the 16% of the
Common Stock acquired after the Effective Time unless he commences a tender
offer for an additional 16% of the Class A Common Stock at the prescribed
price. Alternatively, such stockholder could sell that number of shares equal
to 2% of the outstanding Common Stock, thus dropping the percentage of Common
Stock acquired by him after the Effective Time to 14%, leaving him with an
aggregate of 18% of the Common Stock, all of which he could vote.
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The 15% Common Stock ownership threshold which initially triggers a Class
A Protection Transaction may not be waived by the Board of Directors, nor may
the Board of Directors amend this threshold in the Amended Restated
Certificate without stockholder approval, including under the Amended
Restated Certificate, a majority vote of the outstanding Class A Common Stock
voting separately as a class.
In connection with the application of the Class A Protection Provision,
the following shares of the Company's Common Stock shall be excluded from any
determination of the shares of Common Stock owned by a person or group, but
not for the purpose of determining shares outstanding: (i) shares
beneficially owned at the Effective Time; (ii) shares acquired by will, by
laws of descent and distribution, by gift, or by foreclosure of a bona fide
loan; (iii) shares acquired from the Company; (iv) shares acquired by
operation of law (including a merger or consolidation effected for the
purpose of recapitalizing or reincorporating such person but not for the
purpose of acquiring another person); (v) shares acquired in exchange for
shares of Class A Common Stock if the Class A Common Stock were acquired by
the exchanging party directly from the Company as a result of the Amendment
or any subsequent stock split or as a dividend on Common Stock; and (vi)
shares acquired by or from a qualified employee benefit plan of the Company
(collectively the "Excluded Shares").
In each Class A Protection Transaction, the Significant Stockholder must
make a public tender offer to acquire at least that number of additional
shares of Class A Common Stock (the "Additional Shares") determined by
(i) multiplying the percentage of the number of shares of outstanding Common
Stock beneficially owned and acquired after the Effective Time by such
Significant Stockholder by the total number of shares of Class A Common Stock
outstanding on the date such Person or group became a Significant
Stockholder; and (ii) subtracting therefrom the number of shares of Class A
Common Stock beneficially owned by such Significant Stockholder on the date
such Person became a Significant Shareholder which were acquired after the
Effective Time. The Significant Stockholder must acquire all Class A Common
Stock validly tendered or, if the number of shares tendered exceeds the
number determined pursuant to such formula, a pro-rata number of Class A
Common Stock from each tendering holder (based on the number of shares of
Class A Common Stock tendered by each tendering stockholder).
The offer price for any shares of Class A Common Stock required to be
purchased by the Significant Stockholder pursuant to this provision would be
the greatest of: (i) the highest price per share paid by the Significant
Stockholder for any share of Class A Common Stock or Common Stock in the
six-month period ending on the date such person or group became a Significant
Stockholder (or such shorter period after the Effective Time if the date such
person or group became a Significant Stockholder is not more than six months
following the Effective Time); (ii) the highest reported sale price of a
share of Class A Common Stock or Common Stock on The NASDAQ Stock Market
National Market System (or such other securities exchange or quotation system
as is then the principal trading market for such shares) during the
thirty-day period preceding the date such person or group became a
Significant Stockholder; or (iii) the highest reported sale price for a share
of Class A Common Stock or a share of Common Stock on The NASDAQ Stock Market
National Market System (or such other securities exchange or quotation system
constituting the principal trading market for such shares) on the business
day preceding the date the Significant Stockholder commences the required
tender offer.
A Class A Protection Transaction would also be required of any
Significant Stockholder that acquires an additional amount of Common Stock
equal to or greater than the next higher multiple of 5% (e.g., 20%, 25%, 30%,
etc.) of the outstanding Common Stock (excluding Excluded Shares) after the
Effective Time if such Significant Stockholder does not then own an equal or
greater percentage of all then
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outstanding Class A Common Stock that such Significant Stockholder acquired
after the Effective Time. Such Significant Stockholder would be required to
make a public cash tender offer to buy that number of Additional Shares
determined in accordance with the formula set forth above in the second
preceding paragraph at the offer price described in the immediately preceding
paragraph, even if a previous Class A Protection Transaction resulted in
fewer shares of Class A Common Stock being tendered than the Significant
Stockholder was required to offer to purchase in the previous offer.
