Securities And Exchange Commission
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Pfizer Inc.
(Exact name of registrant as specified in its charter)
Delaware 13-5315170
(State of (I.R.S. Employer
Incorporation or Identification No.)
Organization)
235 East 42nd Street
New York, New York 10017
(Address of Principal Executive (Zip Code)
Offices)
Securities to be registered pursuant to
Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which Each
to be so Registered Class is to be Registered
Preferred Stock New York Stock Exchange
Purchase Rights
Securities to be registered pursuant to Section 12(g) of the Act:
(None)
Item 1. Description of Registrant's Securities to be Registered
Effective October 6, 1997 the Board of Directors of Pfizer Inc. the
"Company") declared a dividend of one preferred stock purchase right (a
"Right") for each share of common stock of the Company (the "Common Stock")
issued through such date. The dividend was issued to stockholders of record
as of the close of business on October 6, 1997. The Board also determined
that each share of Common Stock issued after such date through the Final
Expiration Date (as defined below) shall be issued with a tandem Right.
Accordingly, up to a total of three billion Rights will be issued, each in
tandem with a share of the authorized Common Stock. Each Right represents the
right to purchase one thousandth of a share of Series A Junior Preferred Stock
("Preferred Stock"), of the Company at a price of $275 (as the same may be
adjusted, the "Exercise Price"). The description and terms of the Rights are
set forth in a Rights Agreement (as the same may be amended from time to time,
the "Rights Agreement") dated as of October 6, 1997, between the Company and
ChaseMellon Shareholder Services L.L.C., as Rights Agent (the "Rights Agent").
The summary description of the Rights set out below does not purport to
be complete, and is qualified in its entirety by reference to the Rights
Agreement, as the same may be amended from time to time, which is hereby
incorporated herein by reference.
The Rights will be evidenced by Common Stock certificates until the
earlier to occur of (i) 10 days following a public announcement that a person
or group of affiliated or associated persons (with certain exceptions, an
"Acquiring Person") have acquired beneficial ownership of 15% or more of the
outstanding shares of Common Stock or (ii) 10 business days (or such later
date as may be determined by action of the Board of Directors prior to such
time as any person or group of affiliated persons becomes an Acquiring Person)
following the commencement of, or announcement of an intention to make, a
tender offer or exchange offer the consummation of which would result in the
beneficial ownership by a person or group of 30% or more of the outstanding
shares of Common Stock (the earlier of such dates being called the
"Distribution Date").
The Rights Agreement provides that, until the Distribution Date (or
earlier redemption or expiration of the Rights): (i) the Rights will be
transferred with and only with the Common Stock; (ii) Common Stock
certificates will contain a notation incorporating the Rights Agreement by
reference; and (iii) the surrender for transfer of any certificates for shares
of Common Stock will also constitute the transfer of the Rights associated
with the shares of Common Stock represented by such certificate. As soon as
practicable following the Distribution Date, separate certificates evidencing
the Rights ("Right Certificates") will be mailed to holders of record of the
Common Stock as of the close of business on the Distribution Date and
thereafter such separate Right Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date. The Rights
will expire on October 5, 2007 (the "Final Expiration Date"), unless the
Rights are earlier redeemed or exchanged by the Company, in each case as
described below.
The Exercise Price payable, and the number of shares of Preferred Stock
or other securities or property issuable, upon exercise of the Rights are
subject to adjustment from time to time to prevent dilution, for example, in
the event of a stock dividend on, or a subdivision, combination or
reclassification of, the Common Stock.
Shares of Preferred Stock purchasable upon exercise of the Rights will
be entitled, when, as and if declared, to a minimum preferential quarterly
dividend payment of 1000 times the per share amount of dividends declared on
common stock. If no common stock dividend is declared in a quarter, a
preferred stock dividend of $100 per share will be required. In the event of
liquidation, dissolution or winding up of the Company, the holders of the
Preferred Stock will be entitled to a preferential distribution payment of at
least 1000 times the payment made per share of Common Stock. Each share of
Preferred Stock will entitle the holder to one vote, voting together with the
Common Stock. Finally, in the event of any merger, consolidation or other
transaction in which shares of Common Stock are converted or exchanged, the
holder of each share of Preferred Stock will be entitled to receive 1000 times
the amount of consideration received per share of Common Stock in respect of
such transaction. The Rights are protected by customary antidilution
provisions.
