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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K/A
(Amendment No. 1)
Current Report Pursuant to Section 13 or 15(d) of
The Securities Act of 1934
Date of Report (Date of earliest event reported) June 11, 1997
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Tetra Tech, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 0-19655 95-4148514
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(State or other (Commission (I.R.S. Employer
jurisdiction File Number) Identification No.)
of incorporation)
630 N. Rosemead Boulevard, Pasadena, California 91107-2190
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (626) 351-4664
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Not applicable
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(Former name or former address, if changed since last report.)
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This amendment is filed in order to re-file Exhibit 4.1 to the
Registrant's Current Report on Form 8-K for the event of June 11, 1997.
The undersigned Registrant hereby amends the following item of its
Current Report on Form 8-K for the event of June 11, 1997:
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) EXHIBITS.
4.1 Certificate of Designation of Preferences of Series A Preferred
Stock.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: June 23, 1997
TETRA TECH, INC.
By: /s/ James M. Jaska
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James M. Jaska
Vice President and Chief Financial Officer
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EXHIBIT 4.1
CERTIFICATE OF DESIGNATION OF
PREFERENCES OF THE
SERIES A PREFERRED STOCK
OF TETRA TECH, INC.
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Pursuant to Section 151 of the
General Corporation Law of the
State of Delaware
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The undersigned, Li-San Hwang and Richard A. Lemmon, hereby certify as
follows:
A. That Li-San Hwang is, and at all times herein mentioned was, the
duly elected and acting Chief Executive Officer of Tetra Tech, Inc., a Delaware
corporation (the "Corporation"), and that Richard A. Lemmon is, and at all times
herein mentioned was, the duly elected and acting Secretary of the Corporation.
B. That the following resolution was duly adopted by the Board of
Directors of the Corporation:
RESOLVED, that pursuant to authority conferred upon the Board of
Directors by the Certificate of Incorporation of the Corporation, there is
hereby created a series of preferred stock of the Corporation, designated as
"Series A Preferred Stock", which series shall consist of One Million Two
Hundred Thirty-One Thousand Eight Hundred Forty (1,231,840) shares, $0.01 par
value per share. In addition to those set forth in the Certificate of
Incorporation of the Corporation, the shares of Series A Preferred Stock shall
have the powers and preferences, the participating, optional or other special
rights, and the qualifications, limitations or restrictions set forth below:
1. Definitions. As used in this resolution, the following terms
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shall have the meanings indicated:
(a) "Board" shall mean the Board of Directors of the
Corporation.
(b) "Common Stock" shall mean the Common Stock, $0.01 par value,
per share issued or to be issued by the Corporation.
(c) "Corporation" shall mean Tetra Tech, Inc.
(d) "Series A Preferred Stock" shall mean the Series A Preferred
Stock, $0.01 par value per share, issued or to be issued by the Corporation.
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2. Dividends.
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(a) The holders of Series A Preferred Stock shall be entitled to
receive, out of funds legally available therefor, such cash dividends as the
Board in its discretion may declare from time to time, at such rate and on such
date as the Board may determine with respect to any such dividend, pari passu
with any dividends paid on the Common Stock, in an amount per share equal to the
per share amount paid with respect to the Common Stock, calculated as if each
share of Series A Preferred Stock represented the number of shares of Common
Stock into which it is or would be convertible (assuming such shares of Series A
Preferred Stock were then convertible) as of the record date fixed for
determination of the holders of Common Stock of the Corporation then entitled to
receive such distribution. No cash dividend shall be declared or paid to
holders of the Common Stock unless at the same time a cash dividend is declared
and paid with respect to the Series A Preferred Stock.
(b) In the event the Corporation shall declare a distribution
payable in (i) securities of other persons, (ii) evidences of indebtedness
issued by the Corporation or other persons, (iii) assets (excluding cash
dividends), or (iv) options or rights to purchase capital stock or evidences of
indebtedness in the Corporation of other persons, then, in each such case for
the purpose of this Section 2(b), the holders of the Series A Preferred Stock
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shall be entitled to a proportionate share of any such distribution as if they
were the holders of the number of shares of Common Stock of the Corporation into
which their shares of Series A Preferred Stock are or would be convertible
(assuming such shares of Series A Preferred Stock were then convertible) as of
the record date fixed for determination of the holders of Common Stock of the
Corporation entitled to receive such distribution.