The requirement to engage in a Class A Protection Transaction will be
satisfied by making the requisite offer and purchasing validly tendered
shares, even if the number of shares tendered is less than the number of
shares the Significant Stockholder was required to offer to purchase. If any
Significant Stockholder fails to make the required tender offer, or to
purchase shares validly tendered (after proration, if any), the voting rights
of all Common Stock owned by such Significant Stockholder and acquired after
the Effective Time will be automatically suspended until consummation of an
offer as required by the terms of the Class A Protection feature or until
divestiture of the excess Common Stock that triggered the tender offer
requirement. To the extent that the voting power of any Common Stock is so
suspended, such shares will not be included in the determination of aggregate
voting shares for any purpose.
Neither the Class A Protection Transaction requirement nor the related
possibility of suspension of voting rights applies to any increase in
percentage ownership of Common Stock resulting solely from a change in the
total number of Common Stock outstanding. All calculations with respect to
percentage ownership of outstanding shares of either class of Common Stock
shall be based upon the number of outstanding shares reflected in either the
records of or a certificate from the Company's stock transfer agent or
reported in the last to be filed of the Company's Annual Report on Form 10-K,
Quarterly Report on Form 10-Q, Current Report on Form 8-K or definitive proxy
statement.
Since the definition of Significant Stockholder is based on the
beneficial ownership percentage of Common Stock acquired after the Effective
Time of the Recapitalization Amendment, a person or group who is a
stockholder of the Company at the Effective Time will not become a
Significant Stockholder unless such person or group acquires an additional
15% of the then outstanding Common Stock, regardless of the number of shares
of Existing Common Stock owned prior to the Effective Time. For purposes of
the Class A Protection feature, the terms "beneficial ownership" and "group"
generally have the same meanings as used in Regulation 13D promulgated under
the Securities Exchange Act of 1934 (the "Exchange Act"), subject to certain
exceptions set forth therein.
The Class A Protection provision does not prevent any person or group
from acquiring a significant or controlling interest in the Company, provided
such person or group acquires a proportionate percentage of the Class A
Common Stock, undertakes a Class A Protection Transaction or incurs the
suspension of the voting rights of the Common Stock as provided by the Class
A Protection feature. If a Class A Protection Transaction is required, the
purchase price to be paid in such offer may be higher than the price at which
a Significant Stockholder might otherwise be able to acquire an identical
number of Class A Common Stock. Such requirement could make an acquisition of
a significant or controlling interest in the Company more expensive and, if
the Class A Protection Transaction is required, more time consuming, than if
such requirement did not exist. Consequently, a person or group might be
deterred from acquiring a significant or controlling interest in the Company
as a result of such requirement. However, by restricting the ability of an
acquirer to acquire a significant interest in the Common Stock by paying a
"control premium" for such shares without acquiring, or paying a similar
premium for, Class A Common Stock, the Class A Protection feature is designed
to help reduce or eliminate any discount on either of these classes of Common
Stocks.
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ADDITIONAL VOTING RIGHTS OF CLASS A COMMON STOCK
Neither the Common Stock nor the Class A Common Stock will be convertible
into another class of common stock or any other security of the Company.
However, the holders of outstanding Class A Common Stock will be entitled to
one vote per share of Class A Common Stock on all matters presented to the
stockholders of the Company automatically (i) at any time when the number of
outstanding shares of Common Stock falls below 10% of the aggregate number of
outstanding Common Stock and Class A Common Stock; and (ii) upon resolution
of the Board of Directors if, as a result of the existence of the Class A
Common Stock, either the Common Stock or Class A Common Stock or both, are
excluded from trading on The NASDAQ Stock Market National Market System and
other comparable quotation systems then in use, and are excluded from trading
by the New York Stock Exchange, American Stock Exchange and all other
principal national securities exchanges then in use. Upon any such change,
the voting interests of the holders of Common Stock would be diluted. In
addition, to the extent that the market price of the Common Stock is higher
or lower than the market price of the Class A Common Stock immediately prior
to such change, the market price of the shares held by particular holders may
be adversely affected by the change.
