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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
FORM 8-A/A
AMENDMENT No.1 TO
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
UNILAB CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 95-4415490
(State of Incorporation) (I.R.S. employer
identification number)
18448 Oxnard Street
Tarzana, California
(address of principal 91356
executive offices) (Zip code)
If this Form relates to the If this Form relates to the
registration of a class of debt registration of a class of debt
securities and is effective upon securities and is to become
filing pursuant to General effective simultaneously with
Instruction A(c)(1) please check the effectiveness of a
the following box. [ ] concurrent registration
statement under the Securities
Act of 1933 pursuant to General
Instruction A(c)(2) please
check the following box. [ ]
Securities to be registered pursuant to Section 12(b) of the
Act:
Title of each Class Name of each Exchange on which
to be so registered each Class is to be registered
- -------------------------------------- ---------------------------------
Common Stock, par value of $.01 American Stock Exchange
per share, and associated rights
to purchase shares of Series A
Junior Participating Preferred
Stock, par value of $.01 per
share.
Securities to be registered pursuant to Section 12(g) of the
Act:
None
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Item 1. Description of Registrant's Securities to be
Registered.
Common Stock
The securities being registered hereunder are the Registrant's
Common Stock ("Common Stock"), par value $.01 per share, and associated rights
("Rights") to purchase shares of Series A Junior Participating Preferred Stock
("Series A Preferred Stock"), par value $.01 per share, described below.
The Registrant's authorized capital stock consists of 100,000,000 shares
of Common Stock, 5,000,000 shares of Non-Voting Common Stock, par value $.01
per share ("Non-Voting Common Stock") and 20,000,000 shares of Preferred
Stock, par value $.01 per share ("Preferred Stock"). Of the 20,000,000 shares
of Preferred Stock authorized, 500,000 have been designated Non-Voting
Convertible Preferred Stock ("Non-Voting Convertible Preferred Stock") and
1,000,000 have been designated Series A Preferred Stock. The Non-Voting
Common Stock and the Common Stock are identical in all respects except that
the Non-Voting Common Stock are not entitled to vote except as otherwise
required by Delaware Law.
Preemptive Rights; Liquidation or Dissolution. The holders of
Common Stock do not have preemptive rights. Subject to the preferential
rights of the holders of Unilab Corporation's (the "Company" or "Unilab")
Non-Voting Convertible Preferred Stock, the Series A Preferred Stock, and any
other shares of the Company's preferred stock hereafter issued, all shares of
Common Stock rank equally on dissolution and are entitled to participate
equally in such dividends as may be declared by the Company's Board of
Directors out of funds legally available therefor.
Voting Rights. The holders of Common Stock are entitled to one
vote per share held of record on all matters upon which stockholders generally
have the right to vote. The Common Stock does not have cumulative voting
rights.
Dividends. Dividends on Common Stock may be declared by the
Company's Board of Directors from time to time out of any assets or funds
legally available therefor, after provision for the preferential dividend
rights of holders of Non-Voting Convertible Preferred Stock, Series A
Preferred Stock, and any other preferential dividend rights the Company's
Board of Directors may fix for any other series of preferred stock that may be
issued and outstanding. The Company's ability to declare dividends is subject
to certain restrictions contained in the Indenture, dated as of March 14,
1996, between the Company and Marine Midland Bank, as trustee.
Transfer Agent. Chase Mellon Shareholder Services (successor to
Chemical Mellon Shareholder Services) acts as Registrar and Transfer Agent for
the Common Stock.
Series A Preferred Stock Rights
On February 25, 1994, the Company's Board of Directors declared a
dividend of one right to purchase one one-hundredth of a share (a "Unit") of
Series A Preferred Stock, par value $.01 per share, and, under certain
circumstances, other securities, for each outstanding share of the Company's
Common Stock. On February 27, 1996, the Company's Board of Directors
authorized amending the terms of the rights, which are set forth in an Amended
and Restated Rights Agreement (the "Rights Agreement") between the Company and
Chase Mellon Shareholder Services (successor to Chemical Mellon Shareholder
Services), as Rights Agent.
The following description is intended to provide a general
description only and is qualified in its entirety by reference to the Rights
Agreement filed as Exhibit 4. A copy of the Rights Agreement is available
free of charge from the Company and the Rights Agent.
Each Common Stock certificate currently represents shares of
Common Stock and an equivalent number of Rights. Prior to the earlier of the
Distribution Date (as hereinafter defined) and the Expiration Date (as
hereinafter defined), one additional Right (as such number may be adjusted
pursuant to the provisions of the Rights Agreement) shall be deemed to be
delivered for each share of Common Stock issued or transferred by the Company.