3. Liquidation Rights.
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(a) In the event of any liquidation, dissolution or winding up
of the Corporation, whether voluntary or involuntary, the holders of outstanding
shares of Series A Preferred Stock, shall be entitled to be paid out of the
assets of the Corporation available for distribution to its stockholders,
whether such assets are capital, surplus or earnings, before any payment or
declaration and setting apart for payment of any amount shall be made in respect
of the outstanding shares of any other class or series of the Corporation's
capital stock, including without limitation, shares of Common Stock, an amount
equal to $19.75 per share of Series A Preferred Stock then outstanding, times
the Conversion Ratio (as defined in Section 5(a) below), plus all accrued but
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unpaid dividends thereon to the date fixed for liquidation (whether or not
declared), and no more. If upon any liquidation, dissolution or winding up of
the Corporation, whether voluntary or involuntary, the assets to be distributed
among the holders of the outstanding shares of Series A Preferred Stock shall be
insufficient to permit the payment to such stockholders of the full preferential
amounts aforesaid, then the entire assets of the Corporation to be distributed
shall be distributed ratably among the holders of outstanding shares of Series A
Preferred Stock based on the full preferential amounts for the number of
outstanding shares of Series A Preferred Stock held by each holder.
2.
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(b) After the payment or setting apart of the payment to the
holders of outstanding shares of Series A Preferred Stock of the preferential
amounts aforesaid, the holders of Series A Preferred Stock shall be entitled to
receive the remaining assets of the Corporation available for distribution pro
rata with the other holders of shares of capital stock of the Corporation as
though they were the holders of the number of shares of Common Stock of the
Corporation into which their shares of Series A Preferred Stock are or would be
convertible (assuming such shares of Series A Preferred Stock were then
convertible) as of the record date applicable to such distribution, but only to
the extent that the amount payable pursuant to this Section 3(b) exceeds the
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amount payable to the holders of Series A Preferred Stock under Section 3(a)
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above.
(c) Neither a consolidation or merger of the Corporation with or
into any other corporation, nor a merger of any other corporation into the
Corporation, nor the purchase or redemption of all or part of the outstanding
shares of any class or classes of stock of the Corporation, nor a sale or
transfer of all or any part of its assets, shall be considered a liquidation,
dissolution or winding up of the Corporation within the meaning of this Section
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3(c).
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4. Voting Rights. At all meetings of the stockholders of the
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Corporation and in the case of any actions of stockholders in lieu of a meeting,
each holder of shares of Series A Preferred Stock shall be entitled to that
number of votes per share of Series A Preferred Stock held to which such holder
would be entitled if such holder were the holder of the number of shares of
Common Stock into which such holder's shares of Series A Preferred Stock are or
would be convertible (assuming such shares of Series A Preferred Stock were then
convertible) as of the record date applicable to such stockholder vote. Except
as otherwise expressly provided in Section 6 below or as required by law, the
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holders of Common Stock and Series A Preferred Stock shall vote together as a
single class in accordance with the preceding sentence, and neither the Common
Stock nor the Series A Preferred Stock shall be entitled to vote as a separate
class on any matter to be voted on by stockholders of the Corporation.
5. Automatic Conversion.
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(a) Each share of Series A Preferred Stock shall automatically
be converted (the "Conversion") into one share of Common Stock, subject to
adjustment as described herein ("Conversion Ratio"), immediately upon the filing
of an amendment to the Corporation's Certificate of Incorporation which
increases the number of authorized shares of Common Stock to a number sufficient
to permit the Conversion of all the then outstanding shares of Series A
Preferred Stock.
(b) Upon the occurrence of the event specified in Section 5(a)
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above the outstanding shares of the Series A Preferred Stock shall be converted
automatically without any further action by the holders of such shares and
whether or not the certificates representing such shares are surrendered to the
Corporation or its transfer agent, from and after the date of automatic
conversion, certificates representing shares of Series A Preferred
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Stock shall be deemed to represent the number of shares of Common Stock shown on
the face of such stock certificates, times the Conversion Ratio; provided,
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however, that the Corporation shall not be obligated to issue certificates
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evidencing the shares of Common Stock issuable upon the Conversion unless the
certificates evidencing such shares of Series A Preferred Stock are either
delivered to the Corporation or its transfer agent as provided below, or the
holder notifies the Corporation or its transfer agent that such certificates
have been lost, stolen or destroyed and executes an agreement satisfactory to
the Corporation to indemnify the Corporation from any loss incurred by it in
connection with such certificates. Upon the occurrence of the Conversion of the
Series A Preferred Stock, the holders of the Series A Preferred Stock shall
surrender the certificates representing such shares at the office of the
Corporation or any transfer agent for the Series A Preferred Stock or Common
Stock. Thereupon, there shall be issued and delivered to such holder promptly
at such office and in its name as shown on such surrendered certificate or
certificates, a certificate or certificates for the number of shares of Common
Stock into which the shares of the Series A Preferred Stock surrendered were
convertible on the date on which the Conversion occurred, and the Corporation
shall promptly pay in cash all declared and unpaid dividends on the shares of
the Series A Preferred Stock being converted, to and including the date of
Conversion.