PREEMPTIVE RIGHTS
None of the Common Stock or the Class A Common Stock will carry any
preemptive rights enabling a holder to subscribe for or receive shares of the
Company of any class or any other securities convertible into any class of
the Company's shares.
CERTAIN PROVISIONS OF THE AMENDED RESTATED CERTIFICATE AND BY-LAWS; DELAWARE
ANTI-TAKEOVER PROVISIONS
The Amended Restated Certificate and By-laws of the Company and the DGCL
contain certain provisions that may enhance the likelihood of continuity and
stability in the composition of the Board of Directors and may discourage a
future unsolicited takeover of the Company. These provisions could have the
effect of discouraging certain attempts to acquire the Company or remove
incumbent management, including incumbent members of the Board of Directors,
even if some or a majority of the Company's stockholders deemed such an
attempt to be in their best interests.
Article Ninth of the Company's Amended Restated Certificate requires,
subject to certain exceptions, the affirmative vote of the holders of at
least 80% of all outstanding shares of capital stock of the Company entitled
to vote on all matters that may come before a meeting of stockholders in
order to (i) effect a merger or consolidation of the Company or any
subsidiary with or into another corporation or (ii) authorize the sale,
lease, exchange or other disposition by the Company or any subsidiary of all
or a substantial part of the assets of the Company or any subsidiary to any
corporation, person or entity or (iii) authorize the Company or its
subsidiary to issue or transfer more than 10% of the Company's outstanding
voting securities or any securities of any subsidiary to any other
corporation, person or entity in exchange for securities, cash or other
property, if, in any of the above cases, such other corporation, person or
entity including its affiliates and associated persons, is the beneficial
owners, directly or indirectly of 5% or more of the outstanding shares of
capital stock of the Company entitled to vote on all matters that may come
before such meeting of stockholders (an "Interested Party"). The requirement
for approval by an 80% vote is not applicable to any of the above referenced
transactions if (i) the Board of Directors by resolution has approved a
memorandum of understanding with the other party substantially consistent
with such transaction prior to the time such party became a holder of more
than 5% of the capital stock of the
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Company or (ii) the Company or any subsidiary is at the time of the
consummation of such transaction is the beneficial owner of (x) a majority,
by vote, of the outstanding shares of all classes of capital stock entitled
to vote in elections for directors of such other corporation or (y) a
majority by voting interest in the other entity when the transaction is
consummated. Unless the Class A Common Stock becomes entitled to the
additional voting rights described above, (i) holders of Class A Common Stock
will not be entitled to vote on the approval of a proposed transaction with
an Interested Party and (ii) a person's ownership of Class A Common Stock
will not be counted in determining whether such person is an "Interested
Party" under Article Ninth.
The Company is a Delaware corporation and consequently is subject to
certain anti-takeover provisions of the DGCL. The business combination
provision contained in Section 203 of the DGCL ("Section 203") defines and
interested stockholder of a corporation as any person that (i) owns, directly
or indirectly, or has the right to acquire, 15% or more of the outstanding
voting stock of the corporation or (ii) is an affiliate or associate of the
corporation and was the owner of 15% or more of the outstanding voting stock
of the corporation at any time within the three-year period immediately prior
to the date on which it is sought to be determined whether such person is an
interested stockholder; and the affiliates and the associates of such person.
Under Section 203, a Delaware corporation may not engage in any business
combination with any interested stockholder for a period of three years (i)
prior to such date the board of directors of the corporation approved either
the business combination or the transaction which resulted in the stockholder
becoming an interested stockholder, (ii) upon consummation of the transaction
which resulted in the stockholder becoming an interested stockholder, the
interested stockholder owned at least 85% of the voting stock of the
corporation outstanding at the time the transaction commenced (excluding, for
determining the number of shares outstanding, (a) shares owned by persons who
are directors and officers and (b) employee stock plans, in certain
instances), or (iii) on or subsequent to such date the business combination
is approved by the board of directors and authorized at an annual or special
meeting of stockholders by at least 66-2/3% of the outstanding voting stock
that is not owned by the interested stockholder. The restrictions imposed by
Section 203 will not apply to a corporation if the corporation, by the action
of its stockholders holding a majority of the outstanding stock, adopts an
amendment to its certificate of incorporation or by-laws expressly electing
not to be governed by Section 203 (such amendment will not be effective until
12 months after adoption and shall not apply to any business combination
between such corporation and any person who became an interested stockholder
of such corporation on or prior to such adoption).