Following the Distribution Date and prior to the expiration or redemption of
the Rights, the Company will issue one Right (as such number may be adjusted
pursuant to the provisions of the Rights Agreement) for each share of Common
Stock issued pursuant to the exercise of stock options or under employee plans
or arrangements granted or awarded on or prior to the Distribution Date, or
upon the exercise, conversion or exchange of securities issued by the Company
after the effective date of the Rights Agreement. In any other case after the
Distribution Date, the Company may issue Rights when it issues Common Stock if
the Board of Directors deems it to be necessary or appropriate but shall be
under no obligation to do so.
Common Stock Certificates Representing Rights Prior to
Distribution Date. Prior to the Distribution Date, the Rights will be
attached to all Common Stock certificates representing shares then outstanding
and will be transferred with and only with such Common Stock certificates. No
separate Rights certificates will be distributed. Until the earlier of the
Distribution Date or the Expiration Date, the surrender for transfer of any
certificates for Common Stock outstanding will also constitute the transfer of
the Rights associated with the Common Stock represented by such certificate.
New Common Stock certificates issued after the Record Date will contain a
legend incorporating the Rights Agreement by reference.
Distribution Date. The Rights will separate from the Common Stock
and a Distribution Date will occur (the "Distribution Date") upon the earlier
of (i) ten (10) days following the first date of a public announcement that a
person or group of affiliated or associated persons has acquired beneficial
ownership of 15% or more of the outstanding shares of Common Stock (an
"Acquiring Person") or such earlier date as a majority of the directors shall
become aware of the existence of an Acquiring Person (the "Stock Acquisition
Date") and (ii) ten (10) Business Days after the commencement of a tender
offer or exchange offer that would result in a person or group becoming an
Acquiring Person; or such later date as the Board of Directors of the Company
may determine in its sole discretion. As soon as practicable after the
Distribution Date, Rights certificates will be mailed to holders of record of
the Common Stock as of the close of business on the Distribution Date and,
thereafter, the separate Rights certificates alone will represent the Rights.
The Rights are not exercisable until the Distribution Date and
will expire at the close of business on March 15, 2004, unless earlier
redeemed or exchanged by the Company as described below (the "Expiration
Date").
Triggering Events. In the event (a "Flip-In Event") that a person
becomes an Acquiring Person, each holder of a Right will thereafter have the
right to receive, upon exercise of such Right, a number of shares of Common
Stock (or, in certain circumstances, cash, property or other securities of the
Company) having a current market price (as defined in the Rights Agreement)
equal to two times the exercise price of the Right. Notwithstanding the
foregoing, following the occurrence of any Flip-In Event, all Rights that are,
or (under certain circumstances specified in the Rights Agreement) were,
beneficially owned by any Acquiring Person (or by certain related parties)
will be null and void in the circumstances set forth in the Rights Agreement.
However, Rights are not exercisable following the occurrence of any Flip-In
Event until such time as the Rights are no longer redeemable by the Company as
set forth below.
For example, at an exercise price of $22.50 per Right, each Right
not owned by an Acquiring Person (or by certain related parties) following an
event set forth in the preceding paragraph would entitle its holder to
purchase $45.00 worth of Common Stock (or other consideration, as noted
above), based on its then current market price, for $22.50.
In the event (a "Flip-Over Event") that, at any time on or after
the Stock Acquisition Date, (i) the Company is acquired in a merger or other
business combination transaction, (ii) fifty percent (50%) or more of the
Company's assets or earning power is sold or transferred or (iii) a
reclassification or recapitalization of the Company occurs that has the effect
of increasing by more than one percent (1%) the proportionate ownership of the
Company's stock by the Acquiring Person, each holder of a Right (except Rights
that previously have been voided as set forth above) shall thereafter have the
right to receive, upon exercise, a number of shares of common stock of the
acquiring company having a current market price equal to two times the
exercise price of the Right. Flip-In Events and Flip-Over Events are
collectively referred to as "Triggering Events."
The Purchase Price payable, and the number of Units of Series A
Preferred Stock or other securities or property issuable, upon exercise of the
Rights are subject to adjustment from time to time to prevent dilution (i) in
the event of a stock dividend on, or a subdivision, combination or
reclassification of, the Series A Preferred Stock, (ii) if holders of the
Series A Preferred Stock are granted certain rights or warrants to subscribe
for Series A Preferred Stock or convertible securities at less than the
current market price of the Series A Preferred Stock or (iii) upon the
distribution to holders of the Series A Preferred Stock of evidences of
indebtedness or assets (excluding regular quarterly cash dividends) or of
subscription rights or warrants (other than those referred to above).
