SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (date of earliest event reported) FEBRUARY 5, 1997
ANCHOR RESOLUTION CORP.
(Exact name of Registrant as specified in its charter)
DELAWARE 0-14770 22-2452609
(State or other jurisdiction of (Commission (IRS Employer
incorporation) File Number) ID Number)
ONE ANCHOR PLAZA, 4343 ANCHOR PLAZA PARKWAY, TAMPA, FL 33634-7513
(Address of principal executive offices) (Zip Code)
Registrant's Telephone Number,
including area code: (813) 884-0000
ANCHOR GLASS CONTAINER CORPORATION
(Former name or former address, if changed since last report)
<PAGE>
Item 2. ACQUISITION OR DISPOSITION OF ASSETS.
On February 5, 1997, the Registrant completed the sale of substantially all
of its assets and business in accordance with the terms of the Asset Purchase
Agreement dated as of December 18, 1996 (the "Agreement") with Consumers
Packaging Inc., a corporation organized under the federal laws of Canada
("Consumers"), and Owens-Brockway Glass Container Inc., a corporation organized
under the laws of the State of Delaware ("OI"). Under the terms of the Agreement
which was approved on December 20, 1996 by the U.S. Bankruptcy Court
administering the Registrant's Chapter 11 case, the total purchase price
received by the Registrant, subject to adjustment based upon a post- closing
audit, consisted of (i) $328,832,000 in cash, (ii) 490,898 shares of common
stock ("New Anchor Common Stock") of Anchor Glass Acquisition Corporation (now
known as Anchor Glass Container Corporation), a new Delaware corporation formed
by Consumers to acquire those assets of the Registrant not acquired by OI ("New
Anchor"), and (iii) $46,983,000 face amount (1,879,320 shares) of 10% Series A
Cumulative Convertible Preferred Stock (the "Series A Preferred Stock") of New
Anchor which are convertible into approximately 7,830,500 shares of New Anchor
Common Stock. Such shares of New Anchor Common Stock and Series A Preferred
Stock represent approximately 30% of the fully-diluted equity of New Anchor.
Of the cash proceeds, $108,556,960 was applied to repay in full the
Registrant's secured indebtedness under its Credit Agreement with Foothill
Capital Corporation and Congress Financial Corporation and approximately
$11,067,150 was applied to the prepayment of real estate taxes, certain cure
costs with respect to the Registrant's agreements with Coors Brewing Company
which were assigned to OI and a break-up fee payable to Ball- Foster Glass
Container Co., L.L.C. The balance of the net proceeds of the sale remaining
after application to the costs of the winddown and to other administrative and
priority claims will be distributed to the creditors of the Registrant,
including the holders of approximately $158 million principal amount of the
Registrant's Senior Secured Notes and holders of other secured and unsecured
claims, pursuant to a Plan of Reorganization which is being developed by the
Registrant in conjunction with the Official Committee of Unsecured Creditors of
the Registrant (the "Committee").
The Series A Preferred Stock ranks senior to New Anchor Common Stock and to
all other classes and series of preferred stock of New Anchor (including the
Series B 8% Cumulative Convertible Preferred Stock of New Anchor (the "Series B
Preferred Stock") issued to Consumers as described below). Shares of Series A
Preferred Stock have a liquidation value of $25.00 per share and are convertible
into shares of New Anchor Common Stock at a conversion price of $6.00 per share,
subject to adjustment pursuant to anti-dilution provisions. The terms of the
Series A Preferred Stock provide for cumulative quarterly cash dividends at a
rate of 10% per annum. However, payment of cash dividends is restricted by New
Anchor's loan documents. Shares of Series A Preferred Stock are mandatorily
redeemable by New Anchor not later than January 31, 2009 and are redeemable at
the option of New Anchor at any time and from time to time after February 5,
2000 provided that the trading price for New Anchor Common Stock for a specified
period is greater than $6.00 per share. The holders of the Series A Preferred
Stock have no voting rights except that the holders of the Series A Preferred
Stock will have the right to elect three directors of New Anchor whenever
dividends payable on the shares of the Series A Preferred Stock are in arrears
and unpaid in an aggregate amount equal to or exceeding the amount of dividends
payable thereon for 12 quarterly dividend payments. In addition, during the
period of three years following the closing, the holders of the New Anchor
Common Stock issued to the Registrant will have the right to elect four members
of New Anchor's nine member Board of Directors.
Pursuant to the Agreement, New Anchor assumed three defined benefit pension
plans of the Registrant (the "Pension Plans"). At the closing, New Anchor
contributed $9,056,000 in cash and issued 360,000 shares of Series A Preferred
Stock to the Pension Plans. The Pension Benefit Guaranty Corporation (the
"PBGC") and New Anchor entered into an agreement (the "PBGC-New Anchor
Agreement") pursuant to which the PBGC agreed not to terminate the Pension Plans
by reason of the transactions contemplated by the Agreement and the assumption
of the Pension Plans by New Anchor. Such agreement by the PBGC was a condition
to the obligations of Consumers and OI to consummate the transactions. The
PBGC-New Anchor Agreement also requires New Anchor to cause the Pension Plans to
engage an independent appraiser to value the shares of Series A Preferred Stock
no later than February 28, 1997. If the valuation shows that the shares
contributed to the Pension Plans are worth less than $9,000,000 in the aggregate
(or $25 per share), New Anchor will make an additional contribution to the
Pension Plans, no later than March 31, 1997, in cash or in additional shares of
Series A Preferred Stock, equal to the difference. If New Anchor has to make an
additional contribution to the Pension Plans pursuant to the PBGC-New Anchor
Agreement, and decides to make any such contribution in the form of Series A
Preferred Stock, the percentage ownership of the equity of New Anchor of various
parties as described elsewhere in this Report will be affected.
In addition to the securities issued to the Registrant and the Pension
Plans, at the closing, an affiliate of Consumers was issued (i) 200,000 shares
of New Anchor Common Stock for a purchase price of $5 per share or an aggregate
of $1 million and (ii) 3,360,000 shares of the Series B Preferred Stock, which
shares are convertible into approximately 15,272,727 shares of New Anchor Common
Stock, for an aggregate purchase price of $84 million. The shares of New Anchor
Common Stock and Series B Preferred Stock issued to the affiliate of Consumers
represent approximately 55% of the fully-diluted equity of New Anchor. During
the three year period following the closing, the holder of the shares of New
Anchor Common Stock issued to the affiliate of Consumers will have the right to
elect five members of Anchor's nine member Board of Directors. Bankers Trust
Company, one of New Anchor's bank lenders, was issued warrants to purchase for
nominal consideration up to approximately 1,405,229 shares of New Anchor Common
Stock, which shares represent approximately 5% of the fully-diluted equity of
New Anchor. New Anchor has agreed to issue additional Warrants for the same
number of shares of New Anchor Common Stock in connection with the refinancing
of a bridge loan obtained by New Anchor as part of its financing of the
transaction.
Shares of the Series B Preferred Stock have a liquidation value of $25.00
per share and are convertible into shares of New Anchor Common Stock at a
conversion price of $5.50 per share, subject to adjustment pursuant to
anti-dilution provisions. The terms of the Series B Preferred Stock provide for
cumulative dividends at a rate of 8% per annum payable by issuance of additional
shares of Series B Preferred Stock for the three year period following the
closing.
Copies of the Restated Certificate of Incorporation of New Anchor and the
Certificates of Designations for the Series A Preferred Stock and Series B
Preferred Stock are filed as exhibits to this Report.
In connection with the closing, the parties entered into an amendment to
the Agreement (the "Amendment") pursuant to which the parties agreed to
eliminate from the Purchased Assets (as defined in the Agreement) to be acquired
by Consumers three of the closed plants facilities owned by the Registrant
located at Corsicana, Texas, Huntington Park, California and San Leandro,
California, and to reduce the cash portion of the purchase price otherwise
payable by Consumers by $5.7 million. The Registrant will seek to sell these
three plant facilities as soon as practicable. In addition, the Registrant and
Consumers entered into a Waiver Agreement pursuant to which the Registrant
waived the obligation of Consumers to assume certain real estate leases of the
Registrant in exchange for which the purchase price paid by Consumers was
increased by $595,000 in cash and an additional 3,320 shares of Series A
Preferred Stock and 898 shares of New Anchor Common Stock. Copies of the
Amendment and the Waiver Agreement are filed as exhibits to this Report.
Under the terms of an agreement between Consumers and Vitro, Sociedad
Anonima ("Vitro"), the parent of the Registrant, Vitro was released from its
obligations under certain letters of credit in favor of the Travelers Indemnity
Company and its affiliates including the Aetna Casualty and Surety Company
("Travelers/Aetna"), the insurance company providing insurance to the
Registrant. In consideration therefor, as well as for releases from the
Registrant and the Committee, at the closing Vitro paid $8.4 million in cash to
the Registrant's estate. In addition, in consideration for the assumption of its
policies and obligations thereunder, Travelers/Aetna has agreed to pay to the
Registrant's estate $4 million out of the proceeds of reimbursements on workers'
compensation claims payable to it by New Anchor.
On February 6, 1997, the Registrant changed its corporate name to Anchor
Resolution Corp. and New Anchor changed its corporate name to Anchor Glass
Container Corporation. Copies of the Certificates of Amendment effecting such
changes also are filed as exhibits to this Report.
Item 7. Financial Statements, Pro Forma Financial Information
and Exhibits
(c) Exhibits.
2.1 Amendment to Asset Purchase Agreement, dated as of
February 5, 1997 among the Registrant, Consumers and OI.
2.2 Waiver Agreement dated February 5, 1997, between the
Registrant and Consumers.
3.1 Certificate of Amendment of Certificate of Incorporation of
the Registrant changing its corporate name from Anchor Glass
Container Corporation to Anchor Resolution Corp. filed on
February 6, 1997 with the Secretary of State of the State of
Delaware.
99.1 Restated Certificate of Incorporation of Anchor Glass
Acquisition Corporation.
99.2 Certificate of Designations for Series A Preferred
Stock of Anchor Glass Acquisition Corporation.
99.3 Certificate of Designations for Series B Preferred
Stock of Anchor Glass Acquisition Corporation.
99.4 Certificate of Amendment of Certificate of
Incorporation of Anchor Glass Acquisition Corporation
filed on February 6, 1997 with the Secretary of State of
the State of Delaware.
<PAGE>
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 thereunto duly authorized.
ANCHOR RESOLUTION CORP.
By: /S/ ROBERT D. MCGREW
Name: Robert D. McGrew
Title: Assistant Treasurer
Dated: February 18, 1997
<PAGE>
EXHIBIT INDEX
EXHIBIT DESCRIPTION
2.1 Amendment to Asset Purchase Agreement, dated as of
February 5, 1997 among the Registrant, Consumers and
OI.
2.2 Waiver Agreement dated February 5, 1997, between the
Registrant and Consumers.
3.1 Certificate of Amendment of Certificate of
Incorporation of Anchor Glass Container Corporation
filed on February 6, 1997 with the Secretary of State
of the State of Delaware.
99.1 Restated Certificate of Incorporation of Anchor Glass
Acquisition Corporation.
99.2 Certificate of Designations for Series A Preferred
Stock of Anchor Glass Acquisition Corporation.
99.3 Certificate of Designations for Series B Preferred
Stock of Anchor Glass Acquisition Corporation.
99.4 Certificate of Amendment of Certificate of
Incorporation of Anchor Glass Acquisition Corporation
filed on February 6, 1997 with the Secretary of State
of the State of Delaware.
Exhibit 2.1
AMENDMENT TO
ASSET PURCHASE AGREEMENT
This AMENDMENT is made and entered into as of February 5, 1997, by
and among ANCHOR GLASS CONTAINER CORPORATION, a Delaware corporation ("Anchor"),
CONSUMERS PACKAGING INC., a corporation organized under the federal laws of
Canada ("Consumers"), and OWENS-BROCKWAY GLASS CONTAINER INC., a Delaware
corporation ("OI").
WITNESSETH:
WHEREAS, Anchor has entered into an Asset Purchase Agreement with
Consumers and OI, dated as of December 18, 1996 (the "Asset Purchase Agreement")
with respect to the sale by Anchor to Consumers and OI of substantially all of
the assets of Anchor on the terms and conditions specified in the Asset Purchase
Agreement, which Asset Purchase Agreement has been approved by order of the
United States Bankruptcy Court for the District of Delaware (the "Bankruptcy
Court") which has jurisdiction over the Bankruptcy Case filed by Anchor, as
debtor, pursuant to Chapter 11 of the Bankruptcy Code (Capitalized terms used
herein but not otherwise defined herein shall have the same meanings given them
in the Asset Purchase Agreement); and
WHEREAS, pursuant to Section 2.01(i) of the Asset Purchase Agreement,
Anchor agreed to transfer and assign to Consumers and OI, and Consumers and OI
agreed to purchase from Anchor, all of Anchor's right, title and interest in, to
and under the Purchased Assets including all real property used or owned or held
for use in the Business in each case together with all buildings, fixtures and
improvements erected thereon; and
WHEREAS, pursuant to Section 2.06(b) of the Asset Purchase Agreement,
Anchor agreed to deliver to Consumers and OI, three business days prior to the
Closing Date, a certificate, signed by Anchor's Chief Financial Officer, setting
forth (i) Anchor's good faith estimate of the Estimated Post-Filing Trade
Payables and (ii) Anchor's good faith estimate of the Estimated Final Net
Assets; and
WHEREAS, Anchor has delivered the certificate described above dated
January 24, 1997 and pursuant to Section 2.06 of the Asset Purchase Agreement,
Consumers and OI are obligated to pay to Anchor the Estimated Purchase Price in
the amount of $333,937,000 in cash, of which $205,575,000 is payable by
Consumers; and
WHEREAS, Consumers and Anchor are desirous of amending the Asset
Purchase Agreement to eliminate from the Purchased Assets to be acquired by
Consumers three of the closed plants facilities owned by Anchor and to reduce
the Purchase Price and the Estimated Purchase Price otherwise payable by
Consumers in cash on the Closing Date by $5.7 million:
NOW, THEREFORE, in consideration of the foregoing and for good and
valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the parties hereto hereby agree as follows:
1. PURCHASED ASSETS. Notwithstanding anything to the contrary
contained in the Asset Purchase Agreement, including, without limitation,
Section 2.01(i) thereof, the Purchased Assets shall not include the plant
facilities owned by Anchor described on Schedule 3.11(b) to the Asset Purchase
Agreement as the properties located at Corsicana, Texas (including the
warehouse), Huntington Park, California and San Leandro, California
(collectively, the "Excluded Properties"). Schedule 3.11(b) to the Asset
Purchase Agreement is hereby amended to delete the Excluded Properties therefrom
and the Asset Purchase Agreement is hereby amended such that the terms
"Purchased Assets" and "Real Properties" as used in the Asset Purchase Agreement
shall not include the Excluded Properties and the term "Excluded Assets" as used
therein shall include the Excluded Properties. All other references in the Asset
Purchase Agreement and the Schedules thereto to any of the Excluded Properties
are hereby deleted. Consumers shall have the right to remove any machinery and
equipment (but not building fixtures) and Anchor owned inventory located at any
of the Excluded Properties within the lesser of 60 days following the Closing
Date or the date of sale of any Excluded Property.
2. ASSUMED LIABILITIES. Notwithstanding anything to the contrary
contained in the Asset Purchase Agreement, including, without limitation,
Section 2.03(v) thereof, the Assumed Liabilities shall not include any
liabilities or obligations of Anchor relating to or in connection with the
Excluded Properties (the "Related Liabilities").
3. PURCHASE PRICE. The Purchase Price and the Estimated Purchase Price
for the Purchased Assets are hereby reduced by $5.7 million. To effectuate such
reduction, (i) the amount of $333.6 million appearing in clause (i)(A) of the
first sentence of Section 2.06(a) of the Asset Purchase Agreement is hereby
reduced to $327.9 million and the amount thereof payable by Consumers is hereby
reduced from $208.6 million to $202.9 million and (ii) the amount of $333.6
million appearing in clause (i) of the fourth sentence of Section 2.06(a) of the
Asset Purchase Agreement is hereby reduced to $327.9 million.
4. CLOSING BALANCE SHEET. Notwithstanding anything to the contrary
contained in the Asset Purchase Agreement, including, without limitation,
Sections 2.08 and 2.09 thereof, the Excluded Properties and the Related
Liabilities, at a net value of $6.84 million, shall be excluded from the Closing
Balance Sheet and solely for purposes of calculating any adjustment to the
Purchase Price pursuant to Section 2.09 of the Asset Purchase Agreement, the net
assets shown on the Reference Balance Sheet shall be reduced by the amount of
$6.84 million which is the agreed book value of the Excluded Properties net of
the Related Liabilities. It is the intention of the parties that this paragraph
4 shall preclude any adjustment in the Purchase Price pursuant to Section 2.09
of the Asset Purchase Agreement by reason of the exclusion of the Excluded
Properties net of the Related Liabilities from the Purchased Assets and the
Assumed Liabilities.