(c) No fractional shares of Common Stock shall be issued upon
Conversion of the Series A Preferred Stock. Whether or not fractional shares
would be issuable upon such Conversion shall be determined on the basis of the
total number of shares of Series A Preferred Stock being converted into Common
Stock and the number of shares of Common Stock issuable upon such aggregate
Conversion. In lieu of any fractional share to which the holder would otherwise
be entitled, the Corporation shall pay cash equal to the product of such
fraction multiplied by the closing price of the Common Stock on the Nasdaq Stock
Market on the date of Conversion.
6. Adjustments.
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(a) The Conversion Ratio shall be subject to adjustment as
follows:
(i) In the event the Corporation shall at any time (A)
pay a dividend or make a distribution to holders of Common Stock in
shares of capital stock, (B) subdivide its outstanding shares of
Common Stock into a larger number of shares, (C) combine its
outstanding shares of Common Stock into a smaller number of shares, or
(D) issue by reclassification of its shares of Common Stock any shares
of the Corporation, the Conversion Ratio in effect immediately prior
thereto shall be adjusted as provided below so that the holder of any
shares of Series A Preferred Stock thereafter surrendered for
Conversion shall be entitled to receive the number of shares of the
Corporation which such holder would have owned or have been entitled
to receive after the happening of any of the events described above,
had such share of Series A Preferred Stock been converted immediately
prior to the happening of such event. Any adjustment made pursuant to
this subparagraph (i) shall become effective retroactively immediately
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after the record date in the case of a
4.
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dividend and shall become effective immediately after the effective
date in the case of a subdivision, combination or reclassification.
(ii) In case the Corporation shall issue rights or
warrants to all holders of its Common Stock entitling them to
subscribe for or purchase shares of Common Stock at a price per share
less than the current market price (as hereinafter defined) per share
of Common Stock at the record date mentioned below, the number of
shares of Common Stock into which each share of Series A Preferred
Stock shall thereafter be convertible shall be determined by
multiplying the number of shares of Common Stock into which such share
of Series A Preferred Stock was theretofore convertible by a fraction,
of which the numerator shall be the number of shares of Common Stock
outstanding on the date of issuance of such rights or warrants plus
the number of additional shares of Common Stock offered for
subscription or purchase, and of which the denominator shall be the
number of shares of Common Stock outstanding on the date of issuance
of such rights or warrants plus the number of shares which the
aggregate offering price of the total number of shares so offered
would purchase at such current market price. Such adjustment shall be
made whenever such rights or warrants are issued, and shall become
effective retroactively immediately after the record date for the
determination of stockholders entitled to receive such rights or
warrants.
(iii) In case the Corporation shall distribute to all
holders of its Common Stock evidences of its indebtedness or assets or
rights or warrants to subscribe for or purchase securities issued by
the Corporation or property of the Corporation (excluding those
referred to in subparagraph (ii) above), then in each such case the
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number of shares of Common Stock into which each share of Series A
Preferred Stock shall thereafter be convertible shall be determined by
multiplying the number of shares of Common Stock into which such share
of Series A Preferred Stock was theretofore convertible by a fraction,
of which the numerator shall be the current market price per share of
the Common Stock, and of which the denominator shall be such current
market price per share of Common Stock, less the then fair market
value (as determined by the Board of Directors of the Corporation,
whose determination shall be conclusive) of the portion of the assets
or evidence of indebtedness so distributed or of such rights or
warrants applicable to one share of the Common Stock. Such adjustment
shall be made whenever any such distribution is made, and shall become
effective retroactively immediately after the record date for the
determination of stockholders entitled to receive such distribution.