Because of the nature of the Preferred Stock's dividend and liquidation
rights, the fair market value of the one thousandth of a share of Preferred
Stock purchasable upon exercise of each Right should approximate the fair
market value of one share of Common Stock.
If any person or group of affiliated or associated persons becomes an
Acquiring Person, each holder of a Right, (other than Rights beneficially
owned by the Acquiring Person, which become void), will have the right to
receive upon exercise and payment of the then current Exercise Price, that
number of shares of Preferred Stock having a market value of two times the
Exercise Price.
If, after a person or group has become an Acquiring Person, the Company
is acquired in a merger or other business combination transaction, or 50% or
more of its consolidated assets or earning power are sold, proper provision
will be made so that each holder of a Right (other than Rights beneficially
owned by an Acquiring Person, which become void) will thereafter have the
right to receive, upon exercise at the then current Exercise Price, that
number of shares of common stock of the person with whom the Company has
engaged in the foregoing transaction (or its parent), which at the time of
such transaction will have a market value of two times the Exercise Price.
In lieu of exercise, the Board of Directors of the Company may exchange
the Rights (other than Rights owned by the Acquiring Person, which become
void), in whole or in part, for such securities or other property or rights as
the Board may determine, including common stock or preferred stock of the
Company of any class or series.
No fractional shares of Preferred Stock will be issued, other than
fractions which are integral multiples of one thousandth of a share, which
may, at the election of the Company, be evidenced by depositary receipts. In
lieu of any other fractional interest, an adjustment in cash will be made
based on the market price of the Preferred Stock.
At any time prior to the time an Acquiring Person becomes such, the
Board of Directors of the Company may redeem the Rights in whole, but not in
part, at a price of $.01 per Right, subject to adjustment (the "Redemption
Price"). The redemption of the Rights may be made effective at such time, on
such basis and with such conditions as the Board of Directors may establish.
Immediately upon any redemption of the Rights, the right to exercise the
Rights will terminate and the only right of the holders of Rights will be to
receive the Redemption Price. The Rights may be amended by the Company to the
extent and on the conditions set out in the Rights Agreement.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the
right to vote or to receive dividends.
Item 2. Exhibits.
2.1. Amended and Restated Certificate of Designations of Series A
Junior Preferred Stock of the Company is filed herewith.
2.2 Restated Certificate of Incorporation of the Company as of April
1997 is incorporated herein by reference from the Company's quarterly report
on Form 10-Q for the period ended June 29, 1997.
2.3 By-laws of the Company are incorporated herein by reference from
Exhibit 3(ii) of the Company's Current Report on Form 8-K dated June 23, 1994.
2.4 Rights Agreement, dated as of October 6, 1997, between the Company
and ChaseMellon Shareholder Services L.L.C. is incorporated herein by
reference from the Company's Current Report on Form 8-K dated October 6, 1997.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
PFIZER INC.
Dated: October 6, 1997
By: /s/ C.L. Clemente
___________________________
Name: C.L. Clemente
Title: Senior Vice President &
Secretary
<PAGE>
EXHIBIT INDEX
Exhibit Description
No.
2.1. Amended and Restated Certificate of Designations of Series A Junior
Preferred Stock of the Company is filed herewith.
2.2 Restated Certificate of Incorporation of the Company as of April
1997, subsequently amended by Exhibit 2.1 above, is incorporated
herein by reference from the Company's quarterly report on Form 10-Q
for the period ended June 29, 1997.
2.3 By-laws of the Company are incorporated herein by reference from
Exhibit 3(ii) of the Company's Current Report on Form 8-K dated June
23, 1994.
2.4 Rights Agreement, dated as of October 6, 1997, between the Company
and ChaseMellon Shareholder Services L.L.C. is incorporated herein
by reference from the Company's Current Report on Form 8-K dated
October 6, 1997.