5. FUTURE SALES OF EXCLUDED PROPERTIES. Anchor agrees that, in
connection with the sale of any of the Excluded Properties by Anchor, it will
include a covenant restricting any subsequent owner from operating such Excluded
Property for the manufacture of glass containers.
6. ASSIGNMENT TO NEW ANCHOR. Prior to the Closing, Consumers shall
have assigned to New Anchor all of its rights under this Amendment and shall
have caused New Anchor to assume all of the liabilities and obligations of
Consumers hereunder. Such assignment and assumption shall not relieve Consumers
of its liabilities and obligations under this Amendment.
7. GOVERNING LAW, ETC. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York, without regard
to the conflicts of law rules of such State. The provisions of Sections 13.11
(Consent to Jurisdiction) and 13.12 (Waiver of Jury Trial) of the Asset Purchase
Agreement shall be applicable to this Amendment as though fully set forth
herein.
<PAGE>
IN WITNESS WHEREOF, each party has caused this Amendment to be
executed by its duly authorized representative as of the date first written
above.
ANCHOR GLASS CONTAINER CORPORATION
By:/s/ Mark A. Kirk
Name: Mark A. Kirk
Title: Senior Vice President
CONSUMERS PACKAGING INC.
By: /s/ John J. Ghaznavi
Name: John J. Ghaznavi
Title: Chairman and Chief Executive
Officer
OWENS-BROCKWAY GLASS CONTAINER INC.
By:/s/ James W. Baehren
Name: James W. Baehren
Title: Vice President
Exhibit 2.2
WAIVER AGREEMENT
This WAIVER AGREEMENT is made and entered into as of February 5,
1997, by and between ANCHOR GLASS CONTAINER CORPORATION, a Delaware corporation
("Anchor") and CONSUMERS PACKAGING INC., a corporation organized under the
federal laws of Canada ("Consumers").
WITNESSETH:
WHEREAS, Anchor has entered into an Asset Purchase Agreement with
Consumers and Owens-Brockway Glass Container Inc., a Delaware corporation
("OI"), dated as of December 18, 1996 (the "Asset Purchase Agreement") with
respect to the sale by Anchor to Consumers and OI of substantially all of the
assets of Anchor on the terms and conditions specified in the Asset Purchase
Agreement, which Asset Purchase Agreement has been approved by order of the
United States Bankruptcy court for the District of Delaware (the "Bankruptcy
Court") which has jurisdiction over the Bankruptcy Case filed by Anchor, as
debtor, pursuant to Chapter 11 of the Bankruptcy Code (Capitalized terms used
herein but not otherwise defined herein shall have the same meanings given them
in the Asset Purchase Agreement);
WHEREAS, pursuant to Section 2.01(i) of the Asset Purchase Agreement
Anchor agreed to transfer and assign to Consumers and OI, and Consumers and OI
agreed to purchase from Anchor, among other things, all of Anchor's right, title
and interest in, to and under all leases of real property used or owned or held
for use in the Business;
WHEREAS, pursuant to Section 2.03(ii) Consumers and OI agreed to
assume all liabilities and obligations of Anchor arising from and after the
Closing Date under all Included Contracts (such definition including all rights
under leases relating to the Purchased Assets or the Business);
WHEREAS, notwithstanding the provisions of Sections 2.01(i) and
2.03(ii) of the Asset Purchase Agreement, Consumers desires not to purchase from
Anchor its rights under the six leases of real property described on Schedule A
annexed hereto (the "Leases") and Anchor is willing to waive the obligations of
Consumers to purchase the Leases and assume Anchor's liabilities and obligations
thereunder in exchange for the payment of cash and issuance of securities of New
Anchor as described herein;
NOW, THEREFORE, in consideration of the foregoing and for good and
valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, Anchor and Consumers hereby agree as follows:
1. WAIVER. Notwithstanding anything to the contrary contained in the
Asset Purchase Agreement, Anchor hereby waives, and releases Consumer from, the
obligation to purchase Anchor's right, title and interest in, to and under the
Leases and assume Anchor's liabilities and obligations under the Leases. In
furtherance of the foregoing, as between Anchor and Consumers, the Purchased
Assets to be acquired by Consumers pursuant to the Asset Purchase Agreement
shall not include Anchor's right, title and interest in, to and under the Leases
and (ii) the Assumed Liabilities to be assumed by Consumers pursuant to the
Asset Purchase Agreement shall not include Anchor's liabilities and obligations
under the Leases.
2. CONSIDERATION. (a) In consideration of the foregoing waiver by
Anchor, Consumers hereby agrees to pay to Anchor at the Closing under the Asset
Purchase Agreement, in addition to the Purchase Price provided for therein, (i)
the amount of $595,000 in cash plus (ii) an additional 3,320 shares of Series A
10% Cumulative Convertible Preferred Stock of New Anchor and 898 shares of Class
A Common Stock of New Anchor (collectively, the "Additional Shares"). The
Additional Shares shall have rights, privileges and preferences identical to the
Shares to be issued to Anchor pursuant to the Asset Purchase Agreement.
(b) The parties hereto acknowledge that the consideration provided for
in paragraph 2(a) hereof was predicated on the assumption that the allowed
claims of the lessors under the Leases pursuant to Section 502(b)(6) of the
Bankruptcy Code would aggregate $1,083,385 (the "Base Amount"). If the actual
aggregate allowed claims of such lessors under the Leases (the "Actual Claims")
exceed the Base Amount for any reason, Consumers agrees to pay to Anchor,
promptly upon the determination of such allowed claims by order of the
Bankruptcy Court, additional consideration for the foregoing waiver by Anchor
equal to 64.6% of the amount by which the Actual Claims exceed the Base Amount
(the "Additional Consideration"). Such Additional Consideration, if any, shall
be paid (i) 85% in cash, (ii) 11.9% by issuance of additional shares of Series A
10% Cumulative Convertible Preferred Stock of New Anchor valued for such purpose
at $25 per share and (iii) 3.1% by issuance of additional shares of Common Stock
of New Anchor valued for such purpose at $24.50 per share. Any shares of New
Anchor issued pursuant to clauses (ii) and (iii) of the preceding sentence shall
be deemed to have been issued and shall be dated as of the Closing Date under
the Asset Purchase Agreement.
3. ASSIGNMENT TO NEW ANCHOR. Prior to the Closing, Consumers shall
have assigned to New Anchor all of its rights under this Waiver Agreement and
shall have caused New Anchor to assume all of the liabilities and obligations of
Consumers hereunder. Such assignment and assumption shall not relieve Consumers
of its liabilities and obligations under this Waiver Agreement.
4. GOVERNING LAW, ETC. This Waiver Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, without regard
to the conflicts of law rules of such State. The provisions of Sections 13.11
(Consent to Jurisdiction) and 13.12 (Waiver of Jury Trial) of the Asset Purchase
Agreement shall be applicable to this Waiver Agreement as though fully set forth
herein.
IN WITNESS WHEREOF, each party has caused this Waiver Agreement to be
executed by its duly authorized representative as of the date first written
above.
ANCHOR GLASS CONTAINER CORPORATION
By: /s/ Carl H. Young III
Name: Carl H. Young III
Title: Vice President
CONSUMERS PACKAGING INC.
By: /s/ John J. Ghaznavi
Name: John J. Ghaznavi
Title: Chairman and Chief Executive
Officer
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE A
<S> <C> <C> <C> <C> <C> <C>
Name Address City/State Zip Acres/Sq Rent Term
.Ft. Per
mth
Portland 4440 E. Vernon, CA 90023 220,000 $ 11/31/01
Whse 26th St. 72,000
Wes-Flo, 5707 N. Tampa, FL 33682 varies $ mth
Inc. 54th St. 2,333 to
mth
St. Louis 410 Manchester, 63011 1830
Sales Sovereign MO
Office Court Ste.
8
Napa 1804 Soscol Napa, CA 94559 3029
Sales Ave., Ste
Office 204
Pleasanton 5994 W. Las Pleasanton, 94588 1940
Sales Positas, CA
Office Ste 115
La Palma 5 La Palma, 90623 2305
Sales Centerpointe CA
Office Dr., Ste
170
</TABLE>
Exhibit 3.1
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
ANCHOR GLASS CONTAINER CORPORATION
---------------------------
Under Section 242 of the
Delaware Corporation Law
---------------------------
Anchor Glass Container Corporation, 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 the Corporation adopted a resolution
by unanimous written consent proposing and declaring advisable the following
amendment to the Certificate of Incorporation of Anchor Glass Container
Corporation:
Article "FIRST" is amended so that said Article shall be and read as
follows:
"FIRST: The name of the corporation is Anchor Resolution Corp. (hereinafter
referred to as the "Corporation")."
SECOND: That said amendment has been consented to and authorized by the
holder of all of the issued and outstanding stock entitled to vote, by a written
consent given in accordance with the provisions of Section 228 of the General
Corporation Law of the State of Delaware and filed with the Corporation.
THIRD: That this amendment has been duly adopted in accordance with the
applicable provisions of Section 242 and 228 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, said Anchor Glass Container Corporation has caused this
certificate to be signed by its President, and attested by its Secretary, this
31st day of January, 1997.
ATTEST: ANCHOR GLASS CONTAINER CORPORATION
/s/ Eugene K. Pool /s/ Carl H. Young III
Name: Eugene K. Pool Name: Carl H. Young III
Title: Assistant Secretary Title: Senior Vice President, General
Counsel & Secretary
Exhibit 99.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ANCHOR GLASS ACQUISITION CORPORATION
The undersigned, the Chairman of the Corporation, hereby certifies that the
Certificate of Incorporation of Anchor Glass Acquisition Corporation (the
"Corporation"), originally filed in Delaware on January 3, 1997, is hereby
amended and restated in its entirety to read as follows:
ARTICLE I
NAME
The name of the corporation is Anchor Glass Acquisition Corporation (the
"Corporation").
ARTICLE II
ADDRESS OF REGISTERED OFFICE;
NAME OF REGISTERED AGENT
The address of the registered office of the Corporation in the State of
Delaware is 1209 Orange Street, City of Wilmington, Delaware 19801, County of
New Castle. The name of the registered agent at that address is The Corporation
Trust Company.
ARTICLE III
PURPOSE AND POWERS
The purpose of the Corporation is to engage in any lawful act or activity
for which a corporation may now or hereafter be organized under the Delaware
General Corporation Law. It shall have all powers that may now or hereafter be
lawful for a corporation to exercise under the Delaware General Corporation Law.
ARTICLE IV
CAPITAL STOCK
SECTION 4.1. TOTAL NUMBER OF SHARES OF STOCK. The total number of shares of
stock of all classes that the Corporation shall have authority to issue is
Seventy Million (70,000,000). The authorized capital stock is divided into
Twenty Million (20,000,000) shares of Preferred Stock, $.01 par value per share
(the "Preferred Stock"), and Fifty Million (50,000,000) shares of Common Stock,
$0.10 par value per share (the "Common Stock").
SECTION 4.2 PREFERRED STOCK.
(a) The shares of Preferred Stock of the Corporation may be issued from
time to time in one or more classes or series thereof, the shares of each class
or series thereof to have such voting powers, full or limited, or no voting
powers, and such designations, preferences and relative, participating, optional
or other special rights, and qualifications, limitations or restrictions
thereof, as are stated and expressed herein or in the resolution or resolutions
providing for the issuance of such class or series, adopted by the Board of
Directors as hereinafter provided. All shares of the same class and series of
Preferred Stock will be identical, but shares of different classes or series of
Preferred Stock need not be identical or rank equally except as provided by law
or herein.
(b) Authority is hereby expressly granted to the Board of Directors of the
Corporation, subject to the provisions of this Article IV and to the limitations
prescribed by the Delaware General Corporation Law, to authorize the issuance of
one or more classes, or series thereof, of Preferred Stock and with respect to
each such class or series to fix by the resolution or resolutions providing for
the issuance of such class or series, the voting powers, full or limited, if
any, of the shares of such class or series and the designations, preferences and
relative, participating, optional or other special rights, and qualifications,
limitations or restrictions thereof. The authority of the Board of Directors
with respect to each class or series thereof shall include, but not be limited
to, the determination or fixing of the following:
(i) the maximum number of shares to constitute such class or
series, which may subsequently be increased or decreased (but not below the
number of shares of that class or series then outstanding) by resolution of the
Board of Directors, the distinctive designation thereof and the stated value
thereof if different than the par value thereof;
(ii) the dividend rate of such class or series, the conditions
and dates upon which such dividends shall be payable, the relation which such
dividends shall bear to the dividends payable on any other class or classes of
stock or any other series of any class of stock of the Corporation, and whether
such dividends shall be cumulative or noncumulative;
(iii) whether the shares of such class or series shall be
subject to redemption by the Corporation and, if made subject to such
redemption, the times, prices and other terms and conditions of such redemption;
(iv) the terms and amount of any sinking fund established for
the purchase or redemption of the shares of such class or series;
(v) whether or not the shares of such class or series shall be
convertible into or exchangeable for shares of any other class or classes of any
stock or any other series of any class of stock of the Corporation, and, if
provision is made for conversion or exchange, the times, prices, rates,
adjustments, and other terms and conditions of such conversion or exchange;
(vi) the extent, if any, to which the holders of shares of
such class or series shall be entitled to vote with respect to the election of
directors or otherwise;
(vii) the restrictions, if any, on the issuance or reissuance
of any additional shares of Preferred Stock;
(viii) whether or not the issuance of any additional shares of
any such class or series or of any other class or series in addition to such
class or series shall be subject to restrictions in addition to the
restrictions, if any, on the issuance of additional shares imposed in the
resolution or resolutions fixing the terms of any outstanding class or series of
Preferred Stock theretofore issued pursuant to this Section 4.2 and, if subject
to additional restrictions, the extent of such additional restrictions; and
(ix) the rights of the holders of the shares of such class or
series upon the dissolution, liquidation or winding up of, or upon the
distribution of assets of, the Corporation.
For purposes of this Section 4.2, the voluntary sale, conveyance, lease,
exchange or transfer of all or substantially all the property or assets of the
Corporation or a consolidation, merger or other business combination of the
Corporation with one or more other corporations or entities (whether or not the
Corporation is the corporation surviving such consolidation or merger) shall not
be deemed to be a liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary.
The Board of Directors of the Corporation is further expressly vested with the
authority to make the voting powers, designations, preferences, rights and
qualifications, limitations or restrictions of any class or series of Preferred
Stock dependent upon facts ascertainable outside this Certificate of
Incorporation or of any amendment hereto, or outside the resolution or
resolutions providing for the issuance of such stock adopted by the Board of
Directors, provided that the manner in which such facts shall operate upon the
voting powers, designations, preferences, rights and qualifications, limitations
or restrictions of such class or series of Preferred Stock is clearly and
expressly set forth in the resolution or resolutions providing for the issuance
of such stock adopted by the Board of Directors of the Corporation.
Any specification for a class or series of Preferred Stock of designations,
preferences and relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, pursuant to this Section
4.2 shall be defined in this Certificate of Incorporation as a "Preferred Stock
Designation."
(c) Before any dividends shall be declared or paid or any distribution
ordered or made upon the Common Stock (other than a dividend payable in Common
Stock), the Corporation shall comply with the dividend and sinking fund
provisions, if any, of any resolution or resolutions providing for the issuance
of any class or series of Preferred Stock, any shares of which shall at the time
be outstanding. Subject to the foregoing sentence, the holders of Common Stock
shall be entitled, to the exclusion of the holders of Preferred Stock of any and
all classes and series, to receive such dividends as from time to time may be
declared by the Board of Directors of the Corporation.
SECTION 4.3 COMMON STOCK.
(a) During the Initial Period, the Corporation shall have three (3)
classes of Common Stock, 19,000,000 shares of which are hereby designated
as Class A Common Stock ("Class A Common Stock"), 28,000,000 shares of which are
hereby designated as Class B Common Stock ("Class B Common Stock"), and
3,000,000 shares of which are hereby designated as Class C Common Stock ("Class
C Common Stock"). The rights of the Class A Common Stock, the Class B Common
Stock and the Class C Common Stock shall be identical in all respects, except
that during the Initial Period (as defined in Section 7.2 hereof), (i) the
Holders of Class A Common Stock shall have the right to elect four (4) directors
and the Holders of Class B Common Stock shall have the right to elect five (5)
directors, as more fully set forth in Section 7.2 of this Certificate of
Incorporation, and (ii) the Class C Common Stock shall have no voting rights. At
the end of the Initial Period, (a) (i) the Class A Common Stock (whether or not
outstanding), (ii) the Class B Common Stock (whether or not outstanding) and
(iii) the Class C Common Stock (whether or not outstanding) shall automatically
be converted into shares of Common Stock, without any designation as to class,
(b) Common Stock (without designation) shall be the only Common Stock
outstanding, (c) the number of authorized shares of Common Stock shall be
50,000,000, (d) such Common Stock shall have full voting rights (including for
the election of all directors, other than directors elected pursuant to Section
7.3 hereof) and (e) no shares of Class A Common Stock, Class B Common Stock or
Class C Common Stock shall thereafter be issued; all shares of Common Stock
issued after the Initial Period shall be issued without a class designation.