(iv) If any such rights or warrants referred to above
shall expire without having been exercised, the Conversion Ratio as
theretofore adjusted because of the issue of such rights or warrants
shall forthwith be readjusted to the Conversion Ratio which would have
been in effect had an
5.
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adjustment been made on the basis that only the rights or warrants so
issued or sold were those rights or warrants actually exercised and
that with respect to any such rights or warrants to subscribe for or
purchase securities issued by the Corporation, other than Common Stock
or property of the Corporation, the fair market value thereof shall be
the fair market value of the rights or warrants actually exercised.
If any such rights or warrants shall expire without having been
exercised, the Conversion Ratio as theretofore adjusted because of the
issue of such rights or warrants shall forthwith be readjusted to the
Conversion Ratio which would have been in effect had an adjustment
been made on the basis that the only rights or warrants, so issued or
sold, were those rights or warrants actually exercised and that with
respect to any such rights or warrants to subscribe for or purchase
securities issued by the Corporation, other than Common Stock, or
property of the Corporation the fair market value thereof shall be the
fair market value of the rights or warrants actually exercised.
For the purpose of any computation under this Section 6(a), the
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current market price per share of Common Stock at any date shall be deemed to be
the average of the daily closing prices for the 15 consecutive business days
commencing 30 business days before the day in question. The closing price for
each day shall be the last reported sale price or, in the case no such reported
sale takes place on such day, the average of the reported closing bid and asked
prices, in either case on the Nasdaq National Market System, or, if the Common
Stock is not listed or admitted to trading on the Nasdaq National Market System,
the average of the closing bid and asked prices as furnished by any New York
Stock Exchange firm selected from time to time by the Corporation for the
purpose.
All calculations under this Section 6(a) shall be made to the nearest
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cent or to the nearest 1/100th of a share as the case may be.
(b) No adjustment of the Conversion Ratio shall be made as a
result of or in connection with the issuance of Common Stock pursuant to options
or stock purchase agreements now or hereafter granted or entered into with
directors, officers or employees of the Corporation or its subsidiaries in
connection with their employment, whether entered into at the beginning of the
employment or at any time thereafter.
(c) In case of:
(i) any capital reorganization of the Corporation, or
(ii) the consolidation or merger of the Corporation
with or into another corporation, or
(iii) a statutory share exchange whereby the
Corporation's Common Stock is converted into property other than cash,
or
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(iv) the sale, transfer or other disposition of all or
substantially all of the property, assets or business of the
Corporation as a result of which sale, transfer or other disposition
property other than cash shall be payable or distributable to the
holders of the Common Stock, then, in each such case, each share of
Series A Preferred Stock shall thereafter be convertible into the
number and class of shares or other securities or property of the
Corporation, or of the corporation resulting from such consolidation
or merger or with or to which such statutory share exchange, sale,
transfer or other disposition shall have been made, to which the
Common Stock otherwise issuable upon conversion of such shares of
Series A Preferred Stock would have been entitled upon such
reorganization, consolidation, merger, statutory share exchange, or
sale, transfer or other disposition if outstanding at the time
thereof; and in any such case appropriate adjustment, as determined by
the Board of Directors, shall be made in the application of the
provisions set forth in this Section 6 with respect to the conversion
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rights thereafter of the holders of the Series A Preferred Stock, to
the end that such provisions shall thereafter be applicable, as nearly
as reasonably may be, in relation to any shares or securities or other
property thereafter issuable or deliverable upon the conversion of
Series A Preferred Stock. Proper provision shall be made as a part of
the terms of any such reorganization, consolidation, merger, statutory
share exchange or sale, transfer or other disposition whereby the
conversion rights of the holders of Series A Preferred Stock shall be
protected and preserved in accordance with the provisions of this
Section 6(c). The provisions of this Section 6(c) shall similarly
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apply to successive capital reorganizations, consolidations, mergers,
statutory share exchanges, sales, transfers or other dispositions of
property as aforesaid.
(d) Whenever the Conversion Ratio shall be adjusted as herein
provided, the Corporation shall cause to be mailed by first class mail, postage
prepaid, as soon as practicable to each holder of record of shares of Series A
Preferred Stock a notice stating that the Conversion Ratio has been adjusted and
setting forth the adjusted Conversion Ratio, together with an explanation of the
calculation of the same.