The Company has not elected to opt out of Section 203, and the
restrictions imposed by Section 203 apply to the Company. Section 203 could,
under certain circumstances, make it more difficult for a third party to gain
control of the Company, deny stockholders the receipt of a premium on their
Class A Common Stock and Common Stock and have a depressive effect on the
market price of the Class A Common Stock and Common Stock.
ITEM 2. EXHIBITS.
Exhibit No. Description of Exhibit
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1.1 Restated Certificate of Incorporation of the
Registrant, as amended (incorporated by
reference to Exhibit (3)a. of Registrant's
Form 10-K Annual Report for the fiscal year
ended April 30, 1993, Commission File No. 0-3947).
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1.2 Certificate of Amendment to Article Fourth of the
Restated Certificate of Incorporation of the
Registrant as filed with the Delaware Secretary
of State on September 10, 1997 (filed herewith).
2 By-laws of the Registrant, as amended
(incorporated by reference to Exhibit 3(b).
of Registrant's Form 10-K Annual Report for
the fiscal year ended April 30, 1996,
Commission File No. 0-3947).
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.
Dated: September 10, 1997
HACH COMPANY
By: /s/ Bruce J. Hach
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Bruce J. Hach, President
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EXHIBIT LIST
Exhibit No. Description of Exhibit
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1.1 Restated Certificate of Incorporation of the
Registrant, as amended (incorporated by
reference to Exhibit (3)a. of Registrant's
Form 10-K Annual Report for the fiscal year
ended April 30, 1993, Commission File No. 0-3947).
1.2 Certificate of Amendment to Article Fourth of the
Restated Certificate of Incorporation of the
Registrant as filed with the Delaware Secretary
of State on September 10, 1997 (filed herewith).
2 By-laws of the Registrant, as amended
(incorporated by reference to Exhibit 3(b).
of Registrant's Form 10-K Annual Report for
the fiscal year ended April 30, 1995,
Commission File No. 0-3947).
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EXHIBIT 1.2
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
Hach Company, a corporation organized and existing under and by virtue of
the General Corporation Law of the State of Delaware.
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation, at a meeting
duly held, adopted a resolution proposing and declaring advisable the
following amendment to the Restated Certificate of Incorporation of said
corporation:
RESOLVED, that the Restated Certificate of Incorporation of Hach
Company be amended by changing the Fourth Article thereof so that, as
amended, said Article shall be and read as follows:
"FOURTH: The total number of shares of all classes of capital stock
which the Corporation shall have authority to issue is forty-five million
(45,000,000) shares which shall be divided into two classes as follows:
(a) Twenty Million (20,000,000) shares of Class A Common Stock of
the par value of one dollar ($1.00) per share; and
(b) Twenty Five Million (25,000,000) shares of Common Stock of the
par value of one dollar ($1.00) per share.
The Class A Common Stock and Common Stock are hereinafter
collectively referred to as the "Common Stocks." The designations and
powers, preferences and rights, and the qualifications, limitations and
restrictions thereof, of the above classes of stock shall be as follows:
1. RIGHTS. Except as otherwise required by law or as otherwise
provided in this Article Fourth, each share of Class A Common Stock and each
share of Common Stock shall have identical powers, preferences,
qualifications, limitations and other rights.