<PAGE>
AMENDED AND RESTATED
CERTIFICATE OF DESIGNATIONS
OF
SERIES A JUNIOR PREFERRED STOCK
OF
PFIZER INC.
Pursuant to Section 151 of the General Corporation Law of the state of Delaware,
PFIZER INC., a corporation organized and existing under the General
Corporation Law of the State of Delaware (the "Company"), in accordance with
the provisions of Sec 151(g) of such law, DOES HEREBY CERTIFY:
FIRST: On September 24, 1987, the Board of Directors of the
Company, pursuant to the authority conferred upon the Board of Directors by
the Restated Certificate of Incorporation of the Company, adopted a resolution
creating a series of 1,900,000 shares of Preferred Stock designated as "Series
A Junior Participating Preferred Stock".
SECOND: On May 25, 1989, the Board of Directors of the Company
adopted a resolution changing the designation of such series of Preferred
Stock to "Series A Junior Preferred Stock" and amending the terms thereof.
THIRD: No shares of such series of Preferred Stock have been
issued.
FOURTH: On September 25, 1997, the Board of Directors of the
Company adopted the following resolution further amending the terms of such
series of Preferred Stock to read in their entirety as set forth following the
resolution:
RESOLVED, that the designation, amount, voting powers,
preferences and relative, participating, optional or other special
rights of the shares of a series of Preferred Stock of the Company
designated as "Series A Junior Preferred Stock," and the
qualifications, limitations or restrictions thereof, are hereby
amended and restated to read in their entirety as set out in
Attachment A.
Attachment A:
Section 1. Designation and Amount. The shares of such
series shall be designated as "Series A Junior Preferred Stock"
(referred to herein as the "Series A Preferred Stock") and the
number of shares constituting such series shall be 3,000,000. The
Board of Directors of the Company may increase or decrease such
number form time to time as they deem appropriate, subject to the
then-current limitations of the Restated Certificate of
Incorporation and applicable law.
Section 2. Dividends and Distributions.
(A) Subject to the provisions for adjustment
hereinafter set forth, the holders of shares of Series A Preferred
Stock shall be entitled to receive, when, as and if declared by
the Board of Directors out of funds legally available for the
purpose, (i) in the event the Board of Directors of the Company
shall, at any time after the issuance of any share of Series A
Preferred Stock, declare a cash dividend payable on any class or
series of the Common Stock of the Company (the "Common Stock"), a
preferential cash dividend in an amount per share (rounded to the
nearest cent) equal to 1000 times the per share amount of such
cash dividend declared on a share of the Common Stock and (ii) a
preferential cash dividend (a "Preferential Dividend"), if any, on
the first day of January, April, July and October of each year
(each a "Quarterly Dividend Payment Date"), commencing on the
first Quarterly Dividend Payment Date after the first issuance of
a share or fraction or a share of Series A Preferred Stock, in an
amount equal to $100 per share of Series A Preferred Stock less
the per share amount of all cash dividends declared on the Series
A Preferred Stock pursuant to clause (i) of this sentence since
the immediately preceding Quarterly Dividend Payment Date or, with
respect to the first Quarterly Dividend Payment Date, since the
first issuance of any share of Series A Preferred Stock. In the
event the Board of Directors of the Company shall, at any time
after the issuance of any share of Series A Preferred Stock,
declare a distribution on the shares of Common Stock of the
Company, whether by way of a dividend or a reclassification of
stock, a recapitalization, reorganization or partial liquidation
of the Company or otherwise, which is payable in cash or any debt
security, debt instrument, real or personal property or any other
property (other than cash dividends subject to the immediately
preceding sentence), a distribution of shares of Common Stock or
other capital stock of the Company or a distribution of rights or
warrants to acquire any such share (including any debt security
convertible into or exchangeable for any such share), at a price
less than the Fair Market Value of such share, then and in each
such event each holder of Series A Preferred Stock shall be
entitled to receive when, as and if declared by the Board of
Directors, out of funds and assets legally available for the
purpose, a preferential distribution on each then outstanding
share of Series A Preferred Stock of the Company, in like kind, in
an amount equal to 1000 times the amount of such distribution paid
on a share of Common Stock (subject to the provisions for
adjustment hereinafter set forth). The dividends and
distributions on the Series A Preferred Stock to which holders
thereof are entitled pursuant to clause (i) of the first sentence
of this paragraph and pursuant to the second sentence of this
paragraph are hereinafter referred to as "Series A Dividends" and