(b) Holders of Class A Common Stock and Class B Common Stock voting
together as a single class on all matters except the election and removal of
directors during the Initial Period, as set forth in Section 7.2 hereof, shall
be entitled to one vote for each share of Common Stock held by them on each
matter on which they are entitled to vote. Except as set forth in Section 7.2
hereof, any action required to be taken at an annual or special meeting of the
holders of Common Stock may be taken without a meeting, without prior notice and
without a vote, only if a consent in writing setting forth the action so taken,
shall be signed by all of the holders of the outstanding Common Stock of the
Corporation. No action may be taken by the holders of Common Stock by less than
unanimous written consent, and any action so taken shall be invalid.
(c) The holders of Common Stock shall be entitled to participate share
for share in any cash dividend which may be declared from time to time on the
Common Stock of the Corporation by the Board of Directors and to receive pro
rata the net assets of the Corporation on dissolution, liquidation or winding up
of the Corporation, in both cases subject to all amounts which the holders of
Preferred Stock are entitled to receive or have set aside.
ARTICLE V
INCORPORATOR
The name and the mailing address of the incorporator is as follows:
NAME MAILING ADDRESS
Eileen R. Sisca c/o Eckert Seamans Cherin & Mellott
600 Grant St., 42nd Floor
Pittsburgh, PA 15219
ARTICLE VI
TERM OF EXISTENCE PERPETUAL
The Corporation is to have perpetual existence.
ARTICLE VII
BOARD OF DIRECTORS
SECTION 7.1 POWERS OF THE BOARD OF DIRECTORS. The business and affairs of
the Corporation shall be managed by or under the direction of its Board of
Directors. In furtherance, and not in limitation, of the powers conferred by the
laws of the State of Delaware, the Board of Directors is expressly authorized
to:
(a) adopt, amend, alter, change or repeal the Bylaws of the Corporation,
by the affirmative vote of a majority of the whole Board of Directors;
PROVIDED, HOWEVER, that no Bylaws hereafter adopted shall invalidate any prior
act of the directors that would have been valid if such new Bylaws had not been
adopted;
(b) determine the rights, powers, duties, rules and procedures that
affect the power of the Board of Directors to manage and direct the
business and affairs of the Corporation, including the power to designate and
empower committees of the Board of Directors, to elect, appoint and empower the
officers and other agents of the Corporation, and, subject to the requirement of
Section 7.4, to determine the time and place of, and the notice requirements
for, Board meetings, as well as quorum and voting requirements for, and the
manner of taking, Board action; and
(c) exercise all such powers and do all such acts as may be exercised
or done by the Corporation, subject to the provisions of the laws of the State
of Delaware, this Certificate of Incorporation, and the Bylaws of the
Corporation.
SECTION 7.2 INITIAL DIRECTORS.
(a) For the period beginning on the date of the closing under that certain
Asset Purchase Agreement dated December 18, 1996, by and among Anchor Glass
Container Corporation, Consumers Packaging Inc., and Owens-Brockway Glass
Container Inc. (the "Closing Date") and ending on the third (3rd) anniversary of
the Closing Date (the "Initial Period"), the number of directors of the
Corporation ("Initial Directors") shall be nine (9); provided, however, that any
vacancies occurring on the Board for any reason, including without limitation,
failure of the Class A Common Stock or the Class B Common Stock to elect all of
the directors which each such class is entitled to elect, or failure of the
Class A Common Stock or the Class B Common Stock to fill any vacancy, however
occurring, shall not affect the validity of any action taken by the Board of
Directors. During the Initial Period, the following shall apply:
(i) The holder or holders of the Class A Common Stock,
including Class A Common Stock received upon the
conversion of Preferred Stock held by any Class A
Stockholder (the "Class A Shares"), by the
affirmative vote of a majority of Class A Shares
present at a duly organized meeting of the
stockholders, shall have the right (i) to elect four
(4) Initial Directors ("Class A Directors"), (ii) to
remove any Class A Director from office, with or
without cause, and (iii) to fill any vacancy on the
Board of Directors occurring with respect to a Class
A Director; provided, however, that notwithstanding
the foregoing, all nominees for Class A Directors,
including persons nominated to fill vacancies, must
be approved by the affirmative vote of a majority of
the Class B Stockholders or by the Chairman of the
Corporation, such approval not to be unreasonably
withheld.
(ii) The holder or holders of the Class B Common Stock,
including Class B Common Stock received upon the
conversion of Preferred Stock held by Class B
Stockholders ("Class B Shares"), by the affirmative
vote of a majority of the Class B Shares present at a
duly organized meeting of the stockholders, shall
have the right (i) to elect five (5) Initial
Directors ("Class B Directors"), (ii) to remove any
Class B Director from office, with or without cause,
and (iii) to fill any vacancy on the Board of
Directors occurring with respect to a Class B
Director.
(iii) No Class A Director may be removed from office during
the Initial Period, except by the affirmative vote of
a majority of Class A Shares present at a duly
organized meeting of the stockholders. No Class B
Director may be removed from office during the
Initial Period, except by the affirmative vote of a
majority of Class B Shares present at a duly
organized meeting of the stockholders.
(iv) Any action taken pursuant to this Section 7.2(a), may
be taken without a meeting, without prior notice and
without a vote, only if a consent in writing setting
forth the action so taken shall be signed by all of
the holders of the Class A Shares and/or the Class B
Shares, as applicable. No action may be taken by the
holders of the Class A Shares and/or the Class B
Shares, as applicable, by less than unanimous written
consent, and any action so taken shall be invalid.
(b) Prior to the commencement of the Initial Period, and from and after the
expiration of the Initial Period, the number of directors and the manner of
their election, removal and the filling of vacancies shall be in accordance with
the Bylaws of the Corporation, subject to Section 7.3 hereof, and to the
requirements of this Section 7.2(b). Upon the expiration of the Initial Period,
the Board of Directors shall determine the number of directors which shall
thereafter constitute the Board of Directors. Such number of directors shall
then be divided into three classes ("Classes"), which shall be as nearly equal
in number as possible. The term of office of the first Class of directors shall
expire at the first annual meeting after their election; the term of office of
the second Class of directors shall expire at the second annual meeting after
their election; and the term of office of the third Class of directors shall
expire at the third annual meeting after their election. At each annual meeting,
the number of directors equal to the Class whose term has expired at the time of
such meeting shall be elected to hold office until the third succeeding annual
meeting.
SECTION 7.3 ELECTION OF DIRECTORS BY HOLDERS OF PREFERRED STOCK. Whenever
the holders of any one or more classes of Preferred Stock or series thereof
issued by the Corporation shall have the right, voting separately by class or
series, to elect directors at an annual or special meeting of stockholders, the
number of such directors, and the election, term of office, filling of vacancies
and other features of each such directorship, shall be governed by the terms of
this Certificate of Incorporation and any Preferred Stock Designation applicable
thereto.
SECTION 7.4 MEETINGS OF DIRECTORS. During the Initial Period, a meeting of
the Board of Directors shall be held at least once each calendar quarter.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 RIGHT TO INDEMNIFICATION. Each person (including the estate of
such person, and any executor or similar representative of such estate) who was
or is made a party or is threatened to be made a party to or is otherwise
involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "proceeding"), by reason of the
fact:
(a) that he or she is or was a director or officer of the Corporation, or
(b) that he or she is or was serving at the request of the Corporation as
a director, trustee, officer, employee or agent of another corporation or
of a partnership, joint venture, trust or other enterprise, including service
with respect to an employee benefit plan (collectively, "another enterprise" or
"other enterprise"), whether either in case (a) or in case (b) the basis of such
proceeding is alleged action or inaction (x) in an official capacity as a
director or officer of the Corporation, or as a director, trustee, officer,
employee or agent of such other enterprise, or (y) in any other capacity while
so serving as a director, trustee, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest extent not
prohibited by Section 145 of the Delaware General Corporation Law (or any
successor provision or provisions) as the same exists or may hereafter be
amended (but, in the case of any such amendment, with respect to alleged action
or inaction occurring prior to such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification rights than
permitted prior thereto), against any expense, liability or loss (including
without limitation attorneys' fees and expenses, judgments, fines, ERISA excise
taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such person in connection therewith. The persons indemnified by this
Article VIII are hereinafter referred to as "indemnitees." Such indemnification
as to such alleged action or inaction shall continue as to an indemnitee who has
after such alleged action or inaction ceased to be a director or officer of the
Corporation, or director, officer, employee or agent of such other enterprise,
and shall inure to the benefit of the indemnitee's heirs, executors and
administrators. Notwithstanding the foregoing, except as may be provided in
Section 8.4 hereof or the Bylaws of the Corporation or by the Board of
Directors, the Corporation shall not indemnify any such indemnitee in connection
with a proceeding (or portion thereof) initiated by such indemnitee (but this
prohibition shall not apply to a counterclaim, cross- claim or third-party claim
brought by the indemnitee in any proceeding) unless such proceeding (or portion
thereof) was authorized by the Board of Directors. The right to indemnification
conferred in this Article VIII: (1) shall be a contract right; (ii) shall not be
changed by any amendment of this Certificate of Incorporation to adversely
affect any indemnitee with respect to any alleged action or inaction occurring
prior to such amendment; and (iii) shall, subject to any requirements imposed by
law and the Bylaws of the Corporation, include the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition, provided, however, that, if the General Corporation Law
of the State of Delaware so requires, the payment of such expenses incurred by a
director or officer in his or her capacity as a director or officer (and not in
any other capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of a proceeding, shall be made
only upon delivery to the Corporation of an undertaking, by or on behalf of such
director or officer, to repay all amounts so advanced if it shall ultimately be
determined by a final judicial decision from which there is no further right to
appeal, that such director or officer is not entitled to be indemnified under
this Section or otherwise.
SECTION 8.2 RELATIONSHIP TO OTHER RIGHTS AND PROVISIONS CONCERNING
INDEMNIFICATION. The rights to indemnification and to the advancement of
expenses conferred in this Article VIII shall not be exclusive of any other
right which any person may have or hereafter acquire under this Certificate of
Incorporation, or any statute, bylaw, agreement, vote of stockholders or
disinterested directors or otherwise. The Bylaws of the Corporation may contain
such other provisions concerning indemnification, including provisions
specifying reasonable procedures relating to and conditions to the receipt by
indemnitees of indemnification, provided that such provisions are not
inconsistent with the provisions of this Article VIII.
SECTION 8.3 AGENTS AND EMPLOYEES. The Corporation may, to the extent
authorized from time to time by the Board of Directors, grant rights to
indemnification, and to the advancement of expenses, to any employee or agent of
the Corporation (or any person serving at the Corporation's request as a
director, trustee, officer, employee or agent of another enterprise) or to any
person who is or was a director, officer, employee or agent of any of the
Corporation's affiliates, predecessor or subsidiary corporations or a
constituent corporation absorbed by the Corporation in a consolidation or merger
or who is or was serving at the request of such affiliate, predecessor or
subsidiary corporation or of such constituent corporation as a director,
officer, employee or agent of another enterprise, in each case as determined by
the Board of Directors to the fullest extent of the provisions of this Article
VIII in cases of the indemnification and advancement of expenses of directors
and officers of the Corporation, or to any lesser extent (or greater extent, if
permitted by law) determined by the Board of Directors.
SECTION 8.4 RIGHT OF CLAIMANT TO BRING SUIT. If a claim under paragraph
8.1(a) of this Section is not paid in full by the Corporation within sixty (60)
days after a written claim has been received by the Corporation, except in the
case of a claim for advancement of expenses, in which case the applicable period
shall be thirty (30) days, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim. If successful
in whole or in part in any such suit, or in a suit brought by the Corporation to
recover an advancement of expenses pursuant to the terms of an undertaking, the
claimant shall be entitled to be paid also the expense of prosecuting or
defending such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the Corporation) that the claimant has
not met the standards of conduct which make it permissible under the General
Corporation Law of the State of Delaware for the Corporation to indemnify the
claimant for the amount claimed, but the burden of proving such defense shall be
on the Corporation. Neither the failure of the Corporation (including its Board,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of the claimant is
proper in the circumstances because he or she has met the applicable standard of
conduct set forth in the General Corporation Law of the State of Delaware, nor
an actual determination by the Corporation (including its Board, independent
legal counsel, or its stockholders) that the claimant has not met such
applicable standard of conduct, shall be a defense to the action or create a
presumption that the claimant has not met the applicable standard of conduct.
SECTION 8.5 INSURANCE, CONTRACTS AND FUNDING. The Corporation may maintain
insurance, at its expense, to protect itself and any director, trustee, officer,
employee or agent of the Corporation or another corporation, partnership, joint
venture, trust or other enterprise against any such expense, liability or loss,
whether or not the Corporation would have the power to indemnify such person
against such expense, liability or loss under the General Corporation Law of the
State of Delaware. The Corporation may enter into contracts with any person
entitled to indemnification hereunder or otherwise, and may create a trust fund,
grant a security interest, or use other means (including without limitation, a
letter of credit) to ensure the payment of such amounts as may be necessary to
effect indemnification as provided herein.
SECTION 8.6 SEVERABILITY. In the event that any of the provisions of this
Article VIII (including any provision within a single section, paragraph or
sentence) is held by a court of competent jurisdiction to be invalid, void or
otherwise unenforceable the remaining provisions are severable and shall remain
enforceable to the fullest extent permitted by law.
ARTICLE IX
LIMITATION ON LIABILITY OF DIRECTORS
No person shall be personally liable to the Corporation or its stockholders
for monetary damages for breach of fiduciary duty as a director, PROVIDED
HOWEVER, that the foregoing shall not eliminate or limit the liability of a
director (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 an improper personal benefit. If the Delaware
General Corporation Law is amended hereafter to authorize corporate action
further eliminating or limiting the personal liability of directors, then the
liability of a director of the Corporation shall be eliminated or limited to the
fullest extent permitted by the Delaware General Corporation Law, as so amended.
Any amendment, repeal or modification of this Article IX shall not adversely
affect any right or protection of a director of the Corporation existing
hereunder with respect to any act or omission occurring prior to such amendment,
repeal or modification.
ARTICLE X
AMENDMENT OF CERTIFICATE OF INCORPORATION
The Corporation hereby 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 the Delaware General Corporation Law, and all rights
conferred upon stockholders herein are granted subject to this reservation;
provided that during the Initial Period, any amendment of the provisions of this
Certificate shall require the affirmative votes of the holders of a majority of
the Class A Common Stock and the holders of a majority of the Class B Common
Stock, voting as separate classes. During the Initial Period, no amendment may
be made that would adversely affect the rights of the Class C Common Stock vis a
vis the Class A Common Stock and the Class B Common Stock.
ARTICLE XI
SEVERABILITY
In the event that any of the provisions of this Certificate of
Incorporation (including any provision within a single Article, Section,
paragraph or sentence) is held by a court of competent jurisdiction to be
invalid, void or otherwise unenforceable, the remaining provisions are severable
and shall remain enforceable to the full extent permitted by law.
IN WITNESS WHEREOF, the undersigned Chief Executive Officer has executed
this Amended and Restated Certificate of Incorporation, this 5th day of
February, 1997.
/s/ John J. Ghaznavi
John J. Ghaznavi
Chief Executive Officer
Exhibit 99.2
CERTIFICATE OF
DESIGNATIONS, PREFERENCES AND
RELATIVE, PARTICIPATING, OPTIONAL
OR OTHER RIGHTS, AND THE
QUALIFICATIONS, LIMITATIONS OR
RESTRICTIONS THEREOF, OF THE
SERIES A 10% CUMULATIVE CONVERTIBLE PREFERRED STOCK
OF
ANCHOR GLASS ACQUISITION CORPORATION
---------------------------------------------
Anchor Glass Acquisition Corporation, a corporation organized and existing
by virtue of the laws of the State of Delaware (the "Corporation"), does hereby
certify that the following resolutions were duly adopted by the Board of
Directors of the Corporation (the "Board of Directors") by Unanimous Written
Consent dated February 5, 1997:
RESOLVED THAT, pursuant to the authority expressly granted to and vested in
the Board of Directors of the Corporation by the provisions of the Certificate
of Incorporation of the Corporation (the "Certificate of Incorporation") and in
accordance with the provisions of Section 151 of the General Corporation Law of
the State of Delaware, the Board of Directors hereby creates, from the shares of
Preferred Stock (the "Preferred Stock") of the Corporation authorized to be
issued pursuant to the Certificate of Incorporation, a series of the Preferred
Stock designated the Series A 10% Cumulative Convertible Preferred Stock, and
hereby fixes the voting powers, designations, preferences and relative
participating, optional or other rights, and the qualifications, limitations or
restrictions thereof, of the shares of such series as follows:
1. DESIGNATION. Two Million Two Hundred Thirty-Nine Thousand Three
Hundred Twenty (2,239,320) shares of the Preferred Stock are hereby
designated Series A 10% Cumulative Convertible Preferred Stock with a par value
of one cent ($0.01) per share (the "Series A 10% Preferred Stock"), which
number, subject to the provisions of Section 6(c) hereof, may be increased or
decreased (but not below the number thereof then outstanding) from time to time
by the Board of Directors.