2. DIVIDENDS. Subject to all of the rights of any class of stock
authorized after the effective date of this provision of Article Fourth
ranking senior to the Common Stocks as to dividends, dividends may be paid
upon the Class A Common Stock and the Common Stock as and when declared by
the Board of Directors out of funds and other assets legally available for
the payment of dividends. If and when dividends on the Class A Common Stock
and the Common Stock are declared and payable from time to time by the Board
of Directors whether payable in cash, in property or in shares of stock of
the Corporation, the holders of the Class A Common Stock and the holders of
the Common Stock shall be entitled to share equally, on a per share basis, in
such dividends, except that (a) a dividend or distribution in cash or
property on a share of Class A Common Stock may be greater than a dividend or
distribution in cash or property on a share of Common Stock, and (b)
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dividends or other distributions payable on the Common Stocks in shares of
any authorized class or series of capital stock of the Corporation may be
made (i) in shares of Class A Common Stock to the holders of Class A Common
Stock and in shares of Common Stock to the holders of Common Stock, (ii) in
shares of Class A Common Stock to the holders of Class A Common Stock and to
the holders of Common Stock, or (iii) in any other authorized class or series
of capital stock to the holders of both classes of Common Stocks.
3. LIQUIDATION. In the event of any liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, and after
the holders of any class of stock authorized after the effective date of this
provision of Article Fourth ranking senior to the Common Stocks as to
distribution of assets shall have been paid in full the amounts to which such
holders shall be entitled, or an amount sufficient to pay the aggregate
amount to which such holders shall be entitled shall have been set aside for
the benefit of the holders of such stock, the remaining net assets of the
Corporation shall be distributed pro rata to the holders of both classes of
the Common Stocks.
4. MERGER AND CONSOLIDATION. In the event of a merger or consolidation
of the Corporation with or into another entity (whether or not the
Corporation is the surviving entity), the holders of Class A Common Stock
shall be entitled to received the same per share consideration as the per
share consideration, if any, received by any holder of the Common Stock in
such merger or consolidation.
5. VOTING.
(a) Except as otherwise expressly provided with respect to any other
class of stock and except as otherwise may be required by law or this
certificate, the Common Stock shall have the exclusive right to vote for the
election of directors and for all other purposes and each holder of Common
Stock shall be entitled to one vote for each share of Common Stock held.
Except as expressly provided in this certificate and except as otherwise
required by law, the Class A Common Stock shall have no voting rights.
(b) The Class A Common Stock shall be entitled to vote separately
as a class only with respect to (i) proposals to change the par value of the
Class A Common Stock, (ii) other amendments to this certificate that alter or
change the powers, preferences or special rights of the Class A Common Stock
so as to affect them adversely, and (iii) such other matters as may require
class voting under the Delaware General Corporation Law.
(c) The number of authorized shares of Class A Common Stock and
Common Stock may be increased or decreased (but not below the number of
shares then outstanding) by the affirmative vote of the holders of a majority
of the Common Stocks entitled to vote.
6. STOCK SPLITS. The Corporation may not split, divide or combine the
shares of either class of Common Stocks unless, at the same time, the
Corporation splits, divides or combines, as the case may be, the shares of
the other class of Common Stocks in the same proportion and manner.
7. NO PRE-EMPTIVE RIGHTS. No stockholder of this Corporation shall by
reason of his holding shares of any class have any pre-emptive or
preferential right to purchase or subscribe to any shares of any class of
this Corporation, now or hereafter to be authorized, or any notes,
debentures, bonds, or other securities convertible into or carrying options
or warrants to purchase shares of any class, now or hereafter to be
authorized, whether or not the issuance of any such shares, or such notes,
debentures, bonds or other securities, would adversely affect the dividends
or voting rights of such stockholder, other than such rights, if any, as the
Board of Directors, in its discretion from time to time may grant and at such
price as the Board of Directors in its discretion may fix; and the Board of
Directors may issue shares of any class of this Corporation, or any notes,
debentures, bonds, or other securities convertible into or carrying options
or warrants to purchase shares of any
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class, without offering any such shares of any class, either in whole or in
part, to the existing stockholders of any class.
8. ISSUANCES AND REPURCHASES OF COMMON STOCKS.
(a) The Board of Directors shall have the power to issue and sell
all or any part of any class of stock herein or hereafter authorized to such
persons, firms, associations or corporations and for such consideration as
the Board of Directors shall from time to time, it its discretion, determine,
whether or not greater consideration could be received upon the issue or sale
of the same number of shares of another class, and as otherwise permitted by
law.
(b) The Board of Directors shall have the power to purchase any
class of stock herein or hereafter authorized from such persons, firms,
associations or corporations for such consideration as the Board of Directors
shall from time to time, in its discretion, determine, whether or not less
consideration could be paid upon the purchase of the same number of shares of
another class, and as otherwise permitted by law.