(e) If the Corporation shall be party to, or shall have
announced or entered into an agreement for, any transaction (including, without
limitation, a merger, consolidation, statutory share exchange or sale of all or
substantially all of its assets (each of the foregoing, a "Transaction") in each
case as a result of which shares of Common Stock shall be converted into the
right to receive stock, securities or other property (including cash or any
combination thereof), the holder of shares of Series A Preferred Stock shall
have the right after such Transaction to convert such shares into the number and
kind of shares of stock or other securities and the amount and kind of property
receivable upon such Transaction by a holder of the number of shares of Common
Stock issuable upon conversion of such shares of Series A Preferred Stock
immediately prior to such Transaction. The Corporation shall not be party to any
Transaction unless the terms of such Transaction are consistent with the
provisions of this Section 6(e), and it shall not consent to or agree to the
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7.
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occurrence of any Transaction until the Corporation has entered into an
agreement with the successor or purchasing entity, as the case may be, for the
benefit of the holders of the Series A Preferred Stock, thereby enabling the
holders of Series A Preferred Stock to receive the benefits of this Section 6(e)
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and the other provisions of this Certificate of Designation. Without limiting
the generality of the foregoing, provision shall be made for adjustments in the
Conversion Ratio which shall be as nearly equivalent as may be practicable to
the adjustments provided for in Section 6(a). The provisions of this Section
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6(e) shall similarly apply to successive Transactions.
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(f) In the event that the Corporation shall propose to effect
any Transaction which would result in an adjustment under Section 6(e), the
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Corporation shall cause to be mailed to the holders of record of Series A
Preferred Stock at least 20 days prior to the applicable date hereinafter
specified a notice stating the date on which such Transaction is expected to
become effective, and the date as of which it is expected that holders of Common
Stock of record shall be entitled to exchange their shares of Common Stock for
securities or other property deliverable upon such Transaction. Failure to give
such notice, or any defect therein, shall not affect the legality or validity of
such Transaction.
7. Other.
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(a) The Corporation shall pay any taxes that may be payable in
respect of the issuance of shares of Common Stock upon conversion of shares of
Series A Preferred Stock, but the Corporation shall not be required to pay any
taxes which may be payable in respect of any transfer of shares of Series A
Preferred Stock or any transfer involved in the issuance of shares of Common
Stock in a name other than that in which the shares of Series A Preferred Stock
so converted are registered, and the Corporation shall not be required to
transfer any such shares of Series A Preferred Stock or to issue or deliver any
such shares of Common Stock unless and until the person(s) requesting such
transfer or issuance shall have paid to the Corporation the amount of any such
taxes, or shall have established to the satisfaction of the Corporation that
such taxes have been paid.
(b) The Corporation will not, by amendment of its Certificate of
Incorporation or through any reorganization, recapitalization, transfer of
assets, consolidation, merger, dissolution, issue or sale of securities or any
other voluntary action, avoid or seek to 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 carrying out of all the provisions of
this Certificate of Designations and in the taking of all such action as may be
necessary or appropriate to protect the conversion rights of the holders of the
Series A Preferred Stock against impairment.
(c) Holders of Series A Preferred Stock shall be entitled to
receive copies of all communications by the Corporation to its holders of Common
Stock, concurrently with the distribution to such stockholders.
8.
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(d) The Corporation warrants that all shares of Common Stock
issued upon conversion of shares of Series A Preferred Stock will upon issue be
fully paid and nonassessable by the Corporation and free from original issue
taxes.
8. Reacquired Shares. Shares of Series A Preferred Stock converted,
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redeemed or otherwise purchased or acquired by the Corporation shall be restored
to the status of authorized but unissued shares of preferred stock without
designation as to series.
9. Restrictions and Limitations.
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(a) The Corporation shall not, without the consent of the
holders of a majority of the outstanding shares of Series A Preferred Stock,
voting separately as a single class (i) amend or modify the Corporation's
Certificate of Incorporation or Bylaws so as to adversely affect the rights,
preferences, qualification, limitations or restrictions of the Series A
Preferred Stock; or (ii) amend this Section 9(a).
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(b) Except as otherwise expressly provided in this Section 9,
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any changes or amendments to the powers, preferences, and relative,
participating, optional or other special rights, or the qualifications,
limitations or restrictions thereof, with respect to the outstanding shares of
Series A Preferred Stock may be made in accordance with applicable law.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Designation of Preferences of the Series A Preferred Stock of the Corporation to
be signed by its duly authorized officer this 11th day of June, 1997.
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Li-San Hwang
President and Chief Executive Officer
9.