2. RANK. The Series A 10% Preferred Stock shall rank senior to the
Corporation's Common Stock, par value $0.10 per share ("Common Stock") which may
be in two or more classes, and to all other classes and series of Preferred
Stock, including but not limited to, the Series B 8% Cumulative Convertible
Preferred Stock of the Corporation.
3. DIVIDENDS.
(a) The holders of outstanding shares of Series A 10% Preferred Stock
shall be entitled to receive, when and as declared out of funds legally
available for the payment of cumulative cash dividends by the Board of
Directors, cash dividends on each share of outstanding Series A 10% Preferred
Stock (referred to herein individually as a "Share" and collectively as
"Shares") at a rate per annum of $2.50 per Share, from and including January 31,
1997 to and including the date on which the "Redemption Price" (as hereinafter
defined) of such Share is paid.
Such dividends, to the extent declared by the Board of Directors, will be
payable quarterly in arrears on each March 31, June 30, September 30 and
December 31 in each year, or, if any such date is not a business day, on the
next succeeding business day (hereinafter referred to individually as a
"Dividend Payment Date" and collectively as "Dividend Payment Dates"), to the
holders of Shares of record on the respective record dates fixed for that
purpose by the Board of Directors or a committee thereof in advance of the
payment of such dividends. To the extent that dividends are not paid on a
particular Dividend Payment Date, all such dividends will accrue on a quarterly
basis and will be paid on or before the Redemption Date on all Shares. Dividends
payable on Shares for any period of less than a full calendar quarter will be
computed on the basis of a 365 or 366 (as applicable) day year and the actual
days elapsed from the immediately preceding Dividend Payment Date, or from
February 5, 1997 with respect to the calendar quarter ending March 31, 1997.
Dividends paid on Shares in an amount less than the total amount of such
dividends at the time accrued and payable shall be allocated pro rata among all
Shares.
(b) Except as provided in the immediately succeeding sentence, so long as
any Shares are outstanding, the Corporation will not declare or pay or set apart
for payment any dividends or make any other distribution on any class of stock
of the Corporation ranking junior to the Series A 10% Preferred Stock (including
the Series B 8% Cumulative Convertible Preferred Stock and all classes of Common
Stock) either as to dividends or upon liquidation (collectively, "Junior
Securities") and will not redeem, purchase or otherwise acquire for value, or
set apart money or property for any sinking or other analogous fund for the
redemption or purchase of any shares of any Junior Securities (in any such case,
a "Junior Payment"), other than (i) cash dividends on the Series B 8% Cumulative
Convertible Preferred Stock of the Corporation; provided, however that any such
cash dividends may be paid only if all cumulative dividends on the Series A 10%
Preferred Stock for all Dividend Payment Dates prior to or concurrent with the
payment of such cash dividend have been paid, (ii) "Stock Dividends" as defined
in, and pursuant to, Section 3(a) of the Certificate of Designations for the
Series B 8% Cumulative Convertible Preferred Stock of the Corporation and (iii)
cash dividends on the Common Stock in an amount not to exceed, for any fiscal
year, the lesser of (x) 50% of the consolidated net income of the Corporation
and its subsidiaries available to be paid to the holders of the Common Stock
(after payment of all cumulative cash dividends on all series of Preferred
Stock) as determined in accordance with generally accepted accounting principles
in the United States as in effect from time to time and (y) Ten Million Dollars
($10,000,000); provided that any such cash dividends may be paid only if all
cumulative dividends on the Series A 10% Preferred Stock for all Dividend
Payment Dates prior to or concurrent with the payment of such cash dividends
have been paid. In the event that the Corporation pays any dividend on Junior
Securities, other than a dividend permitted by the immediately preceding
sentence (an "Other Dividend"), concurrently with the payment of such Other
Dividend the Corporation will pay a special dividend on the Shares such that the
holders of Shares will receive the same cash or property paid in connection with
such Other Dividend that they would have received had all Shares been converted
into shares of Common Stock immediately prior to the record date for such Other
Dividend.
4. LIQUIDATION.
(a) In the event of any liquidation, dissolution or winding up of the
affairs of the Corporation, whether voluntary or involuntary, the holders of
Shares, after the payment or provision for payment of the debts and liabilities
of the Corporation and before any payment or distribution of the assets of the
Corporation (whether capital, surplus or earnings) or proceeds therefrom shall
be made to or set apart for the holders of shares of any Junior Securities, the
holders of Shares shall be entitled to receive a cash payment of Twenty Five
Dollars ($25.00) per Share (the "Liquidation Value") held by them, plus an
amount equal to all dividends accrued and unpaid on such Shares to the date of
such payment.
(b) If upon any liquidation, dissolution or winding up of the
Corporation, the Corporation's assets to be distributed among the holders of the
10% Series A Preferred Stock are insufficient to permit payment to such holders
of the aggregate amount which they are entitled to be paid, then the entire
assets to be distributed will be distributed ratably among such holders based
upon the aggregate Liquidation Value of the Series A 10% Preferred Stock held by
each such holder. Neither the consolidation, combination or merger of the
Corporation into or with any other corporation or corporations or other entity
or entities, nor the sale or transfer by the Corporation of all or substantially
all of its assets, nor the reduction of the capital stock of the Corporation,
will be deemed to be a liquidation, dissolution or winding up of the Corporation
within the meaning of this Section 4.
5. REDEMPTION.
(a) MANDATORY REDEMPTION. The Corporation shall redeem all
Shares not later than January 31, 2009 (the "Mandatory Redemption Date") at the
Redemption Price; provided, however, that if there are insufficient funds
legally available for redemption in full of all Shares pursuant to this Section
5(a), the Corporation shall redeem in full such lesser number of Shares as may
lawfully be redeemed from funds legally available therefor, and shall redeem all
or part of the remainder of the Shares as soon as the Corporation has sufficient
funds which are legally available therefor until all Shares have been redeemed.
(b) OPTIONAL REDEMPTION. At any time and from time to time
after February 5, 2000, and before the Mandatory Redemption Date, provided that
the "Trading Price" (as defined below) of the Common Stock is greater than Six
Dollars ($6.00) per share, the Corporation shall have the right to redeem all or
any part of the Shares at the Redemption Price, by giving written notice thereof
to the affected stockholder or stockholders (the "Redemption Notice"); provided,
however, that less than all of the Shares may be redeemed only after all accrued
and unpaid and current dividends with respect to the Series A 10% Preferred
Stock have either been paid or set aside for payment. The Redemption Notice
shall specify the redemption date which shall be not less than thirty (30) days
after the date of the Redemption Notice and the number of Shares to be redeemed.
If fewer than all of the Shares are to be redeemed, the Shares to be redeemed
shall be selected by whichever of the following methods the Board of Directors
shall choose: by lot or pro rata in such manner as may be prescribed by
resolution of the Board of Directors. For purposes of this Section 5, Section
7(e), Section 8(a), and paragraphs (i), (ii) and (v) of Section 8(b) hereof,
"Trading Price" means, as to any security, (i) such security's closing sales
price on the principal nationally recognized domestic securities exchange
(including the NASDAQ Stock Market National Market tier) on which such security
may, at the time, be listed or, if there have been no sales on any such exchange
on any day, the average of the highest bid and lowest asked prices on all
exchanges on which such security may, at the time, be listed, at the end of such
day, or (ii) if on any day such security is not so listed, the average of the
representative bid and asked prices quoted in the NASDAQ Inter-Dealer Quotation
System (the "NASDAQ System") as of the close of trading in New York, New York on
such day, or (iii) if on any day such security is not quoted in the NASDAQ
System, the average of the high and low bid and asked prices on such day in the
domestic over-the- counter market as reported by the National Quotation Bureau,
Incorporated, or any similar successor organization, in the case of a
determination of Trading Price for purposes of this Section 5 averaged over a
period of sixty (60) consecutive "Trading Days" (as hereinafter defined) ending
on the Trading Day immediately preceding the date as of which the Trading Price
is being determined, and in the case of a determination of Trading Price for
purposes of Section 7(e), Section 8(a) and/or paragraph (i), (ii) or (v) of
Section 8(b) hereof as reported on the date of the applicable issuance or sale
or deemed issuance or sale, as the case may be, provided that if such date is
not a Trading Day as reported on the Trading Day immediately preceding such
date. As used herein, the term "Trading Day" shall mean any day on which trading
takes place on the applicable securities exchange or the NASDAQ System on which
the Common Stock is listed or traded, as the case may be.
(c) REDEMPTION PRICE. The redemption price for Shares (the
"Redemption Price") shall be Twenty Five Dollars ($25.00) per Share, plus an
amount equal to all accrued and unpaid dividends to the date of redemption (the
"Redemption Date"); provided, however, that the Redemption Price for all Shares
that have not been redeemed (or called for redemption with the funds for
redemption set aside in accordance with Section 5(d) hereof) on or before the
Mandatory Redemption Date shall bear interest at the rate of ten percent (10%)
per annum from and after the Mandatory Redemption Date until such Shares have
been redeemed and the Redemption Price, including accrued interest as aforesaid,
for such Shares has been paid in full.
(d) REDEMPTION PROCEDURE. Not more than sixty (60) and not
less than thirty (30) days prior to the Redemption Date, the Redemption Notice
shall be mailed to the holders of record of the Series A 10% Preferred Stock to
be redeemed, such notice to be addressed to each such holder at his last known
post office address shown on the records of the Corporation, and the time of
mailing such notice shall be deemed to be the time of the giving thereof. In
addition, notice of any redemption of Shares shall be published in The New York
Times or The Wall Street Journal not less than thirty (30) and not more than
sixty (60) days prior to the record date for such event (or, if there is no
record date, the date of such event). On or after the Redemption Date, each
holder of Series A 10% Preferred Stock called for redemption shall surrender his
certificate(s) for such stock to the Corporation at the place designated in such
notice and shall thereupon be entitled to receive payment of the Redemption
Price. Unless default is made in the payment of the Redemption Price, all rights
of the holders of such Shares as stockholders of the Corporation by reason of
the ownership of the respective Shares shall cease at the close of business on
the Redemption Date, except the right to receive payment in full of the
Redemption Price of such Shares on presentation and surrender of the certificate
or certificates for such Shares, and after the Redemption Date such Shares shall
not be deemed to be outstanding. In case less than all the Shares represented by
any such certificate are redeemed, a new certificate shall be issued
representing the unredeemed Shares without cost to the holder thereof. If the
Redemption Notice shall have been given as aforesaid, and if on or before the
Redemption Date funds necessary for the redemption shall have been set aside so
as to be and continue to be available therefor, then, notwithstanding the
certificates representing any Shares so called for redemption shall not have
been surrendered, the dividends thereon shall cease to accrue after the
Redemption Date, and all rights with respect to the Shares so called for
redemption shall forthwith after such Redemption Date cease, except only the
right of the holders to receive the Redemption Price without interest.
At its option, the Corporation may, on or prior to the Redemption Date,
deposit an amount equal to the aggregate Redemption Price of the Shares to be
redeemed with a bank or trust company having an office or agency in New York
City and having a combined capital and surplus of at least $100,000,000 (the
"Depositary") designated by the Board of Directors, to be held in trust by the
Depositary, for the sole benefit of the holders of the Series A 10% Preferred
Stock, for payment to the holders of such Shares then to be redeemed. If such
deposit is made and the funds so deposited are made immediately available to the
holders of the Shares to be redeemed, the Corporation shall thereupon be
released and discharged (subject to the provisions of the next paragraph of this
Section 5) from its obligation to make payment of the Redemption Price of the
Shares to be redeemed, and the holders of such Shares shall look only to the
Depositary for such payment. Any funds deposited with the Depositary as
aforesaid and which shall not be required for such redemption because of the
exercise of any right of conversion subsequent to the date of such deposit shall
be returned to the Corporation forthwith.
Any funds deposited with the Depositary as aforesaid with respect to
payment of the Redemption Price of Shares remaining unclaimed at the end of five
(5) years from and after the Redemption Date in respect of which such funds were
deposited, shall be returned to the Corporation forthwith; and thereafter the
holders of Shares redeemed on such Redemption Date shall look only to the
Corporation for the payment of the Redemption Price thereof. Any interest
accrued on any funds deposited with the Depositary shall belong to the
Corporation and shall be paid to it by the Depositary from time to time on
demand.
On or after the Redemption Date, the holders of Shares which have been
redeemed shall surrender their certificates representing such Shares to the
Corporation at its principal place of business or as otherwise notified, and
thereupon the Redemption Price of such Shares shall be paid to the order of the
holder of record of the Shares represented by such certificate or certificates
and each surrendered certificate shall be cancelled, and such Shares shall be
retired and shall not be reissued.
6. VOTING.
(a) NO VOTING RIGHTS. Except as otherwise provided by the Delaware
General Corporation Law and in this Section 6, the holders of Series A 10%
Preferred Stock shall have no voting rights whatsoever.
(b) DEFAULT IN PAYMENT OF DIVIDENDS. Whenever dividends
payable on Shares are in arrears and unpaid in an aggregate amount equal to or
exceeding the aggregate amount of dividends payable thereon for twelve (12)
quarterly dividend payments, the number of directors then constituting the Board
of Directors of the Corporation shall thereupon automatically be increased by
three, and the holders of the Series A 10% Preferred Stock shall have the
exclusive and special right, voting separately as a class to elect three
directors ("Series A Preferred Stock Directors") to fill such newly created
directorships by the vote of the holders of record of a majority of the Shares.
Whenever the right of the holders of Series A 10% Preferred Stock to elect
Series A Preferred Stock Directors shall have vested, such right may be
exercised initially either at a special meeting of such holders of Series A 10%
Preferred Stock called as provided in the following paragraph, or at any annual
meeting of stockholders, and thereafter at annual meetings of stockholders. The
right of the holders of Series A 10% Preferred Stock voting separately as a
class to elect Series A Preferred Stock Directors as aforesaid, when vested,
shall continue until such time as all dividends in arrears on the Shares shall
have been paid in full and, when so paid, the right of the holders of Series A
10% Preferred Stock to elect Series A Preferred Stock Directors as aforesaid
shall cease, subject always to revesting in the event of each and every
subsequent failure to pay in full the aggregate amount specified in the
preceding paragraph.
At any time when such special voting power shall have vested in the holders
of Series A 10% Preferred Stock as provided in the preceding paragraph, a proper
officer of the Corporation, shall upon the written request of the holders of
record of at least twenty-five percent (25%) of the Shares, call a special
meeting of the holders of record of the Series A 10% Preferred Stock, such
special meeting to be held within forty-five (45) calendar days after the date
on which such request is received by the Corporation, for the purpose of
enabling such holders to elect the number of directors specified above;
PROVIDED, HOWEVER, that such special meeting need not be called if an annual
meeting of stockholders of the Corporation for the election of directors shall
be scheduled to be held within such forty-five (45) calendar days; and PROVIDED,
FURTHER, that in lieu of any such special meeting, the election of the directors
to be elected thereat may be effected by the written consent of the holders of
record of a majority of the Shares.
Any director elected by the holders of record of the Series A 10% Preferred
Stock shall continue to serve as such director until (i) removed by the vote of
the holders of record of a majority of the Series A 10% Preferred Stock then
outstanding, voting separately as a class; (ii) the next annual meeting of the
stockholders of the Corporation and until his or her successor is duly elected
and qualified by the holders of Series A 10% Preferred Stock; or (iii) the right
of holders of the Series A 10% Preferred Stock, voting as a separate class, to
elect directors as provided in this Section 6(b) shall have terminated,
whichever first occurs.
If, prior to the end of the term of any director elected as aforesaid by
the holders of record of the Series A 10% Preferred Stock, a vacancy in the
office of such director shall occur by reason of death, resignation, removal or
disability, or for any other cause, such vacancy shall be filled for the
unexpired term by vote or written consent of the holders of record of a majority
of the outstanding Series A 10% Preferred Stock then outstanding, voting or
acting separately as a class.
(c) CHANGES AFFECTING THE SERIES A 10% PREFERRED STOCK.