(c) For purposes of this subsection 8 of this Article Fourth, the
term "persons" means a natural person, company, government, or any political
subdivision, agency or instrumentality of a government, or other entity.
9. CLASS A PROTECTION PROVISIONS.
(a) If, after the time that this Section 9 of Article Fourth
becomes effective (the "Effective Time"), a Person or group, each as defined
in Section 9(j) of this Article Fourth, acquires beneficial ownership of
shares representing 15% or more of the number of then outstanding shares of
Common Stock and such Person or group (a "Significant Stockholder") does not
then beneficially own an equal or greater percentage of all then outstanding
shares of the Class A Common Stock, all of which Class A Common Stock must
have been acquired by such Significant Stockholder after the Effective Time,
such Significant Stockholder must, within a ninety (90) day period beginning
the day after becoming a Significant Stockholder, make a public cash tender
offer in compliance with all applicable laws and regulations to acquire
additional shares of Class A Common Stock as provided in this Section 9 of
Article Fourth (a "Class A Protection Transaction").
(b) In each Class A Protection Transaction, the Significant
Stockholder must make a public tender offer to acquire that number of
additional shares of Class A Common Stock determined by (i) multiplying the
percentage of the number of outstanding shares of Common Stock beneficially
owned and acquired after the Effective Time by such Significant Stockholder
by the total number of shares of Class A Common Stock outstanding on the date
such Person or group became a Significant Stockholder, and (ii) subtracting
therefrom the number of shares of Class A Common Stock beneficially owned by
such Significant Stockholder on the date such Person or group became a
Significant Stockholder which were acquired after the Effective Time (as
adjusted for stock splits, stock dividends and similar recapitalizations).
The Significant Stockholder must acquire all shares validly tendered; or if
the number of shares of Class A Common Stock tendered to the Significant
Stockholder exceeds the number of shares required to be acquired pursuant to
this Section 9(b), the number of shares of Class A Common Stock acquired from
each tendering holder shall be pro rata based on the percentage that the
number of shares tendered by such stockholder bears to the total number of
shares tendered by all tendering holders.
(c) The offer price for any Class A Common Stock required to be
purchased by the Significant Stockholder pursuant to Section 9 of this
Article Fourth shall be the greatest of (i) the highest
<PAGE>
price per share paid by the Significant Stockholder for any Common Stock or
Class A Common Stock during the six month period ending on the date such
Person or group became a Significant Stockholder (or such shorter period if
the date such Person or group became a Significant Stockholder is not more
than six months following the Effective Time), (ii) the highest reported sale
price of Common Stock or Class A Common Stock on The NASDAQ Stock Market
National Market System ("NASDAQ/NMS") (or such other securities exchange or
quotation system as is then the principal trading market for such shares)
during the 30 day period preceding such Person or group becoming a
Significant Stockholder, and (iii) the highest reported sale price of Common
Stock or Class A Common Stock on the NASDAQ/NMS (or such other securities
exchange or quotation system as is then the principal trading market for such
shares) on the business day preceding the date the Significant Stockholder
makes the tender offer required by this Section 9 of this Article Fourth. For
purposes of Section 9(d) of this Article Fourth, the applicable date for each
calculation required by clauses (i) and (ii) of the preceding sentence shall
be the date on which the Significant Stockholder becomes required to engage
in the Class A Protection Transaction for which such calculation is required.
In the event that the Significant Stockholder has acquired Common Stock or
Class A Common Stock in the six month period ending on the date such Person
or group becomes a Significant Stockholder for consideration other than
cash, the value of such consideration per share of Common Stock shall be as
determined in good faith by the Board of Directors.