With certain exceptions, no adjustment in the Purchase Price will
be required until cumulative adjustments amount to at least one percent (1%)
of the Purchase Price. No fractional Units are required to be issued and, in
lieu thereof, an adjustment in cash may be made based on the market price of
the Series A Preferred Stock on the last trading date prior to the date of
exercise. Pursuant to the Rights Agreement, the Company reserves the right to
require prior to the occurrence of a Triggering Event that, upon any exercise
of Rights, a number of Rights be exercised so that only whole shares of Series
A Preferred Stock will be issued.
At any time after the occurrence of a Flip-In Event and prior to a
person's becoming the beneficial owner of 50% or more of the shares of Common
Stock then outstanding, the Company may exchange the Rights (other than Rights
owned by an Acquiring Person or an affiliate or an associate of an Acquiring
Person, which will have become void), in whole or in part, at an exchange
ratio of one share of Common Stock and/or other equity securities deemed to
have the same value as one share of Common Stock, per Right, subject to
adjustment.
Redemption of Rights. At any time until the earlier of March 15,
2004, and ten days following a Stock Acquisition Date, the Company may redeem
the Rights in whole, but not in part, at a price of $.01 per Right, payable at
the option of the Company, in cash, shares of Common Stock or such other
consideration as the Board of Directors may determine; provided, however, that
after any person has become an Acquiring Person, the Rights may only be
redeemed if (i) there are directors then in office that are not affiliates or
associates of any Acquiring Person and (ii) a majority of such directors
approve such redemption. Immediately upon the effectiveness of the action of
the Board of Directors ordering redemption of the Rights, the Rights will
terminate and the only right of the holders of Rights will be to receive the
$.01 redemption price.
Miscellaneous. 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. Stockholders may,
depending upon the circumstances, recognize taxable income in the event that
the Rights become exercisable for Common Stock (or other consideration) of the
Company or for the common stock of the acquiring company as set forth above or
are exchanged as provided in the preceding paragraph.
The provisions of the Rights Agreement may be amended by the Board
of Directors of the Company prior to the Distribution Date. Thereafter, the
provisions of the Rights Agreement may be amended by the Board of Directors in
order to cure any ambiguity, defect or inconsistency, or to make changes that
do not materially adversely affect the interests of holders of Rights
(excluding the interests of any Acquiring Person). After any person has
become an Acquiring Person, the Rights Agreement may be amended only with the
approval of a majority of the Directors not affiliated with the Acquiring
Person.
The Rights have certain anti-takeover effects. The Rights will
cause substantial dilution to any person or group that attempts to acquire the
Company without the approval of the Company's Board of Directors. As a
result, the overall effect of the Rights may be to render more difficult or
discourage any attempt to acquire the Company even if such acquisition may be
favorable to the interests of the Company's stockholders. Because the
Company's Board of Directors can redeem the Rights or approve a Permitted
Offer, the Rights should not interfere with a merger or other business
combination approved by the Board of Directors of the Company.
Item 2. Exhibits.
1 Specimen of certificate representing the common stock, par value
$.01 per share of the Registrant (incorporated herein by reference
to Exhibit 4.1 of the Registration Statement on Form S-4, as
amended (File No. 33-60360) (the "Form S-4 Registration
Statement"), filed on October 7, 1993).
2.1 Amended and Restated Certificate of Incorporation of the
Registrant (filed herewith), dated July 22, 1993.
2.2 Certificate of Amendment to the Amended and Restated Certificate
of Incorporation of the Registrant, dated November 10, 1993 (filed
herewith).
2.3 Certificate of Designations of Series A Junior Participating
Preferred Stock of the Registrant, dated February 25, 1994 (filed
herewith).
2.4 Certificate of Amendment of Certificate of Incorporation of the
Registrant, dated May 14, 1996 (filed herewith).
3 Second Amended and Restated By-Laws of the Registrant
(incorporated herein by reference to Current Report on Form 8-K
filed on March 19, 1996).
4 Amended and Restated Rights Agreement, dated as of March 15, 1996
between Unilab Corporation and Chemical Mellon Shareholder
Services as Rights Agent, which includes as Exhibit A the Form of
Certificate of Designations of Series A Junior Participating
Preferred Stock of Unilab Corporation setting forth the terms of
the Series A Preferred Stock, as Exhibit B the Form of Rights
Certificate and as Exhibit C the Summary of Rights to Purchase
Preferred Stock. Pursuant to the Rights Agreement, certificates
will not be mailed until after the Distribution Date (as defined
in the Rights Agreement)(incorporated herein by reference to
Exhibit 4.2 of the Company's Registration Statement on Form 8-A/A,
Amendment No. 1, (File No. 0-22758) dated March 18, 1996).