Without the written consent of the holders of a majority of the outstanding
Series A 10% Preferred Stock (considered as a single class) or the favorable
vote of the holders of a majority of the outstanding Series A 10% Preferred
Stock (voting as a single class) which are represented at a meeting of the
holders of Series A 10% Preferred Stock called for such purpose, the Corporation
will not (i) create, authorize or issue any other class or series of stock (or
any security convertible into or exchangeable for such stock) which is on a
parity with or entitled to a preference prior to Series A 10% Preferred Stock
upon any dividend or distribution or any liquidation, distribution of assets,
dissolution or winding up of the Corporation, or increase the authorized amount
of any such other class or series, (ii) increase or decrease the authorized
number of shares of Series A 10% Preferred Stock, except that the Corporation
may authorize and issue additional shares of Series A 10% Preferred Stock
pursuant to the Plan Termination Agreement dated February 3, 1997 by and between
Consumers Packaging Inc., the Corporation and the Pension Benefit Guaranty
Corporation (the "PBGC Agreement"), (iii) increase or decrease the Liquidation
Value or the par value of the Series A 10% Preferred Stock or (iv) amend, alter
or repeal any provision of the Certificate of Incorporation so as to adversely
affect the relative rights and preferences of the Series A 10% Preferred Stock
in any respect. For the purpose of any consent or vote pursuant to this Section
6(c), each Share shall have one vote.
(d) The Corporation shall not sell, lease, convey or exchange
all or substantially all of the assets, property or business of the Corporation,
or merge or consolidate with or into any other corporation or otherwise
recapitalize or reorganize itself (such transactions being hereinafter in this
proviso referred to as a "Reorganization") unless (i) the resulting, surviving
or acquiring corporation will have after such Reorganization no stock either
authorized or outstanding ranking prior to, or on a parity with, the Series A
10% Preferred Stock or the stock of the resulting, surviving or acquiring
corporation issued in exchange therefor; (ii) each holder of shares of Series A
10% Preferred Stock immediately preceding such Reorganization will receive in
exchange therefor the same number of shares of stock, with substantially the
same preferences, rights and powers, of the resulting, surviving, or acquiring
corporation or the Corporation is the surviving corporation and the Series A 10%
Preferred Stock remains outstanding without change to its preferences, rights
and powers and (iii) notice of such transaction has been provided to all holders
of shares pursuant to the procedures set forth in Section 7(b) hereof.
7. CONVERSION.
(a) CONVERSION RIGHTS. Each holder of the Series A 10%
Preferred Stock will have the right to convert at any time and from time to time
at least ten percent (10%) or Two Thousand (2,000), whichever is less, of such
holder's Shares into Class A Common Stock at an exercise price of Six Dollars
($6.00) per share of Class A Common Stock, subject to adjustment in accordance
with the provisions of Section 8 hereof (the "Exercise Price"); provided that
the right to convert any Shares called for redemption shall terminate at the
close of business on the third business day prior to the date fixed for such
redemption unless default shall be made in the payment of the Redemption Price,
and upon any liquidation, dissolution or winding-up of the affairs of the
Corporation such right of conversion shall terminate at the close of business on
the third business day prior to the date fixed for payment of distributable
amounts on the Series A 10% Preferred Stock. Each Share held by each holder
will, without payment of any additional consideration by such holder, be
converted into that number of shares of Class A Common Stock determined by
dividing Twenty Five Dollars ($25.00) by the Exercise Price then in effect
("Conversion Ratio"), with the total number of shares of Class A Common Stock to
be issued to such holder upon such conversion being rounded to the nearest whole
share. Any Shares which are not converted to Class A Common Stock will remain
outstanding until converted by the holders or redeemed by the Corporation.
(b) CONVERSION PROCEDURES. Each holder of Series A 10%
Preferred Stock desiring to exercise his right of conversion shall deliver to
the Corporation written notice of his election to convert, and shall surrender
to the Corporation the certificates for the Shares to be converted (properly
endorsed or assigned for transfer if the Board of Directors of the Corporation
shall so require). Upon receipt by the Corporation of any such notice of
election to convert Series A 10% Preferred Stock and upon surrender of the
certificates therefor, the Corporation shall, as soon as practicable, and in any
event within ten (10) business days after the surrender of such certificate(s)
and the receipt of such notice relating thereto, execute and deliver to the
converting holder of Series A 10% Preferred Stock certificates for the number of
full shares of Class A Common Stock to which he is entitled upon conversion. If
more than one stock certificate for Series A 10% Preferred Stock shall be
surrendered for conversion at one time by the same holder, the number of full
shares of Class A Common Stock issuable upon conversion thereof shall be
computed on the basis of the aggregate number of Shares represented by all the
certificates so surrendered; PROVIDED, HOWEVER, that if less than the full
number of Shares evidenced by the surrendered certificate or certificates are
being converted, a new certificate or certificates, of like tenor, for the
number of Shares evidenced by such surrendered certificate or certificates less
the number of Shares converted. For all purposes related to the Shares being
converted, the rights of a converting holder of Series A 10% Preferred Stock as
a holder of such converted Shares shall cease, and the person or person in whose
name or names the certificates for Class A Common Stock issuable upon such
conversion are to be issued shall be deemed to have become the record holder or
holders of such Class A Common Stock at the close of business on the day on
which delivery of such notice or the surrender of the certificates for such
Shares (whichever shall last occur) shall be made.
(c) RESERVATION OF COMMON STOCK. The Corporation will at all
times reserve and keep available for issuance upon exercise of the conversion
rights described in this Section 7 such number of its authorized but unissued
shares of Class A Common Stock as will be sufficient to permit the exercise in
full of such conversion rights, and upon issuance of shares of Class A Common
Stock pursuant to any exercise of such conversion rights such shares of Class A
Common Stock will be validly issued, fully paid and nonassessable.
(d) TAXES ON CONVERSION. The Corporation will pay any and all
stamp or similar taxes that may be payable in respect of the issuance or
delivery of shares of Class A Common Stock on conversion of Shares pursuant to
this Section 7. The Corporation shall not, however, be required to pay any tax
which may be payable in respect of any transfer involved in the issuance and
delivery of shares of Class A Common Stock in a name other than that of the
holder of the Shares to be converted, and no such issuance or delivery shall be
made unless and until the person requesting such issuance has paid to the
Corporation the amount of any such tax, or has established to the satisfaction
of the Corporation that such tax has been paid.
(e) Upon conversion of any Shares into shares of Class A
Common Stock, the holder of such Shares shall be entitled to receive all accrued
and unpaid dividends on the Shares so converted to the date of conversion which
the Corporation, at its option, may pay in additional shares of Common Stock
valued at the Trading Price of the Common Stock on the date of notice described
in Section 7(b) hereof, or, if there is no such Trading Price on such date, at
the "Fair Market Value" (as defined in paragraph (i) of Section 8(b) hereof) of
the Common Stock on such date.
8. ANTI-DILUTION.
(a) GENERAL. The initial Exercise Price upon conversion of
Series A 10% Preferred Stock into Class A Common Stock is set forth in Section 7
hereof. Said Exercise Price will be subject to adjustment from time to time in
accordance with the provisions of this Section 8. Whenever the Corporation
issues or sells, or in accordance with Section 8(b) hereof is deemed to have
issued or sold, any shares of its Common Stock for a price per share less than
the Trading Price at the time of such issuance or sale or deemed issuance or
sale, as the case may be, or, if there is no Trading Price at such time, at a
price per share less than the Fair Market Value of the Common Stock at such
time, then (except in the case of the securities and transactions described in
Section 8(c) hereof) immediately upon such issuance or sale or deemed issuance
or sale, as the case may be, the Exercise Price will be reduced to a price
determined by multiplying the Exercise Price in effect immediately prior to such
issuance or sale or deemed issuance or sale, as the case may be, by a fraction,
(i) the numerator of which is the sum of (A) the number of shares of "Common
Stock Deemed Outstanding" (as defined below) immediately prior to such issuance
or sale or deemed issuance or sale, as the case may be, and (B) the number of
shares of Common Stock that the maximum aggregate consideration received or
receivable by the Corporation upon such issuance or sale or deemed issuance or
sale, as the case may be, would purchase at the Trading Price in effect
immediately prior to such issuance or sale or deemed issuance or sale, as the
case may be, or, if there is no Trading Price at such time, at the Fair Market
Value of the Common Stock at such time, and (ii) the denominator of which is the
number of shares of Common Stock Deemed Outstanding immediately after such
issuance or sale or deemed issuance or sale, as the case may be. For purposes of
this Section 8, the term "Common Stock Deemed Outstanding" means, at any given
time, the number of shares of Common Stock actually outstanding at such time,
plus the number of shares of Common Stock deemed to be outstanding pursuant to
paragraphs (i) and (ii) of Section 8(b) hereof.
(b) EFFECT ON EXERCISE PRICE OF CERTAIN EVENTS. For purposes
of determining the adjusted Exercise Price under Section 8(a) hereof (except in
the case of securities and transactions described in Section 8(c) hereof), the
following will be applicable:
(i) WARRANTS, OPTIONS OR OTHER RIGHTS. If the Corporation
issues, sells or grants any warrants, options or other rights to subscribe
for, purchase or otherwise acquire Common Stock or any stock, evidences of
indebtedness or other securities, directly or indirectly, convertible into or
exchangeable for Common Stock (such warrants, options or other rights being
herein called "Options" and such convertible or exchangeable stock or securities
being herein called "Convertible Securities") and the price per share of Common
Stock issuable upon exercise of such Options and/or upon conversion or exchange
of such Convertible Securities (the "Option Price") is less than the Trading
Price of the Common Stock at the time of the granting of such Options, or, if
there is no such Trading Price at such time, at a price per share less than the
Fair Market Value of the Common Stock at such time, then the total maximum
number of shares of Common Stock issuable upon exercise of such Options and/or
upon conversion or exchange of the total maximum amount of such Convertible
Securities issuable upon the exercise of such Options will be deemed to be
outstanding and to have been issued and sold by the Corporation for the Option
Price. For purposes of this paragraph (i), the Option Price will be determined
by dividing (A) the total amount, if any, received or receivable by the
Corporation as consideration for the granting of such Options, plus the minimum
aggregate amount of additional consideration, if any, payable to the Corporation
upon exercise of all such Options, plus, in the case of Options that relate to
Convertible Securities, the minimum aggregate amount of additional
consideration, if any, payable to the Corporation upon the issuance of all such
Convertible Securities and the conversion or exchange thereof, by (B) the total
maximum number of shares of Common Stock issuable upon the exercise of all such
Options or upon the conversion or exchange of all Convertible Securities
issuable upon the exercise of all such Options. Except as otherwise provided in
paragraphs (iii) and (iv) of this Section 8(b), no adjustment of the Exercise
Price will be made when Convertible Securities are actually issued upon exercise
of such Options or when Common Stock is actually issued upon exercise of such
Options or the conversion or exchange of such Convertible Securities. For
purposes of this paragraph (i) and paragraph (ii) of Section 8(b) and Section
7(e) hereof, "Fair Market Value" means an amount per share of Common Stock
determined, in good faith, by the Board of Directors; provided that, if the
holders of at least twenty-five percent (25%) of the outstanding Series A 10%
Preferred Stock ("Objecting Holders") notify the Corporation in writing, within
thirty (30) days after the date of the notice described in Section 8(f) hereof,
that they disagree with the Fair Market Value of the Common Stock as determined
by the Board of Directors and that they desire a determination of Fair Market
Value in accordance with clauses (A) through (E) of this paragraph (i), the
following shall apply:
(A) the Objecting Holders shall select a nationally
recognized investment banking firm which shall be identified in the notice
described above;
(B) the Company within thirty (30) days thereafter shall
select a nationally recognized investment banking firm and notify the
Objecting Holders;
(C) the two investment banking firms shall each make a
determination of the Fair Market Value of the Common Stock and if the two
determinations differ by no more than five percent (5%) of the higher of the two
determinations, the Fair Market Value of the Common Stock shall be the average
of the two determinations;
(D) if the two determinations made under clause (C) differ
by more than five percent (5%) of the higher of the two determinations, the
two investment banking firms shall select a third nationally recognized
investment banking firm which will determine the Fair Market Value of the Common
Stock within the range of the two determinations made under clause (C); and
(E) the Company and the Objecting Holders shall bear the
costs of their respective investment banking firms and, if applicable, the cost
of the third investment banking firm shall be borne by the Company or the
Objecting Holders, as the case may be, whose determination made under clause C
is the furtherest from the determination made under clause D.
(ii) CONVERTIBLE SECURITIES. If the Corporation issues or sells
(or otherwise creates) Convertible Securities (other than Convertible
Securities deemed to be outstanding and to have been issued and sold as
described in paragraph (i) of this Section 8(b) and in respect of which
adjustment to the Exercise Price has been made in accordance with said
paragraph), and the price per share for which Common Stock is issuable upon
conversion or exchange of such Convertible Securities (the "Conversion Price")
is less than the Trading Price of the Common Stock at the time of such issuance
or sale, or, if there is no such Trading Price at such time, at a price per
share less than the Fair Market Value of the Common Stock at such time, then the
total maximum number of shares of Common Stock issuable upon conversion or
exchange of all such Convertible Securities will be deemed to be outstanding and
to have been issued and sold by the Corporation for the Conversion Price. For
purposes of this paragraph (ii), the Conversion Price will be determined by
dividing (A) the total amount, if any, received or receivable by the Corporation
as consideration for the issuance or sale of such Convertible Securities, plus
the minimum aggregate amount of additional consideration, if any, payable to the
Corporation upon the conversion or exchange thereof, by (B) the total maximum
number of shares of Common Stock issuable upon the conversion or exchange of all
such Convertible Securities. Except as otherwise provided in paragraphs (iii)
and (iv) of this Section 8(b), no adjustment of the Exercise Price will be made
when Common Stock is actually issued upon the conversion or exchange of such
Convertible Securities.
(iii) CHANGE IN OPTION PRICE, CONVERSION PRICE OR CONVERSION
RATE. If the Option Price provided for in any Options, the Conversion Price
provided for in any Convertible Securities, or the rate at which any Convertible
Securities are convertible into or exchangeable for Common Stock changes at any
time (other than under or by reason of provisions of the type set forth in this
Section 8 that are designed to protect against dilution and that have no more
favorable effect on the holder of such Options or Convertible Securities than
this Section 8 would have if this Section 8 were included in the instrument
representing such Options or Convertible Securities), then the Exercise Price in
effect at the time of such change will be readjusted at such time to the
Exercise Price that would have been in effect had such Options or Convertible
Securities outstanding at the time of such change provided for such changed
Option Price, Conversion Price or conversion rate at the time of the original
grant, issuance or sale. Such adjustment of the Exercise Price will be made
whether the result is to increase or decrease the Exercise Price then in effect;
provided that no such adjustment will increase the Exercise Price above the
initial Exercise Price set forth in Section 7 hereof.
(iv) TREATMENT OF EXPIRED OPTIONS AND UNEXERCISED CONVERTIBLE
SECURITIES. Upon the expiration of any Option, or the termination of any right
to convert or exchange any Convertible Security, without the exercise of such
Option or the right to convert or exchange such Convertible Security, the
Exercise Price then in effect will be adjusted at the time of such expiration or
termination to the Exercise Price that would have been in effect had such Option
or Convertible Security never been granted or issued; provided that no such
adjustment will affect any shares of Common Stock issued upon conversion of
Shares of Series A 10% Preferred Stock prior to the date such adjustment is
made.
(v) CALCULATION OF CONSIDERATION. If any Common Stock,
Options or Convertible Securities are issued or sold or deemed to have been
issued or sold, as the case may be, for consideration that includes cash, then
the amount of cash consideration received and/or receivable by the Corporation
will be deemed to be the cash portion thereof. If any Common Stock, Options or
Convertible Securities are issued or sold or deemed to have been issued or sold,
as the case may be, for consideration part or all of which is other than cash,
then the amount of the consideration other than cash received and/or receivable
by the Corporation will be the fair value thereof, except where such
consideration consists of securities for which there is a Trading Price in which
case the amount of such consideration received and/or receivable by the
Corporation will be the Trading Price thereof, in each case determined as of the
date that such Common Stock, Options or Convertible Securities are issued or
sold or deemed to have been issued or sold, as the case may be. If any Common
Stock, Options or Convertible Securities are issued in connection with any
merger, consolidation or other business combination in which the Corporation is
the surviving or resulting entity, then the amount of consideration therefor
will be deemed to be the fair value of such portion of the net assets and
business of the non-surviving or non-resulting entity or entities as is
attributable to such Common Stock, Options or Convertible Securities, as the
case may be. For purposes of this paragraph (v) of Section 8(b), the
determination of fair value and any attribution of fair value to any Common
Stock, Options or Convertible Securities shall be made by the Board of Directors
of the Corporation in good faith.
(vi) If the Corporation shall be a party to any transaction,
including, without limitation, any merger, consolidation, sale of all or
substantially all of the Corporation's assets, liquidation or recapitalization
of the Common Stock (a "Transaction"), in which the Common Stock outstanding
immediately prior to the consummation of the Transaction shall be changed into,
or exchanged for, (A) different securities of the Corporation, (B) common stock
or other securities of another corporation, (C) interests in a noncorporate
entity, or (D) other property (including cash) or any combination of the
foregoing, then, as a condition of the consummation of any such Transaction,
lawful and adequate provision shall be made so that each holder of Shares shall
be entitled, upon conversion of such Shares, to receive an amount per Share so
converted equal to (Y) the aggregate amount of securities, interests, cash
and/or other property (payable in kind), as the case may be, into which or for
which a share of Common Stock was changed or exchanged in such Transaction times
(Z) the number of shares of Common Stock into which such Share was convertible
immediately prior to such Transaction.