(d) A Class A Protection Transaction shall also be required to be
effected by any Significant Stockholder each time that the Significant
Stockholder acquires after the Effective Time beneficial ownership of
additional Common Stock in an amount equal to or greater than the next higher
multiple of 5% in excess of 15% (e.g., 20%, 25%, 30%, etc.) of the number of
outstanding shares of Common Stock if such Significant Stockholder does not
then own an equal or greater percentage of the Class A Common Stock (all of
which Class A Common Stock must have been acquired by such Significant
Stockholder after the Effective Time). Such Significant Stockholder shall be
required to make a public cash tender offer to acquire that number of shares
of Class A Common Stock prescribed by the formula set forth in Section 9(b)
of this Article Fourth, and must acquire all shares validly tendered or a
pro rata portion hereof, as specified in such Section 9(b), at the price
determined pursuant to Section 9(c) of this Article Fourth, even if a
previous Class A Protection Transaction resulted in fewer shares of Class A
Common Stock being tendered than the Significant Stockholder was required to
offer to purchase in the previous offer.
(e) If any Significant Stockholder fails to make an offer required
by this Section 9 of this Article Fourth, or to purchase shares validly
tendered and not withdrawn (after proration, if any), such Significant
Stockholder shall not be entitled to vote any Common Stock beneficially owned
by such Significant Stockholder and acquired by such Significant Stockholder
after the Effective Time unless and until such requirements are complied with
or unless and until all shares of Common Stock causing such offer requirement
to be effective are no longer beneficially owned by such Significant
Stockholder. To the extent that the voting power of any shares of Common
Stock is so suspended, such shares shall not be included in the determination
of aggregate voting shares for any purpose under this Amended Restated
Certificate of Incorporation or the Delaware General Corporation Law. The
requirement to engage in a Class A Protection Transaction is satisfied by the
making of the requisite offer and purchasing validly tendered shares pursuant
to this Section 9 of this Article Fourth, even if the number of shares
tendered is less than the number of shares the Significant Shareholder was
required to offer to purchase.
(f) The Class A Protection Transaction requirement shall not apply
to any increase in percentage beneficial ownership of Common Stock resulting
solely from a change in the aggregate amount of Common Stock outstanding,
provided that any acquisition after such change which resulted in any Person
or group beneficially owning fifteen percent (15%) or more of the number of
outstanding shares of
<PAGE>
Common Stock (or an additional 5% or more of the number of shares of the
Common Stock after the last acquisition which triggered the requirement for a
Class A Protection Transaction) shall be subject to any Class A Protection
Transaction requirement that would be imposed pursuant to this Section 9 of
this Article Fourth.
(g) In connection with Sections 9(a) through 9(d) of this Article
Fourth, the following shares of Common Stock shall be excluded for the
purpose of determining the shares of Common Stock beneficially owned by such
Person or group but not for the purpose of determining shares outstanding:
(i) shares beneficially owned by such Person or group at the
Effective Time;
(ii) shares acquired by will or by the laws of descent and
distribution, or by gift that is made in good faith and not for the purpose
of circumventing this Section 9 of Article Fourth or by foreclosure of a
bona fide loan;
(iii) shares acquired upon issuance or sale by the Corporation,
including shares issued by the Corporation in a merger or consolidation
involving the Corporation or a subsidiary;
(iv) shares acquired by operation of law (including a merger
or consolidation effected for the purpose of recapitalizing such Person or
reincorporating such Person in another jurisdiction but excluding a merger
or consolidation effected by such person for the purpose of acquiring
another Person);
(v) shares acquired in exchange for Class A Common Stock by a
holder of Class A Common Stock (or by a parent, lineal descendant or donee
of such holder of Class A Common Stock who received such Class A Common
Stock from such holder) if the Class A Common Stock so exchanged were
acquired by such holder directly from the Corporation as a result of a
stock split effected by this Amended Restated Certificate of Incorporation
at the Effective Time or any subsequent stock split or as a dividend on
Common Stock; and
(vi) shares acquired by a plan of the Corporation qualified
under Section 401(a) of the Internal Revenue Code of 1986, as amended, or
any successor provision thereto, or acquired by reason of a distribution
from such a plan.
(h) In connection with Sections 9(a) through 9(b) of this Article
Fourth, for purposes of calculating the number of shares of Class A Common Stock
beneficially owned by any Persons or group:
(i) Class A Common Stock acquired by gift shall be deemed to
be beneficially owned by such Person or member of a group if such gift was
made in good faith and not for the purpose of circumventing the operations
of this Section 9 of this Article Fourth; and
(ii) only Class A Common Stock owned of record by such Person
or member of a group or held by others as nominees of such Person or member
of a group and identified as such to the Corporation shall be deemed to be
beneficially owned by such Person or group (provided that Class A Common
Stock with respect to which such Person or member of a group has sole
investment and voting power shall be deemed to be beneficially owned
thereby).