the multiple of such cash and non-cash dividends on the Common
Stock applicable to the determination of the Series A Dividends,
which shall be 1000 initially but shall be adjusted from time to
time as hereinafter provided, is hereinafter referred to as the
"Dividend Multiple". In the event the Company shall at any time
after October 5, 1997 declare or pay any dividend or make any
distribution on Common Stock payable in shares of Common Stock, or
effect a subdivision or split or a combination, consolidation or
reverse split of the outstanding shares of Common Stock into a
greater or lesser number of shares of Common Stock, then in each
such case the Dividend Multiple thereafter applicable to the
determination of the amount of the Series A Dividends which
holders of shares of Series A Preferred Stock shall be entitled to
receive shall be the Dividend Multiple applicable immediately
prior to such event multiplied by a fraction the numerator of
which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately
prior to such event.
(B) So long as any shares of Series A
Preferred Stock are outstanding, no dividend or other distribution
(other than a dividend or distribution paid in shares of Common
Stock) shall be paid or set apart for payment by the Company on
the Common Stock, unless, in each case, the full dividends on all
outstanding shares of Series A Preferred Stock to which the
holders thereof are entitled shall have been paid. No dividends
shall be paid or declared or set apart for payment on the Series A
Preferred Stock in respect of any period unless dividends shall be
or have been paid, or declared and set apart for payment, pro rata
on all shares of Preferred Stock at the time outstanding of each
other series which ranks equally as to dividends with the Series A
Preferred Stock so that the amount of dividends declared on the
Series A Preferred Stock shall bear the same ratio to the amount
declared on each such other series as the accrued dividends on the
Series A Preferred Stock shall bear to the accrued dividends on
each such other series. Holders of shares of Series A Preferred
Stock shall not be entitled to any dividend, whether payable in
cash, property or stock, in excess of full dividends, as herein
provided, on shares of Series A Preferred Stock. Accruals of
dividends shall not bear interest.
(C) Preferential Dividends shall begin to
accrue on outstanding shares of Series A Preferred Stock from the
Quarterly Dividend Payment Date next preceding the date of
issuance of any shares of Series A Preferred Stock. Accrued but
unpaid Preferential Dividends shall cumulate but shall not bear
interest. Preferential Dividends paid on the shares of Series A
Preferred Stock in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares
at the time outstanding.
Section 3. Voting Rights. The holders of shares of
Series A Preferred Stock shall have the following voting rights:
(A) Each share of Series A Preferred Stock
shall entitle the holder thereof to 1 vote on all matters
submitted to a vote of the stockholders of the Company. Except as
otherwise provided herein, in the Restated Certificate of
Incorporation or by law, the holders of shares of Series A
Preferred Stock and the holders of shares of Common Stock shall
vote together as one class on all matters submitted to a vote of
stockholders of the Company.
(B) In the event that the Preferential
Dividends accrued on the Series A Preferred Stock for four or more
quarterly dividend periods, whether consecutive or not, shall not
have been declared and paid or set apart for payment, the holders
of record of the Series A Preferred Stock, together with any other
series of Preferred Stock in respect of which the following right
is expressly granted by the authorizing resolutions included in
the Certificate of Designations therefor, shall have the right, at
the next meeting of stockholders called for the election of
directors, to elect two members to the Board of Directors, which
directors shall be in addition to the number required by the By-
laws prior to such event, to serve until the next Annual Meeting
and until their successors are elected and qualified or their
earlier resignation, removal or incapacity or until such earlier
time as all accrued and unpaid Preferential Dividends upon the
outstanding shares of Series A Preferred Stock shall have been
paid (or set aside for payment) in full. The holders of shares of
Series A Preferred Stock shall continue to have the right to elect
directors as provided by the immediately preceding sentence until
all accrued and unpaid Preferential Dividends upon the outstanding
shares of Series A Preferred Stock shall have been paid (or set
aside for payment) in full. Such directors may be removed and
replaced by such stockholders, and vacancies in such directorships
may be filled only by such stockholders (or by the remaining
director elected by such stockholders, if there be one) in the
manner permitted by law; provided, however, that any such action
by stockholders shall be taken at a meeting of stockholders and
shall not be taken by written consent thereto.