(c) EXCLUDED SECURITIES AND TRANSACTIONS. The following securities
and transactions shall be excluded from the operation of Sections 8(a) and
8(b):
(i) the existence and any exercise of Common Stock Purchase
Warrants (A) issued to Bankers Trust Company and/or its affiliates and (B)
issued in connection with the sale of the Corporation's debt securities, in each
case for shares of Class C Common Stock in an amount not to exceed in the
aggregate ten percent (10%) of the fully diluted common equity of the
Corporation;
(ii) the existence of Three Million Three Hundred Sixty
Thousand (3,360,000) shares of the Series B 8% Cumulative Convertible
Preferred Stock of the Corporation issued and outstanding on the date hereof,
the payment of in-kind dividends on outstanding shares of the Series B 8%
Cumulative Convertible Preferred Stock, including dividends on outstanding
shares received as dividends, and the conversion of outstanding shares of Series
B 8% Cumulative Convertible Preferred Stock into Class B Common Stock;
(iii) Four Hundred Ninety Thousand Eight Hundred Ninety Eight
(490,898) shares of Class A Common Stock issued and outstanding on the date
hereof;
(iv) Two Hundred Thousand (200,000) shares of Class B Common
Stock issued and outstanding on the date hereof; and
(v) any grant or exercise of options to purchase up to an
aggregate of Two Million Five Hundred Thousand (2,500,000) shares of Common
Stock pursuant to any employee stock plan or non-employee director stock plan
approved by the Board of Directors and, if required, by the stockholders of the
Corporation.
(vi) the issuance of additional shares of Series A 10%
Preferred Stock to the Anchor Glass Container Corporation Service
Retirement Plan, the Pension Plan for Hourly Employees, Latchford Glass Company
and Associated Companies and/or the Anchor Glass Container Corporation
Retirement Plan for Salaried Employees pursuant to the PBGC Agreement.
(d) STOCK DIVIDENDS; SUBDIVISION OR COMBINATION OF COMMON
STOCK. If the Corporation, at any time after the date hereof (i) issues any
shares of Common Stock, Options or Convertible Securities as a dividend on
Common Stock, (ii) issues any shares of Common Stock, Options or Convertible
Securities in subdivision of outstanding shares of Common Stock, by
reclassification or otherwise, or (iii) combines outstanding shares of Common
Stock, by reclassification or otherwise, then the Exercise Price in effect
immediately prior to such action will be adjusted by multiplying it by a
fraction, (x) the numerator of which is the number of shares of Common Stock
Deemed Outstanding immediately prior to such action and (y) the denominator of
which is the number of shares of Common Stock Deemed Outstanding immediately
following such action. Such adjustment of the Exercise Price will be made
whether the result is to increase or decrease the Exercise Price then in effect;
provided that no such adjustment will increase the Exercise Price above the
initial Exercise Price set forth in Section 7 hereof.
(e) NO DE MINIMIS ADJUSTMENTS. No adjustment of the Exercise
Price will be made if the amount of such adjustment would be less than one cent
($0.01) per share, but in such case any adjustment that otherwise would be
required to be made will be carried forward and will be made at such time and
together with the next subsequent adjustment that together with any adjustment
or adjustments so carried forward, amounts to not less than one cent ($0.01) per
share.
(f) NOTICE OF ADJUSTMENT. Promptly upon any adjustment of the
Exercise Price, the Corporation will send written notice thereof to the holders
of Series A 10% Preferred Stock setting forth the adjusted Exercise Price and
the number of shares of Class A Common Stock issuable upon conversion of a Share
and also setting forth in reasonable detail the method of calculation of such
adjustment and number of shares, including any determination by the Board of
Directors of the Fair Market Value of the Common Stock. When appropriate, such
notice may be given in advance and included as part of any notice required to be
given pursuant to Section 8(g) hereof.
(g) NO IMPAIRMENT. The Corporation will not, through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or other voluntary action, avoid the observance or
performance of any of the terms to be observed or performed hereunder by the
Corporation but will at all times in good faith assist in the carrying out of
the provisions of this Section 8 and in the taking of all such action as may be
necessary or appropriate in order to protect the conversion rights of the
holders of the Shares against impairment. Without limiting the generality of the
foregoing, the Corporation (i) will not permit the par value of any shares of
stock at any time receivable upon the conversion of the Shares to exceed the
Exercise Price then in effect, (ii) will take all such action as may be
necessary or appropriate in order that the Corporation may validly and legally
issue fully paid, nonassessable shares of stock on the conversion of the Shares,
(iii) will not take any action which results in any adjustment of the Exercise
Price if the total number of shares of Class A Common Stock issuable after the
action upon the conversion of all of the Shares will exceed the total number of
shares of Class A Common Stock then authorized by the Corporation's Certificate
of Incorporation and available for the purpose of issue once upon such
conversion and (iv) will not take or permit any action which results in any
adjustment of the Exercise Price below a positive amount.
(h) If at any time after the date hereof:
(i) the Corporation shall pay any dividend in stock upon its
Common Stock or make any distribution (other than cash dividends) to the
holders of its Common Stock;
(ii) the Corporation shall offer for subscription or purchase
PRO RATA to the holders of its Common Stock any additional shares of stock
of any class or any other rights;
(iii) there shall be any reorganization or reclassification of
the capital stock of the Corporation, any consolidation, merger, or other
business combination of the Corporation with or into another entity, or a sale
or disposition of all or substantially all of the Corporation's assets; or
(iv) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Corporation, then in each such case, the
Corporation shall give prior written notice to the holders of the Series A 10%
Preferred Stock at the addresses of such holders as shown on the books of the
Corporation of (A) the date and time on which the books of the Corporation shall
close or a record shall be taken for the purpose of such action and (B) the date
and time, if known, on which such action will, or is expected to, take place. A
copy of each such notice will be sent simultaneously to each transfer agent of
the Common Stock. Such notice will also specify the date as of which the holders
of Common Stock of record will participate in such action. Such written notice
will be given at least thirty (30) days prior to the record date or the subject
action, whichever is earlier.
9. NO PREEMPTIVE RIGHTS. The holders of Series A 10% Preferred Stock shall
have no preemptive rights, and no holders of the Series A 10% Preferred Stock
shall be entitled, as a matter of right, to subscribe for or purchase shares of
any class now or hereafter authorized, or to subscribe for or purchase
securities convertible into or exchangeable for shares of any class or to which
shall be attached or appertain any warrants or rights entitling the holder
thereof to subscribe for or purchase shares of any class, except such rights of
subscription or purchase, if any, at such price or prices and upon such terms
and conditions, as the Board of Directors in its discretion may from time to
time determine.
10. ENFORCEMENT OF RIGHTS. Any holder of Series A 10% Preferred Stock may
proceed to protect and enforce its rights and the rights of such holders by any
available remedy by proceeding at law or in equity to protect and enforce any
such rights, whether for the specific enforcement of any provision of this
Certificate of Designation or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
IN WITNESS WHEREOF, Anchor Glass Acquisition Corporation has caused this
Certificate to be signed by its Vice President and attested by its Secretary
this 5th day of February, 1997.
ATTEST: ANCHOR GLASS ACQUISITION CORPORATION
/s/ C. Kent May By:/s/ William Lightner
Secretary Vice President
Exhibit 99.3
CERTIFICATE OF
DESIGNATIONS, PREFERENCES AND
RELATIVE, PARTICIPATING, OPTIONAL
OR OTHER RIGHTS, AND THE
QUALIFICATIONS, LIMITATIONS OR
RESTRICTIONS THEREOF, OF THE
SERIES B 8% CUMULATIVE CONVERTIBLE PREFERRED STOCK
OF
ANCHOR GLASS ACQUISITION CORPORATION
---------------------------------------------
Anchor Glass Acquisition Corporation, a corporation organized and existing
by virtue of the laws of the State of Delaware (the "Corporation"), does hereby
certify that the following resolutions were duly adopted by the Board of
Directors of the Corporation (the "Board of Directors") by Unanimous Written
Consent dated February 5, 1997:
RESOLVED THAT, pursuant to the authority expressly granted to and vested in
the Board of Directors of the Corporation by the provisions of the Certificate
of Incorporation of the Corporation (the "Certificate of Incorporation") and in
accordance with the provisions of Section 151 of the General Corporation Law of
the State of Delaware, the Board of Directors hereby creates, from the shares of
Preferred Stock (the "Preferred Stock") of the Corporation authorized to be
issued pursuant to the Certificate of Incorporation, a series of the Preferred
Stock designated the Series B 8% Cumulative Convertible Preferred Stock, and
hereby fixes the voting powers, designations, preferences and relative
participating, optional or other rights, and the qualifications, limitations or
restrictions thereof, of the shares of such series as follows:
1. DESIGNATION. Five Million (5,000,000) shares of the Preferred Stock are
hereby designated Series B 8% Cumulative Convertible Preferred Stock with a par
value of one cent ($0.01) per share (the "Series B 8% Preferred Stock"), which
number, subject to the provisions of Section 6(c) hereof, may be increased or
decreased (but not below the number thereof then outstanding) from time to time
by the Board of Directors.
2. RANK. The Series B 8% Preferred Stock shall rank senior to the
Corporation's Common Stock, par value $0.10 per share ("Common Stock") which may
be in two or more classes, and to all other classes and series of Preferred
Stock, other than the Series A 10% Cumulative Convertible Preferred Stock of the
Corporation as to which the Series B 8% Preferred Stock shall rank junior.
3. DIVIDENDS.
(a) On each "Dividend Payment Date" (as hereinafter defined) to and
including December 31, 1999, the holders outstanding of shares of Series B 8%
Preferred Stock shall be entitled to receive cumulative dividends on each share
of outstanding Series B 8% Preferred Stock (referred to herein individually as a
"Share" and collectively as "Shares") payable in shares of Series B 8% Preferred
Stock at the rate per annum of eight one-hundredths (8/100) of a share of Series
B 8% preferred Stock for each Share (individually a "Stock Dividend" and
collectively "Stock Dividends"). Stock Dividends shall be rounded to the nearest
whole Share. For the period ending March 31, 1997, the Stock Dividend shall be
calculated from and including February 5, 1997. On each Dividend Payment Date
subsequent to December 31, 1999, the holders of Shares shall be entitled to
receive, when and as declared out of funds legally available for the payment of
cash dividends, cumulative cash dividends on each Share at a rate per annum of
$2.00 per Share (individually a "Cash Dividend" and collectively "Cash
Dividends"), from and including January 1, 2000 to and including the date on
which the "Redemption Price" (as hereinafter defined) of such Share is paid.
Notwithstanding the foregoing, no Cash Dividend shall be paid at any time that
any accrued dividends on the Series A 10% Preferred Stock remain unpaid, but all
such Cash Dividends that are not so paid shall accrue until paid.
Stock Dividends, and, to the extent declared by the Board of Directors,
Cash Dividends will be payable quarterly in arrears and on each March 31, June
30, September 30 and December 31 in each year, or, if any such date is not a
business day, on the next succeeding business day (hereinafter referred to
individually as a "Dividend Payment Date" and collectively as "Dividend Payment
Dates"), to the holders of Shares of record on the respective record dates fixed
for that purpose by the Board of Directors or a committee thereof in advance of
the payment of such dividends. To the extent that dividends are not paid on a
particular Dividend Payment Date, all such dividends will accrue on a quarterly
basis and will be paid on or before the Redemption Date on all Shares. Dividends
payable on Shares for any period of less than a full calendar quarter will be
computed on the basis of a 365 or 366 (as applicable) day year and actual days
elapsed from the immediately preceding Dividend Payment Date, or from February
5, 1997 with respect to the calendar quarter ending March 31, 1997. Dividends
paid on Shares in an amount less than the total amount of such dividends at the
time accrued and payable shall be allocated pro rata among all Shares.
(b) Except as provided in the immediately succeeding sentence,
so long as any Shares are outstanding, the Corporation will not declare or pay
or set apart for payment any dividends or make any other distribution on any
class of stock of the Corporation ranking junior to the Series B 8% Preferred
Stock (including all classes of Common Stock) either as to dividends or upon
liquidation (collectively, "Junior Securities") and will not redeem, purchase or
otherwise acquire for value, or set apart money or property for any sinking or
other analogous fund for the redemption or purchase of any shares of any Junior
Securities (in any such case, a "Junior Payment"), other than cash dividends on
the Common Stock in an amount not to exceed, for any fiscal year, the lesser of
(i) fifty percent (50%) of the consolidated net income of the Corporation and
its subsidiaries available to be paid to the holders of the Common Stock (after
payment of all cumulative cash dividends on all series of Preferred Stock) as
determined in accordance with generally accepted accounting principles in the
United States as in effect from time to time and (ii) Ten Million Dollars
($10,000,000); provided that any such cash dividends may be paid only if all
cumulative dividends on the Series B 8% Preferred Stock for all Dividend Payment
Dates prior to or concurrent with the payment of such cash dividends have been
paid. In the event that the Corporation pays any dividend on Junior Securities,
other than a dividend permitted by the immediately preceding sentence (an "Other
Dividend"), concurrently with the payment of such Other Dividend the Corporation
will pay a special dividend on the Shares such that the holders of Shares will
receive the same cash or property paid in connection with such Other Dividend
that they would have received had all Shares been converted into shares of
Common Stock immediately prior to the record date for such Other Dividend.
4. LIQUIDATION.
(a) In the event of any liquidation, dissolution or winding up
of the affairs of the Corporation, whether voluntary or involuntary, the holders
of Shares, after the payment or provision for payment of the debts and
liabilities of the Corporation and before any payment or distribution of the
assets of the Corporation (whether capital, surplus or earnings) or proceeds
therefrom shall be made to or set apart for the holders of shares of any Junior
Securities, the holders of Shares shall be entitled to receive a cash payment of
Twenty Five Dollars ($25.00) per Share (the "Liquidation Value") held by them,
plus an amount equal to all dividends accrued and unpaid on such Shares to the
date of such payment.
(b) If upon any liquidation, dissolution or winding up of the
Corporation, the Corporation's assets to be distributed among the holders of the
Series B 8% Preferred Stock are insufficient to permit payment to such holders
of the aggregate amount which they are entitled to be paid, then the entire
assets to be distributed will be distributed ratably among such holders based
upon the aggregate Liquidation Value of the Series B 8% Preferred Stock held by
each such holder. Neither the consolidation, combination or merger of the
Corporation into or with any other corporation or corporations or other entity
or entities, nor the sale or transfer by the Corporation of all or substantially
all of its assets, nor the reduction of the capital stock of the Corporation,
will be deemed to be a liquidation, dissolution or winding up of the Corporation
within the meaning of this Section 4.
5. REDEMPTION.
(a) OPTIONAL REDEMPTION. At any time and from time to time
after February 5, 2000, provided that the "Trading Price" (as defined below) of
the Common Stock is greater than Five Dollars and fifty cents ($5.50) per share,
the Corporation shall have the right to redeem all or any part of the Shares at
the Redemption Price, by giving written notice thereof to the affected
stockholder or stockholders (the "Redemption Notice"); provided, however, that
less than all of the Shares may be redeemed only after all accrued and unpaid
and current dividends with respect to the Series B 8% Preferred Stock have
either been paid or set aside for payment. The Redemption Notice shall specify
the redemption date which shall be not less than thirty (30) days after the date
of the Redemption Notice and the number of Shares to be redeemed. If fewer than
all of the Shares are to be redeemed, the Shares to be redeemed shall be
selected by whichever of the following methods the Board of Directors shall
choose: by lot or pro rata in such manner as may be prescribed by resolution of
the Board of Directors. For purposes of this Section 5, Section 7(e), Section
8(a) and paragraphs (i), (ii) and (v) of Section 8(b) hereof, "Trading Price"
means, as to any security, (i) such security's closing sales price on the
principal nationally recognized domestic securities exchange (including the
NASDAQ Stock Market-National Market tier) on which such security may, at the
time, be listed or, if there have been no sales on any such exchange on any day,
the average of the highest bid and lowest asked prices on all exchanges on which
such security may, at the time, be listed, at the end of such day, or (ii) if on
any day such security is not so listed, the average of the representative bid
and asked prices quoted in the NASDAQ Inter-Dealer Quotation System (the "NASDAQ
System") as of the close of trading in New York, New York on such day, or (iii)
if on any day such security is not quoted in the NASDAQ System, the average of
the high and low bid and asked prices on such day in the domestic
over-the-counter market as reported by the National Quotation Bureau,
Incorporated, or any similar successor organization, in the case of a
determination of Trading Price for purposes of this Section 5 averaged over a
period of sixty (60) consecutive "Trading Days" (as hereinafter defined) ending
on the Trading Day immediately preceding the date as of which the Trading Price
is being determined, and in the case of a determination of Trading Price for
purposes of Section 7(e), Section 8(a) and/or paragraph (i), (ii) or (v) of
Section 8(b) hereof as reported on the date of the applicable issuance or sale
or deemed issuance or sale, as the same may be, provided that if such date is
not a Trading Day as reported on the Trading Day immediately preceding such
date. As used herein the term "Trading Day" shall mean any day on which trading
takes place on the applicable securities exchange or the NASDAQ System on which
the Common Stock is listed or traded, as the case may be. Notwithstanding the
foregoing, no redemption of Series B 8% Preferred Stock shall be made at any
time that shares of Series A 10% Preferred Stock are outstanding.