<PAGE>
(i) All calculations with respect to percentage beneficial ownership
of either issued and outstanding Common Stock or Class A Common Stock will be
based upon the numbers of issued and outstanding shares reflected in either the
records of or a certification from the Corporation's stock transfer agent or
reported by the Corporation on the last to be filed of (i) the Corporation's
most recent Annual Report on Form 10-K, (ii) its most recent Quarterly Report on
Form 10-Q, (iii) its most recent Current Report on Form 8-K, and (iv) its most
recent definitive proxy statement filed with the Securities and Exchange
Commission.
(j) For purposes of this Section 9 of this Article Fourth, the term
"Person" means any individual, partnership, corporation, association, trust, or
other entity (other than the Corporation). Subject to Sections 9(g) and 9(h) of
this Article Fourth, "beneficial ownership" shall be determined pursuant to
Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended
(the "1934 Act"), or any successor regulation and the formation or existence
of a "group" shall be determined pursuant to Rule 13d-5(b) under the 1934 Act
or any successor regulation, subject to the following qualifications:
(i) relationships by blood or marriage between or among any
Persons will not constitute any of such Persons as a member of a group with
such other Person, absent affirmative attributes of concerted action; and
(ii) any Person acting in his official capacity as a director
or officer of the Corporation shall not be deemed to beneficially own
shares where such ownership exists solely by virtue of such Person's status
as a trustee (or similar position) with respect to shares held by plans or
trusts for the general benefit of employees or former employees of the
Corporation, and actions taken or agreed to be taken by a Person in such
Person's official capacity as an officer or director of the Corporation
will not cause such Person to become a member of a group with any other
Person.
10. ADDITIONAL VOTING RIGHTS OF CLASS A COMMON STOCK. Each share of
Class A Common Stock (whether or not then issued) shall be entitled to vote
on all matters presented to the stockholders of the Corporation (i)
automatically at the time the number of outstanding shares of Common Stock is
less than 10% of the aggregate umber of outstanding shares of Common Stock
and Class A Common Stock; or (ii) upon resolution of the Board of Directors,
if as a result of the existence of the Class A Common Stock, either the
Common Stock or Class A Common Stock or both are, or will be, excluded from
quotation on NASDAQ/NMS and other comparable quotation systems then in use
and are also, or will be, excluded from trading on the New York Stock
Exchange, the American Stock Exchange and all other principal national
securities exchanges then in use. The Board of Directors shall have the
power to determine whether the conditions set forth in clauses (i) or (ii)
above have occurred. In making its determination, the Board of Directors may
conclusively rely on information and documentation available to it, including
but not limited to, information or certification from its stock transfer
agent, filings made with the Securities and Exchange Commission, any stock
exchange, the National Association of Securities Dealers, Inc., or any other
national quotation system. The determination of the Board of Directors that
the conditions described in either (i) or (ii) have occurred shall be
conclusive and binding and the acquisition of voting rights by each share of
Class A Common Stock shall remain effective regardless of whether the
conditions described in (i) or (ii) have occurred in fact."
SECOND: That thereafter, pursuant to the By-Laws of said Corporation
and resolution of its Board of Directors, the next annual meeting of the
stockholders of said Corporation was held on
<PAGE>
September 9, 1997, upon notice in accordance with Section 222 of the General
Corporation Law of the State of Delaware at which meeting the necessary
number of shares as required by statute were voted in favor of the amendment.
THIRD: That the aforesaid amendment was duly adopted in accordance with
the applicable provisions of Section 242 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, said Hach Company has caused this certificate to be
signed by Bruce J. Hach, its President, and Robert O. Case, its Secretary,
this 9th day of September, 1997.
HACH COMPANY
By: /s/ Bruce J. Hach
------------------------------------
Bruce J. Hach, President
By: /s/ Robert O. Case
------------------------------------
Robert O. Case, Secretary