(C) Except as otherwise required by the
Restated Certificate of Incorporation or by law or set forth
herein, holders of Series A Preferred Stock shall have no special
voting rights and their consent shall not be required (except to
the extent they are entitled to vote with holders of Common Stock
as set forth herein) for the taking of any corporate action.
Section 4. Certain Restrictions.
(A) Whenever Preferential Dividends or the Series A
Dividends are in arrears or the Company shall be in default of payment
thereof, thereafter and until all accrued and unpaid Preferential Dividends
and the Series A Dividends, whether or not declared, on shares of Series A
Preferred Stock outstanding shall have been paid or set aside for payment in
full, and in addition to any and all other rights which any holder of shares
of Series A Preferred Stock may have in such circumstances, the Company shall
not:
(i) declare or pay dividends on, make any other
distributions on (other than a dividend or distribution paid in shares of
Common Stock), or redeem or purchase or otherwise acquire for consideration,
any shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity as to dividends with
the Series A Preferred Stock, unless dividends are paid ratably on the Series
A Preferred Stock and all such parity stock on which dividends are payable or
in arrears in proportion to the total amounts to which the holders of all such
shares are then entitled if the full dividends accrued thereon were to be
paid;
(iii) except as permitted by subparagraph (iv) of this
paragraph 4(A), redeem or purchase or otherwise acquire for consideration
shares of any stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Preferred Stock,
provided that the Company may at any time redeem, purchase or otherwise
acquire shares of any such parity stock in exchange for shares of any stock of
the Company ranking junior (both as to dividends and upon liquidation,
dissolution or winding-up) to the Series A Preferred Stock; or
(iv) purchase or otherwise acquire for consideration
any shares of Series A Preferred Stock or any shares of stock ranking on a
parity with the Series A Preferred Stock (either as to dividends or upon
liquidation, dissolution or winding up), except in accordance with a purchase
offer made to all holders of such shares upon such terms as the Board of
Directors, after consideration of the respective annual dividend rates and
other relative rights and preferences of the respective series and classes,
shall determine will result in fair and equitable treatment among the
respective series or classes.
(B) The Company shall not permit any subsidiary (as
hereinafter defined) of the Company to purchase or otherwise acquire for
consideration any shares of stock of the Company unless the Company could,
under paragraph (A) of this Section 4, purchase or otherwise acquire such
shares at such time and in such manner. A "Subsidiary" of the Company shall
mean any corporation or other entity of which securities or other ownership
interests having ordinary voting power sufficient to elect a majority of the
board of directors or other persons performing similar functions are
beneficially owned, directly or indirectly, by the Company or by any
corporation or other entity that that is otherwise controlled by the Company.
(C) The Company shall not issue any shares of Series A
Preferred Stock except upon exercise of Rights issued pursuant to the
Company's Rights Agreement dated as of October 6, 1997, as it may be amended
and restated from time to time, a copy of which as is then currently in effect
shall kept on file with the Secretary of the Company at its principal
executive office and shall be made available to stockholders of record without
charge upon written request therefor addressed to said Secretary.
Notwithstanding the foregoing sentence, nothing contained in the provisions
hereof shall prohibit or restrict the Company from issuing for any purpose any
series of Preferred Stock with rights and privileges similar to, different
from, or greater than, those of the Series A Preferred Stock.