(b) REDEMPTION PRICE. The redemption price for Shares (the
"Redemption Price") shall be Twenty Five Dollars ($25.00) per Share, plus an
amount equal to all accrued and unpaid dividends to the date of redemption (the
"Redemption Date"); provided, however, that the Redemption Price for all Shares
that have not been redeemed (or called for redemption with the funds for
redemption set aside in accordance with Section 5(d) hereof) on or before the
Mandatory Redemption Date shall bear interest at the rate of eight percent (8%)
per annum from and after the Mandatory Redemption Date until such Shares have
been redeemed and the Redemption Price, including accrued interest as aforesaid,
for such Shares has been paid in full.
(c) REDEMPTION PROCEDURE. Not more than sixty (60) and not
less than thirty (30) days prior to the Redemption Date, the Redemption Notice
shall be mailed to the holders of record of the Series B 8% Preferred Stock to
be redeemed, such notice to be addressed to each such holder at his last known
post office address shown on the records of the Corporation, and the time of
mailing such notice shall be deemed to be the time of the giving thereof. In
addition, notice of any redemption of Shares shall be published in The New York
Times or The Wall Street Journal not less than thirty (30) and not more than
sixty (60) days prior to the record date for such event (or, if there is no
record date, the date of such event). On or after the Redemption Date, each
holder of Series B 8% Preferred Stock called for redemption shall surrender his
certificate(s) for such stock to the Corporation at the place designated in such
notice and shall thereupon be entitled to receive payment of the Redemption
Price. Unless default is made in the payment of the Redemption Price, all rights
of the holders of such Shares as stockholders of the Corporation by reason of
the ownership of the respective Shares shall cease at the close of business on
the Redemption Date, except the right to receive payment in full of the
Redemption Price of such Shares on presentation and surrender of the certificate
or certificates for such Shares, and after the Redemption Date such Shares shall
not be deemed to be outstanding. In case less than all the Shares represented by
any such certificate are redeemed, a new certificate shall be issued
representing the unredeemed Shares without cost to the holder thereof. If the
Redemption Notice shall have been given as aforesaid, and if on or before the
Redemption Date funds necessary for the redemption shall have been set aside so
as to be and continue to be available therefor, then, notwithstanding the
certificates representing any Shares so called for redemption shall not have
been surrendered, the dividends thereon shall cease to accrue after the
Redemption Date, and all rights with respect to the Shares so called for
redemption shall forthwith after such Redemption Date cease, except only the
right of the holders to receive the Redemption Price without interest.
At its option, the Corporation may, on or prior to the Redemption Date,
deposit an amount equal to the aggregate Redemption Price of the Shares to be
redeemed with a bank or trust company having an office or agency in New York
City and having a combined capital and surplus of at least $100,000,000 (the
"Depositary") designated by the Board of Directors, to be held in trust by the
Depositary, for the sole benefit of the holders of the Series B 8% Preferred
Stock, for payment to the holders of such Shares then to be redeemed. If such
deposit is made and the funds so deposited are made immediately available to the
holders of the Shares to be redeemed, the Corporation shall thereupon be
released and discharged (subject to the provisions of the next paragraph of this
Section 5) from its obligation to make payment of the Redemption Price of the
Shares to be redeemed, and the holders of such Shares shall look only to the
Depositary for such payment. Any funds deposited with the Depositary as
aforesaid and which shall not be required for such redemption because of the
exercise of any right of conversion subsequent to the date of such deposit shall
be returned to the Corporation forthwith.
Any funds deposited with the Depositary as aforesaid with respect to
payment of the Redemption Price of Shares remaining unclaimed at the end of five
(5) years from and after the Redemption Date in respect of which such funds were
deposited, shall be returned to the Corporation forthwith; and thereafter the
holders of Shares redeemed on such Redemption Date shall look only to the
Corporation for the payment of the Redemption Price thereof. Any interest
accrued on any funds deposited with the Depositary shall belong to the
Corporation and shall be paid to it by the Depositary from time to time on
demand.
On or after the Redemption Date, the holders of Shares which have been
redeemed shall surrender their certificates representing such Shares to the
Corporation at its principal place of business or as otherwise notified, and
thereupon the Redemption Price of such Shares shall be paid to the order of the
holder of record of the Shares represented by such certificate or certificates
and each surrendered certificate shall be cancelled, and such Shares shall be
retired and shall not be reissued.
6. VOTING.
(a) NO VOTING RIGHTS. Except as otherwise provided by the
Delaware General Corporation Law and in this Section 6, the holders of Series B
8% Preferred Stock shall have no voting rights whatsoever.
(b) DEFAULT IN PAYMENT OF DIVIDENDS. Whenever Cash Dividends
payable on Shares are in arrears and unpaid in an aggregate amount of dividends
payable thereon for twelve (12) quarterly dividend payments, the number of
directors then constituting the Board of Directors of the Corporation shall
thereupon automatically be increased by three, and the holders of the Series B
8% Preferred Stock shall have the exclusive and special right, voting separately
as a class to elect three directors ("Series B Preferred Stock Directors") to
fill such newly created directorships by the vote of the holders of record of a
majority of the Shares.
Whenever the right of the holders of Series B 8% Preferred Stock to elect
Series B Preferred Stock Directors shall have vested, such right may be
exercised initially either at a special meeting of such holders of Series B 8%
Preferred Stock called as provided in the following paragraph, or at any annual
meeting of stockholders, and thereafter at annual meetings of stockholders. The
right of the holders of Series B 8% Preferred Stock voting separately as a class
to elect Series B Preferred Stock Directors as aforesaid, when vested, shall
continue until such time as all Cash Dividends in arrears on the Shares shall
have been paid in full and, when so paid, the right of the holders of Series B
8% Preferred Stock to elect Series B Preferred Stock Directors as aforesaid
shall cease, subject always to revesting in the event of each and every
subsequent failure to pay in full the aggregate amount specified in the
preceding paragraph.
At any time when such special voting power shall have vested in the holders
of Series B 8% Preferred Stock as provided in the preceding paragraph, a proper
officer of the Corporation, shall upon the written request of the holders of
record of at least twenty-five percent (25%) of the Shares, call a special
meeting of the holders of record of the Series B 8% Preferred Stock, such
special meeting to be held within forty-five (45) calendar days after the date
on which such request is received by the Corporation, for the purpose of
enabling such holders to elect the number of directors specified above;
provided, HOWEVER, that such special meeting need not be called if an annual
meeting of stockholders of the Corporation for the election of directors shall
be scheduled to be held within such forty-five (45) calendar days; and PROVIDED,
FURTHER, that in lieu of any such special meeting, the election of the directors
to be elected thereat may be effected by the written consent of the holders of
record of a majority of the Shares.
Any director elected by the holders of record of the Series B 8% Preferred
Stock shall continue to serve as such director until (i) removed by the vote of
the holders of record of a majority of the Series B 8% Preferred Stock then
outstanding, voting separately as a class; (ii) the next annual meeting of the
stockholders of the Corporation and until his or her successor is duly elected
and qualified by the holders of Series B 8% Preferred Stock; or (iii) the right
of holders of the Series B 8% Preferred Stock, voting as a separate class, to
elect directors as provided in this Section 6(b) shall have terminated,
whichever first occurs.
If, prior to the end of the term of any director elected as aforesaid by
the holders of record of the Series B 8% Preferred Stock, a vacancy in the
office of such director shall occur by reason of death, resignation, removal or
disability, or for any other cause, such vacancy shall be filled for the
unexpired term by vote or written consent of the holders of record of a majority
of the Series B 8% Preferred Stock then outstanding, voting or acting separately
as a class.
(c) CHANGES AFFECTING THE SERIES B 8% PREFERRED STOCK.
Without the written consent of the holders of a majority of the outstanding
Series B 8% Preferred Stock (considered as a single class) or the favorable vote
of the holders of a majority of the outstanding Series B 8% Preferred Stock
(voting as a single class) which are represented at a meeting of the holders of
Series B 8% Preferred Stock called for such purpose, the Corporation will not
(i) create, authorize or issue any other class or series of stock (or any
security convertible into or exchangeable for such stock) which is on a parity
with or entitled to a preference prior to Series B 8% Preferred Stock (other
than the Series A 10% Cumulative Convertible Preferred Stock described in
Section 8(c) hereof) upon any dividend or distribution or any liquidation,
distribution of assets, dissolution or winding up of the Corporation, or
increase the authorized amount of any such other class or series, (ii) increase
or decrease the authorized number of shares of Series B 8% Preferred Stock,
(iii) increase or decrease the Liquidation Value or the par value of the Series
B 8% Preferred Stock or (iv) amend, alter or repeal any provision of the
Certificate of Incorporation so as to adversely affect the relative rights and
preferences of the Series B 8% Preferred Stock in any material respect. For the
purpose of any consent or vote pursuant to this Section 6(c), each Share shall
have one vote.
(d) The Corporation shall not sell, lease, convey or exchange
all or substantially all of the assets, property or business of the Corporation,
or merge or consolidate with or into any other corporation or otherwise
recapitalize or reorganize itself (such transactions being hereinafter in the
proviso referred to as a "Reorganization") unless (i) the resulting, surviving
or acquiring corporation will have after such Reorganization no stock either
authorized or outstanding ranking prior to, or on a parity with, the Series B 8%
Preferred Stock or the stock of the resulting, surviving or acquiring
corporation issued in exchange therefor; (ii) each holder of shares of Series B
8% Preferred Stock immediately preceding such Reorganization will receive in
exchange therefor the same number of shares of stock, with substantially the
same preferences, rights and powers, of the resulting, surviving, or acquiring
corporation or the Corporation is the surviving corporation and the Series B 8%
Preferred Stock remains outstanding without change to its preferences, rights
and powers and (iii) notice of such transaction has been provided to all holders
of shares pursuant to the procedures set forth in Section 7(b) hereof.
7. CONVERSION.
(a) CONVERSION RIGHTS. Each holder of the Series B 8%
Preferred Stock will have the right to convert at any time and from time to time
at least ten percent (10%) or Two Thousand (2,000), whichever is less, of such
holder's Shares into Class B Common Stock at an exercise price of Five Dollars
and fifty cents ($5.50) per share of Class B Common Stock, subject to adjustment
in accordance with the provisions of Section 8 hereof (the "Exercise Price");
provided that the right to convert any Shares called for redemption shall
terminate at the close of business on the third business day prior to the date
fixed for such redemption unless default shall be made in the payment of the
Redemption Price, and upon any liquidation, dissolution or winding-up of the
affairs of the Corporation such right of conversion shall terminate at the close
of business on the third business day prior to the date fixed for payment of
distributable amounts on the Series B 8% Preferred Stock. Each Share held by
each holder will, without payment of any additional consideration by such
holder, be converted into that number of shares of Class B Common Stock
determined by dividing Twenty Five Dollars ($25.00) by the Exercise Price then
in effect ("Conversion Ratio"), with the total number of shares of Class B
Common Stock to be issued to such holder upon such conversion being rounded to
the nearest whole share. Any Shares which are not converted to Class B Common
Stock will remain outstanding until converted by the holders or redeemed by the
Corporation.
(b) CONVERSION PROCEDURES. Each holder of Series B 8%
Preferred Stock desiring to exercise his right of conversion shall deliver to
the Corporation written notice of his election to convert, and shall surrender
to the Corporation the certificates for the Shares to be converted (properly
endorsed or assigned for transfer if the Board of Directors of the Corporation
shall so require). Upon receipt by the Corporation of any such notice of
election to convert Series B 8% Preferred Stock and upon surrender of the
certificates therefor, the Corporation shall, as soon as practicable, and in any
event within ten (10) business days after the surrender of such certificate(s)
and the receipt of such notice relating thereto, execute and deliver to the
converting holder of Series B 8% Preferred Stock certificates for the number of
full shares of Class B Common Stock to which he is entitled upon conversion. If
more than one stock certificate for Series B 8% Preferred Stock shall be
surrendered for conversion at one time by the same holder, the number of full
shares of Class B Common Stock issuable upon conversion thereof shall be
computed on the basis of the aggregate number of Shares represented by all the
certificates so surrendered; PROVIDED, HOWEVER, that if less than the full
number of Shares evidenced by the surrendered certificate or certificates are
being converted, a new certificate or certificates, of like tenor, for the
number of Shares evidenced by such surrendered certificate or certificates less
the number of Shares converted. For all purposes related to the Shares being
converted, the rights of a converting holder of Series B 8% Preferred Stock as a
holder of such converted Shares shall cease, and the person or person in whose
name or names the certificates for Class B Common Stock issuable upon such
conversion are to be issued shall be deemed to have become the record holder or
holders of such Class B Common Stock at the close of business on the day on
which delivery of such notice or the surrender of the certificates for such
Shares (whichever shall last occur) shall be made.
(c) RESERVATION OF COMMON STOCK. The Corporation will at all
times reserve and keep available for issuance upon exercise of the
conversion rights described in this Section 7 such number of its authorized but
unissued shares of Class B Common Stock as will be sufficient to permit the
exercise in full of such conversion rights, and upon issuance of shares of Class
B Common Stock pursuant to any exercise of such conversion rights such shares of
Class B Common Stock will be validly issued, fully paid and nonassessable.
(d) TAXES ON CONVERSION. The Corporation will pay any and all
stamp or similar taxes that may be payable in respect of the issuance or
delivery of shares of Class B Common Stock on conversion of Shares pursuant to
this Section 7. The Corporation shall not, however, be required to pay any tax
which may be payable in respect of any transfer involved in the issuance and
delivery of shares of Class B Common Stock in a name other than that of the
holder of the Shares to be converted, and no such issuance or delivery shall be
made unless and until the person requesting such issuance has paid to the
Corporation the amount of any such tax, or has established to the satisfaction
of the Corporation that such tax has been paid.
(e) Upon conversion of any Shares into shares of Class B
Common Stock, the holder of such Shares shall be entitled to receive all accrued
and unpaid dividends on the Shares so converted to the date of conversion which
the Corporation, at its option, may pay in additional shares of Common Stock
valued at the Trading Price of the Common Stock on the date of notice described
in Section 7(b) hereof, or, if there is no such Trading Price on such date, at
the "Fair Market Value" (as defined in paragraph (i) of Section 8(b) hereof) of
the Common Stock on such date.
8. ANTI-DILUTION. (a) GENERAL. The initial Exercise Price upon conversion
of Series B 8% Preferred Stock into Class B Common Stock is set forth in Section
7 hereof. Said Exercise Price will be subject to adjustment from time to time in
accordance with the provisions of this Section 8. Whenever the Corporation
issues or sells, or in accordance with Section 8(b) hereof is deemed to have
issued or sold, any shares of its Common Stock for a price per share less than
the Trading Price at the time of such issuance or sale or deemed issuance or
sale, as the case may be, or if there is no Trading Price at such time, at a
price per share less than the Fair Market Value of the Common Stock at such
time, then (except in the case of the securities and transactions described in
Section 8(c) hereof) immediately upon such issuance or sale or deemed issuance
or sale, as the case may be, the Exercise Price will be reduced to a price
determined by multiplying the Exercise Price in effect immediately prior to such
issuance or sale or deemed issuance or sale, as the case may be, by a fraction,
(i) the numerator of which is the sum of (A) the number of shares of "Common
Stock Deemed Outstanding" (as defined below) immediately prior to such issuance
or sale or deemed issuance or sale, as the case may be, and (B) the number of
shares of Common Stock that the maximum aggregate consideration received or
receivable by the Corporation upon such issuance or sale or deemed issuance or
sale, as the case may be, would purchase at the Trading Price in effect
immediately prior to such issuance or sale or deemed issuance or sale, as the
case may be, or, if there is no Trading Price at such time, at the Fair Market
Value of the Common Stock at such time, and (ii) the denominator of which is the
number of shares of Common Stock Deemed Outstanding immediately after such
issuance or sale or deemed issuance or sale, as the case may be. For purposes of
this Section 8, the term "Common Stock Deemed Outstanding" means, at any given
time, the number of shares of Common Stock actually outstanding at such time,
plus the number of shares of Common Stock deemed to be outstanding pursuant to
paragraphs (i) and (ii) of Section 8(b) hereof.