Section 5. Reacquired Shares. Any shares of Series A Preferred
Stock purchased or otherwise acquired by the Company in any manner whatsoever
shall be retired and canceled promptly after the acquisition thereof. All
such shares upon their retirement and cancellation shall become authorized but
unissued shares of Preferred Stock, without designation as to series, and such
shares maybe reissued as part of a new series of Preferred Stock to be created
by resolution or resolutions of the Board of Directors.
Section 6. Liquidation, Dissolution or Winding Up. Upon any
voluntary or involuntary liquidation, dissolution or winding up of the
Company, no distribution shall be made (i) to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Preferred Stock unless the holders of shares of
Series A Preferred Stock shall have received, subject to adjustment as
hereinafter provided, (A) $275 per one thousandth share plus an amount equal
to accrued and unpaid dividends and distributions thereon, whether or not
declared, to the date of such payment, or (B) if greater than the amount
specified in clause (i)(A) of this sentence, an amount equal to 1000 times the
aggregate amount to be distributed per share to holders of Common Stock, as
the same may be adjusted as hereinafter provided, and (ii) to the holders of
stock ranking on a parity upon liquidation, dissolution or winding up with the
Series A Preferred Stock, unless simultaneously therewith distributions are
made ratably on the Series A Preferred Stock and all other shares of such
parity stock in proportion to the total amounts to which the holders of shares
of Series A Preferred Stock are entitled under clause (1)(A) of this sentence
and to which the holders of such parity shares are entitled, in each case upon
such liquidation, dissolution or winding up. The amount to which holders of
Series A Preferred Stock may be entitled upon liquidation, dissolution or
winding up of the Company pursuant to clause (i)(B) of the foregoing sentence
is hereinafter referred to as the "Participating Liquidation Amount" and the
multiple of the amount to be distributed to holders of shares of Common Stock
upon the liquidation, dissolution or winding up of the Company applicable
pursuant to said clause to the determination of the Participating Liquidation
Amount, as said multiple may be adjusted from time to time as hereinafter
provided, is hereinafter referred to as the "Liquidation Multiple". In the
event the Company shall at any time after October 5, 1997 declare or pay any
dividend on Common Stock payable in shares of Common Stock, or effect a
subdivision or split or a combination, consolidation or reverse split of the
outstanding shares of Common Stock into a greater or lesser number of shares
of Common Stock, then in each such case, the Liquidation Multiple thereafter
applicable to the determination of the Participating Liquidation Amount to
which holders of Series A Preferred Stock shall be entitled after such event
shall be the Liquidation Multiple applicable immediately prior to such event
multiplied by a fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
Section 7. Certain Reclassifications and other Events.
(A) In the event that holders of shares of Common Stock of the
Company receive after October 5, 1997 in respect of their shares of Common
Stock any share of capital stock of the Company (other than any share of
Common Stock of the Company), whether by way of reclassification,
recapitalization, reorganization, dividends or other distribution or otherwise
(a "Transaction"), then and in each such event the dividend rights and rights
upon the liquidation, dissolution or winding up of the Company of the shares
of Series A Preferred Stock shall be adjusted so that after such event the
holders of Series A Preferred Stock shall be entitled, in respect of each
share of Series A Preferred Stock held, in addition to such rights in respect
thereof to which such holder was entitled immediately prior to such
adjustment, to (i) such additional dividends as equal the Dividend Multiple in
effect immediately prior to such Transaction multiplied by the additional
dividends which the holder of a share of Common Stock shall be entitled to
receive by virtue of the receipt in the Transaction of such capital stock and
(ii) such additional distributions upon liquidation, dissolution or winding up
of the Company as equal the Liquidation Multiple in effect immediately prior
to such Transaction multiplied by the additional amount which the holder of a
share of Common Stock shall be entitled to receive upon liquidation,
dissolution or winding up of the Company by virtue of the receipt in the
Transaction of such capital stock, as the case may be, all as provided by the
terms of such capital stock.
(B) In the event that holders of shares or Common Stock of
the Company receive after October 5, 1997 in respect of their shares of Common
Stock any right or warrant to purchase Common Stock (including as such a
right, for all purposes of this paragraph, any security convertible into or
exchangeable for Common Stock) at a purchase price per share less than the
Fair Market Value (as hereinafter defined) of a share of Common Stock on the
date of issuance of such right or warrant, then and in each such event the
dividend rights and rights upon the liquidation, dissolution or winding up of
the Company of the shares of Series A Preferred Stock shall each be adjusted
so that after such event the Dividend Multiple and the Liquidation Multiple
shall each be the product of the Dividend Multiple and the Liquidation
Multiple, as the case may be, in effect immediately prior to such event
multiplied by a fraction the numerator of which shall be the number of shares
of Common Stock outstanding immediately before such issuance of rights or
warrants plus the maximum number of shares of Common Stock which could be
acquired upon exercise in full of all such rights or warrants and the
denominator of which shall be the number of shares of Common Stock outstanding
immediately before such issuance of rights or warrants plus the number of
shares of Common Stock which could be purchased, at the Fair Market Value of
the Common Stock at the time of such issuance, by the maximum aggregate
consideration payable upon exercise in full of all such rights or warrants.
(C) In the event that holders of shares of Common Stock of
the Company receive after October 5, 1997 in respect of their shares of Common
Stock any right or warrant to purchase capital stock of the Company (other
than shares of Common Stock), including as such a right, for all purposes of
this paragraph, any security convertible into or exchangeable for capital
stock of the Company (other than Common Stock), at a purchase price per share
less than the Fair Market Value of such shares of capital stock on the date of
issuance of such right or warrant, then and in each such event the dividend
rights and rights upon liquidation, dissolution or winding up of the Company
of the shares of Series A Preferred Stock shall each be adjusted so that after
such event each holder of a share of Series A Preferred Stock shall be
entitled, in respect of each share of Series A Preferred Stock held, in
addition to such rights in respect thereof to which such holder was entitled
immediately prior to such event, to receive (i) such additional dividends as
equal the Dividend Multiple in effect immediately prior to such event
multiplied, first, by the additional dividends to which the holder of a share
of Common Stock shall be entitled upon exercise of such right or warrant by
virtue of the capital stock which could be acquired upon such exercise and
multiplied again by the Discount Fraction (as hereinafter defined) and (ii)
such additional distributions upon liquidation, dissolution or winding up of
the Company as equal the Liquidation Multiple in effect immediately prior to
such event multiplied, first, by the additional amount which the holder of a
share of Common Stock shall be entitled to receive upon liquidation,
dissolution or winding up of the Company upon exercise of such right or
warrant by virtue of the capital stock which could be acquired upon such
exercise and multiplied again by the Discount Fraction. For purposes of this
paragraph, the "Discount Fraction" shall be a fraction the numerator of which
shall be the difference between the Fair Market Value of a share of the
capital stock subject to a right or warrant distributed to holders of shares
of Common Stock of the Company as contemplated by this paragraph immediately
after the distribution thereof and the purchase price per share for such share
of capital stock pursuant to such right or warrant and the denominator of
which shall be the Fair Market Value of a share of such capital stock
immediately after the distribution of such right or warrant.