(b) EFFECT ON EXERCISE PRICE OF CERTAIN EVENTS. For purposes
of determining the adjusted Exercise Price under Section 8(a) hereof (except in
the case of securities and transactions described in Section 8(c) hereof), the
following will be applicable:
(i) WARRANTS, OPTIONS OR OTHER RIGHTS. If the
Corporation issues, sells or grants any warrants, options or other rights
to subscribe for, purchase or otherwise acquire Common Stock or any stock,
evidences of indebtedness or other securities, directly or indirectly,
convertible into or exchangeable for Common Stock (such warrants, options or
other rights being herein called "Options" and such convertible or exchangeable
stock or securities being herein called "Convertible Securities") and the price
per share of Common Stock issuable upon exercise of such Options and/or upon
conversion or exchange of such Convertible Securities (the "Option Price") is
less than the Trading Price of the Common Stock at the time of the granting of
such Options, or, if there is no such Trading Price at such time, at a price per
share less than the Fair Market Value of the Common Stock at such time, then the
total maximum number of shares of Common Stock issuable upon exercise of such
Options and/or upon conversion or exchange of the total maximum amount of such
Convertible Securities issuable upon the exercise of such Options will be deemed
to be outstanding and to have been issued and sold by the Corporation for the
Option Price. For purposes of this paragraph (i), the Option Price will be
determined by dividing (A) the total amount, if any, received or receivable by
the Corporation as consideration for the granting of such Options, plus the
minimum aggregate amount of additional consideration, if any, payable to the
Corporation upon exercise of all such Options, plus, in the case of Options that
relate to Convertible Securities, the minimum aggregate amount of additional
consideration, if any, payable to the Corporation upon the issuance of all such
Convertible Securities and the conversion or exchange thereof, by (B) the total
maximum number of shares of Common Stock issuable upon the exercise of all such
Options or upon the conversion or exchange of all Convertible Securities
issuable upon the exercise of all such Options. Except as otherwise provided in
paragraphs (iii) and (iv) of this Section 8(b), no adjustment of the Exercise
Price will be made when Convertible Securities are actually issued upon exercise
of such Options or when Common Stock is actually issued upon exercise of such
Options or the conversion or exchange of such Convertible Securities. For
purposes of this paragraph (i) and paragraph (ii) of Section 8(b) and Section
7(e) hereof, "Fair Market Value" means an amount per share of Common Stock
determined, in good faith, by the Board of Directors; provided that, if the
holders of at least twenty-five percent (25%) of the outstanding Series B 8%
Preferred Stock ("Objecting Holders") notify the Corporation in writing, within
thirty (30) days after the date of the notice described in Section 8(f) hereof,
that they disagree with the Fair Market Value of the Common Stock as determined
by the Board of Directors and that they desire a determination of Fair Market
Value in accordance with clauses (A) through (E) of this paragraph (i), the
following shall apply:
(A) the Objecting Holders shall select a nationally
recognized investment banking firm which shall be identified in the notice
described above;
(B) the Company within thirty (30) days thereafter
shall select a nationally recognized investment banking firm and notify the
Objecting Holders;
(C) the two investment banking firms shall each make a
determination of the Fair Market Value of the Common Stock and if the two
determinations differ by no more than five percent (5%) of the higher of the two
determinations, the Fair Market Value of the Common Stock shall be the average
of the two determinations;
(D) if the two determinations made under clause (C)
differ by more than five percent (5%) of the higher of the two
determinations, the two investment banking firms shall select a third nationally
recognized investment banking firm which will determine the Fair Market Value of
the Common Stock within the range of the two determinations made under clause
(C); and
(E) the Company and the Objecting Holders shall bear
the costs of their respective investment banking firms and, if applicable,
the cost of the third investment banking firm shall be borne by the Company or
the Objecting Holders, as the case may be, whose determination made under clause
C is the furtherest from the determination made under clause D.
(ii) CONVERTIBLE SECURITIES. If the Corporation issues or
sells (or otherwise creates) Convertible Securities (other than Convertible
Securities deemed to be outstanding and to have been issued and sold as
described in paragraph (i) of this Section 8(b) and in respect of which
adjustment to the Exercise Price has been made in accordance with said
paragraph), and the price per share for which Common Stock is issuable upon
conversion or exchange of such Convertible Securities (the "Conversion Price")
is less than the Trading Price of the Common Stock at the time of such issuance
or sale, or, if there is no such Trading Price at such time, at a price per
share less than the Fair Market Value of the Common Stock at such time, then the
total maximum number of shares of Common Stock issuable upon conversion or
exchange of all such Convertible Securities will be deemed to be outstanding and
to have been issued and sold by the Corporation for the Conversion Price. For
purposes of this paragraph (ii), the Conversion Price will be determined by
dividing (A) the total amount, if any, received or receivable by the Corporation
as consideration for the issuance or sale of such Convertible Securities, plus
the minimum aggregate amount of additional consideration, if any, payable to the
Corporation upon the conversion or exchange thereof, by (B) the total maximum
number of shares of Common Stock issuable upon the conversion or exchange of all
such Convertible Securities. Except as otherwise provided in paragraphs (iii)
and (iv) of this Section 8(b), no adjustment of the Exercise Price will be made
when Common Stock is actually issued upon the conversion or exchange of such
Convertible Securities.
(iii) CHANGE IN OPTION PRICE, CONVERSION PRICE OR CONVERSION
Rate. If the Option Price provided for in any Options, the Conversion Price
provided for in any Convertible Securities, or the rate at which any Convertible
Securities are convertible into or exchangeable for Common Stock changes at any
time (other than under or by reason of provisions of the type set forth in this
Section 8 that are designed to protect against dilution and that have no more
favorable effect on the holder of such Options or Convertible Securities than
this Section 8 would have if this Section 8 were included in the instrument
representing such Options or Convertible Securities), then the Exercise Price in
effect at the time of such change will be readjusted at such time to the
Exercise Price that would have been in effect had such Options or Convertible
Securities outstanding at the time of such change provided for such changed
Option Price, Conversion Price or conversion rate at the time of the original
grant, issuance or sale. Such adjustment of the Exercise Price will be made
whether the result is to increase or decrease the Exercise Price then in effect;
provided that no such adjustment will increase the Exercise Price above the
initial Exercise Price set forth in Section 7 hereof.
(iv) TREATMENT OF EXPIRED OPTIONS AND UNEXERCISED CONVERTIBLE
SECURITIES. Upon the expiration of any Option, or the termination of any right
to convert or exchange any Convertible Security, without the exercise of such
Option or the right to convert or exchange such Convertible Security, the
Exercise Price then in effect will be adjusted at the time of such expiration or
termination to the Exercise Price that would have been in effect had such Option
or Convertible Security never been granted or issued; provided that no such
adjustment will affect any shares of Common Stock issued upon conversion of
Shares of Series B 8% Preferred Stock prior to the date such adjustment is made.
(v) CALCULATION OF CONSIDERATION. If any Common Stock,
Options or Convertible Securities are issued or sold or deemed to have been
issued or sold, as the case may be, for consideration that includes cash, then
the amount of cash consideration received and/or receivable by the Corporation
will be deemed to be the cash portion thereof. If any Common Stock, Options or
Convertible Securities are issued or sold or deemed to have been issued or sold,
as the case may be, for consideration part or all of which is other than cash,
then the amount of the consideration other than cash received and/or receivable
by the Corporation will be the fair value thereof, except where such
consideration consists of securities for which there is a Trading Price in which
case the amount of such consideration received and/or receivable by the
Corporation will be the Trading Price thereof, in each case determined as of the
date that such Common Stock, Options or Convertible Securities are issued or
sold or deemed to have been issued or sold, as the case may be. If any Common
Stock, Options or Convertible Securities are issued in connection with any
merger, consolidation or other business combination in which the Corporation is
the surviving or resulting entity, then the amount of consideration therefor
will be deemed to be the fair value of such portion of the net assets and
business of the non-surviving or non-resulting entity or entities as is
attributable to such Common Stock, Options or Convertible Securities, as the
case may be. For purposes of this paragraph (v) of Section 8(b), the
determination of fair value and any attribution of fair value to any Common
Stock, Options or Convertible Securities shall be made by the Board of Directors
of the Corporation in good faith.
(vi) If the Corporation shall be a party to any transaction,
including, without limitation, any merger, consolidation, sale of all or
substantially all of the Corporation's assets, liquidation or recapitalization
of the Common Stock (a "Transaction"), in which the Common Stock outstanding
immediately prior to the consummation of the Transaction shall be changed into,
or exchanged for, (A) different securities of the Corporation, (B) common stock
or other securities of another corporation, (C) interests in a noncorporate
entity, or (D) other property (including cash) or any combination of the
foregoing, then, as a condition of the consummation of any such Transaction,
lawful and adequate provision shall be made so that each holder of Shares shall
be entitled, upon conversion of such Shares, to receive an amount per Share so
converted equal to (Y) the aggregate amount of securities, interests, cash
and/or other property (payable in kind), as the case may be, into which or for
which a share of Common Stock was changed or exchanged in such Transaction times
(Z) the number of shares of Common Stock into which such Share was convertible
immediately prior to such Transaction.
(c) EXCLUDED SECURITIES AND TRANSACTIONS. The following
securities and transactions shall be excluded from the operation of
Sections 8(a) and 8(b):
(i) the existence and any exercise of Common Stock Purchase
Warrants (A) issued to Bankers Trust Company and/or its affiliates and (B)
issued in connection with the sale of the Corporation's debt securities, in each
case for shares of Class C Common Stock in an amount not to exceed in the
aggregate ten percent (10%) of the fully diluted common equity of the
Corporation;
(ii) the existence of Two Million Two Hundred Forty Three
Thousand Three Hundred Twenty (2,243,320) shares of the Series A 10% Cumulative
Convertible Preferred Stock of the Corporation issued and outstanding on the
date hereof, and the conversion of outstanding shares of Series A 10% Cumulative
Convertible Preferred Stock into Class A Common Stock;
(iii) Four Hundred Ninety Thousand Eight Hundred Ninety Eight
(490,898) shares of Class A Common Stock issued and outstanding on the date
hereof;
(iv) Two Hundred Thousand (200,000) shares of Class B Common
Stock issued and outstanding on the date hereof; and
(v) any grant or exercise of options to purchase up to an
aggregate of Two Million Five Hundred Thousand (2,500,000) shares of Common
Stock pursuant to any employee stock plan or non-employee director stock plan
approved by the Board of Directors and, if required, by the stockholders of the
Corporation.
(vi) the issuance of additional shares of Series A 10%
Cumulative Convertible Preferred Stock to the Anchor Glass Container
Corporation Service Retirement Plan, the Pension Plan for Hourly Employees,
Latchford Glass Company and Associated Companies and/or the Anchor Glass
Container Corporation Retirement Plan for Salaried Employees pursuant to the
Plan Termination Agreement dated February 3, 1997 by and between Consumers
Packaging Inc., the Corporation and the Pension Benefit Guaranty Corporation.
(d) STOCK DIVIDENDS; SUBDIVISION OR COMBINATION OF COMMON
STOCK. If the Corporation, at any time after the date hereof (i) issues any
shares of Common Stock, Options or Convertible Securities as a dividend on
Common Stock, (ii) issues any shares of Common Stock, Options or Convertible
Securities in subdivision of outstanding shares of Common Stock, by
reclassification or otherwise, or (iii) combines outstanding shares of Common
Stock, by reclassification or otherwise, then the Exercise Price in effect
immediately prior to such action will be adjusted by multiplying it by a
fraction, (x) the numerator of which is the number of shares of Common Stock
Deemed Outstanding immediately prior to such action and (y) the denominator of
which is the number of shares of Common Stock Deemed Outstanding immediately
following such action. Such adjustment of the Exercise Price will be made
whether the result is to increase or decrease the Exercise Price then in effect;
provided that no such adjustment will increase the Exercise Price above the
initial Exercise Price set forth in Section 7 hereof.
(e) NO DE MINIMIS ADJUSTMENTS. No adjustment of the Exercise
Price will be made if the amount of such adjustment would be less than one cent
($0.01) per share, but in such case any adjustment that otherwise would be
required to be made will be carried forward and will be made at such time and
together with the next subsequent adjustment that together with any adjustment
or adjustments so carried forward, amounts to not less than one cent ($0.01) per
share.
(f) NOTICE OF ADJUSTMENT. Promptly upon any adjustment of the
Exercise Price, the Corporation will send written notice thereof to the holders
of Series B 8% Preferred Stock setting forth the adjusted Exercise Price and the
number of shares of Class B Common Stock issuable upon conversion of a Share and
also setting forth in reasonable detail the method of calculation of such
adjustment and number of shares, including any determination by the Board of
Directors of the Fair Market Value of the Common Stock. When appropriate, such
notice may be given in advance and included as part of any notice required to be
given pursuant to Section 8(g) hereof.
(g) NO IMPAIRMENT. The Corporation will not, through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or other voluntary action, avoid the observance or
performance of any of the terms to be observed or performed hereunder by the
Corporation but will at all times in good faith assist in the carrying out of
the provisions of this Section 8 and in the taking of all such action as may be
necessary or appropriate in order to protect the conversion rights of the
holders of the Shares against impairment. Without limiting the generality of the
foregoing, the Corporation (i) will not permit the par value of any shares of
stock at any time receivable upon the conversion of the Shares to exceed the
Exercise Price then in effect, (ii) will take all such action as may be
necessary or appropriate in order that the Corporation may validly and legally
issue fully paid, nonassessable shares of stock on the conversion of the Shares,
(iii) will not take any action which results in any adjustment of the Exercise
Price if the total number of shares of Class B Common Stock issuable after the
action upon the conversion of all of the Shares will exceed the total number of
shares of Class B Common Stock then authorized by the Corporation's Certificate
of Incorporation and available for the purpose of issue once upon such
conversion and (iv) will not take or permit any action which results in any
adjustment of the Exercise Price below a positive amount.
(h) If at any time after the date hereof:
(i) the Corporation shall pay any dividend in stock upon its
Common Stock or make any distribution (other than cash dividends) to the
holders of its Common Stock;
(ii) the Corporation shall offer for subscription or purchase
PRO RATA to the holders of its Common Stock any additional shares of stock
of any class or any other rights;
(iii) there shall be any reorganization or reclassification of
the capital stock of the Corporation, any consolidation, merger, or other
business combination of the Corporation with or into another entity, or a sale
or disposition of all or substantially all of the Corporation's assets; or
(iv) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Corporation, then in each such case, the
Corporation shall give prior written notice to the holders of the Series B 8%
Preferred Stock at the addresses of such holders as shown on the books of the
Corporation of (A) the date and time on which the books of the Corporation shall
close or a record shall be taken for the purpose of such action and (B) the date
and time, if known, on which such action will, or is expected to, take place. A
copy of each such notice will be sent simultaneously to each transfer agent of
the Common Stock. Such notice will also specify the date as of which the holders
of Common Stock of record will participate in such action. Such written notice
will be given at least thirty (30) days prior to the record date or the subject
action, whichever is earlier.
9. NO PREEMPTIVE RIGHTS. The holders of Series B 8% Preferred Stock shall
have no preemptive rights, and no holders of the Series B 8% Preferred Stock
shall be entitled, as a matter of right, to subscribe for or purchase shares of
any class now or hereafter authorized, or to subscribe for or purchase
securities convertible into or exchangeable for shares of any class or to which
shall be attached or appertain any warrants or rights entitling the holder
thereof to subscribe for or purchase shares of any class, except such rights of
subscription or purchase, if any, at such price or prices and upon such terms
and conditions, as the Board of Directors in its discretion may from time to
time determine.
10. ENFORCEMENT OF RIGHTS. Any holder of Series B 8% Preferred Stock may
proceed to protect and enforce its rights and the rights of such holders by any
available remedy by proceeding at law or in equity to protect and enforce any
such rights, whether for the specific enforcement of any provision of this
Certificate of Designation or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
IN WITNESS WHEREOF, Anchor Glass Acquisition Corporation has caused this
Certificate to be signed by its Vice President and attested by its Secretary
this 5th day of February, 1997.
ATTEST: ANCHOR GLASS ACQUISITION CORPORATION
/s/ C. Kent May By:/s/ William Lightner
Secretary Vice President
Exhibit 99.4
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
ANCHOR GLASS ACQUISITION CORPORATION
It is hereby certified that:
1. The name of the corporation (hereinafter called
the "corporation") is Anchor Glass Acquisition Corporation.
2. The Certificate of incorporation of the corporation is
hereby amended by striking out Article FIRST thereof and by substituting in lieu
of said Article the following new Article FIRST:
"The name of the corporation (hereinafter called the
"corporation") is Anchor Glass Container Corporation."
3. The amendment of the certificate of incorporation herein
certified has been duly adopted in accordance with the provisions of Sections
228 and 342 of the General Corporation Law of the State of Delaware.
Signed on January 31, 1997
/s/ John J. Ghaznavi
John J. Ghaznavi, Chairman & CEO