(D) For purposes of this Section 7, the "Fair Market
Value" of a share of capital stock of the Company (including a share of Common
Stock) on any date shall be deemed to be the average of the daily closing
price per share thereof over the 30 consecutive Trading Days (as such term is
hereinafter defined) immediately prior to such date; provided, however, that,
in the event that such Fair Market Value or any such share or capital stock is
determined during a period which includes any date that is within 30 Trading
Days after (i) the ex-dividend date for a dividend or distribution on stock
payable in shares of such stock or securities convertible into shares or such
stock, or (ii) the effective date of any subdivision, split, combination,
consolidation, reverse stock split or reclassification of such stock, then,
and in each such case, the Fair Market Value shall be appropriately adjusted
by the Board or Directors of the Company to take into account ex-dividend or
post-effective date trading. The closing price for any day shall be the last
sale price, regular way, or, in case no such sale takes place on such day, the
average or the closing bid and asked prices, regular way (in either case, as
reported in the applicable transaction reporting system with respect to
securities listed or admitted to trading on the New York Stock Exchange), or,
if the shares are not listed or admitted to trading on the New York Stock
Exchange, as reported in the applicable transaction reporting system with
respect to securities listed on the principal national securities exchange on
which the shares are listed or admitted to trading or, if the shares are not
listed or admitted to trading on any national securities exchange, the last
quoted price or, if not so quoted, the average of the high bid and low asked
prices in the over-the-counter market, as reported by the National Association
of Securities Dealers, Inc. Automated Quotation System ("NASDAQ") or such
other-system then in use, or if on any such date the shares are not quoted by
any such organization, the average of the closing bid and asked prices as
furnished by a professional market maker making a market in the shares
selected by the Board of Directors of the Company. The term "Trading Day"
shall mean a day on which the principal national securities exchange on which
the shares are listed or admitted to trading is open for the transaction of
business or, if the shares are not listed or admitted to trading on any
national securities exchange, on which the New York Stock Exchange or such
other national securities exchange as may be selected by the Board of
Directors of the Company is open. If the shares are not publicly held or not
so listed or traded on any day within the period of 30 Trading Days applicable
to the determination of Fair Market Value thereof as aforesaid, "Fair Market
Value" shall mean the fair market value thereof per share as determined by the
Board of Directors of the Company. In either case referred to in the
foregoing sentence, the determination of Fair Market Value shall be described
in a statement filed with the Secretary of the Company.
Section 8. Consolidation, Merger, etc. In case the Company shall
enter into any consolidation, merger, combination or other transaction in
which the shares of Common Stock are exchanged for or changed into other stock
or securities, cash and/or any other property, then in any such case each
outstanding share of Series A Preferred Stock shall at the same time be
similarly exchanged for or changed into the aggregate amount of stock,
securities, cash and/or other property (payable in like kind), as the case may
be, for which or into which each share of Common Stock is changed or
exchanged, multiplied by the higher of the Dividend Multiple or the
Liquidation Multiple in effect immediately prior to such event.
Section 9. Effective Time of Adjustments.
(A) Adjustments to the Series A Preferred Stock required
by the provisions hereof shall be effective as of the time at which the event
requiring such adjustments occurs.
(B) The Company shall give prompt written notice to each
holder of a share of Series A Preferred Stock of the effect of any adjustment
to the dividend rights or rights upon liquidation, dissolution or winding up
of the Company of such shares required by the provisions hereof.
Notwithstanding the foregoing sentence, the failure of the Company to give
such notice shall not affect the validity of or the force or effect of or the
requirement for such adjustment.
Section 10. No Redemption. The shares of Series A Preferred
Stock shall not be redeemable at the option of the Company or any holder
thereof. Notwithstanding the foregoing sentence of this Section, the Company
may acquire shares of Series A Preferred Stock in any other manner permitted
by law, the provisions hereof and the Restated Certificate of Incorporation of
the Company.
Section 11. Ranking. Unless otherwise provided in the Restated
Certificate of Incorporation of the Company or a Certificate of Designations
relating to a subsequent series of preferred stock of the Company, the Series
A Preferred Stock shall rank junior to all other series of the Company's
Preferred Stock as to the payment or dividends and the distribution of assets
on liquidation, dissolution or winding up, and senior to the Common Stock.
Section 12. Amendment. The provisions hereof and the Restated
Certificate of Incorporation of the Company shall not be amended in any manner
which would adversely affect the rights, privileges or powers of the Series A
Preferred Stock without, in addition to any other vote of stockholders
required by law, the affirmative vote of the holders of two-thirds or more of
the outstanding shares of Series A Preferred Stock, voting together as a
single class.
IN WITNESS WHEREOF, I have executed and subscribed this Amended
and Restated Certificate of Designations and do affirm the foregoing as true
under the penalties of perjury this ___1___ day of October, 1997.
ATTEST: William C. Steere, Jr.
Chairman & Chief Executive
Officer
Terence J. Gallagher
Assistant Secretary