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.
Date: June 19, 1996 UNILAB CORPORATION
By: /s/ Mark L. Bibi
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Name: Mark L. Bibi
Title: Vice President,
Secretary and
General Counsel
AMENDED AND RESTATED
CERTIFICATION OF INCORPORATION
OF
METCAL INC.
UNDER SECTIONS 242 AND 245 OF THE GENERAL CORPORATION LAW
We, the undersigned, Andrew H. Baker and Mark L. Bibi, being
respectively the President and the Secretary of MetCal Inc., a corporation
organized and existing under the laws of the State of Delaware, do hereby
certify as follows:
1. The name of the Corporation is MetCal Inc.
2. The original Certificate of Incorporation was filed in the office
of the Secretary of State of the State of Delaware on January 6, 1993.
3. This Amended and Restated Certificate of Incorporation (i)
restates and integrates and amends the provision of the Certificate of
Incorporation filed on January 6, 1993, as stated herein in its entirety, and
(ii) was duly adopted in accordance with Section 245 of the General
Corporation Laws of the State of Delaware.
4. The text of the Amended and Restated Certificate of Incorporation,
as restated and integrated and as amended hereby, is restated to read as
herein set forth in full:
AMENDED
and
RESTATED
CERTIFICATE OF INCORPORATION
OF
METCAL INC.
(Under Sections 242 and 245 of the General Corporation Law of Delaware)
Section 1. The name of the corporation is MetCal Inc.
(Hereinafter referred to as the "Corporation").
Section 2. The address of the Corporation's registered office in
the State of Delaware is 1013 Centre Road, City of Wilmington, County of New
Castle, Delaware, 19805. Corporation Service Company is the Corporation's
registered agent at that address.
Section 3. The purpose of the Corporation is to engage in any
lawful act or activity for which a corporation may be organized under the
General Corporation Law of Delaware.
Section 4. The aggregate number of shares which the Corporation
shall have authority to issue is 125,000,000 shares, of which 100,000,000
shares shall be designated Common Stock, with a par value of $.01 per share;
5,000,000 shares shall be designated Non-Voting Common Stock, with par value
of $.01 per share; and 20,000,000 shares shall be designated Preferred Stock
with a par value of $.01 per share. No share shall be issued until it has
been paid for, and all shares, when and as issued, shall thereafter be
nonassessable.
The designations and the preferences, conversion and other rights,
voting powers, restrictions, limitations as to dividends, qualifications and
terms and conditions of redemption of the shares of each class of capital
stock are as follows:
Common Stock. Subject to all of the rights of the Preferred Stock
expressly provided herein, by law or by the Board of Directors pursuant to
this Section, the Common Stock of the Corporation shall possess all such
rights and privileges as are afforded to capital stock by applicable law in
the absence of any express grant of rights or privileges in this Amended and
Restated Certificate of Incorporation, including, but not limited to, the
following rights and privileges: (a) dividends may be declared and paid or
set apart for payment upon the Common Stock out of any assets or funds of the
Corporation legally available for the payment of dividends; (b) the holders of
Common Stock shall have the right to vote for the election of directors and on
all other matters requiring stockholder action, each share being entitled to
one vote; and (c) upon the voluntary or involuntary liquidation, dissolution
or winding-up of the Corporation, the net assets of the Corporation shall be
distributed pro rata to the holders of the Common Stock in accordance with
their respective rights and interests.
Non-Voting Common Stock. The rights and privileges of the
Non-Voting Common Stock shall be in all respects identical to the rights and
privileges of the Common Stock, except as otherwise required by law and except
that the holders of the Non-Voting Common Stock shall not have any right to
vote for the election of directors or on any other matter requiring stockholder
action, except as otherwise required by law.
Conversion of Non-Voting Common Stock By Holder.
(a) The holder of each share of Non-Voting Common Stock shall
have the right at any time, or from time to time, at such holder's option, to
convert such share into one fully paid and nonassessable share of Common
Stock, on and subject to the terms and conditions hereinafter set forth;
provided, however, that 1,000,000 shares of Non-Voting Common Stock issued to
Paribas Sante International, B.V. ("Paribas"), pursuant to a Subscription
Agreement, dated December 21, 1990, shall not be convertible into shares of
Common Stock so long as such shares are beneficially owned by Paribas or any
of its affiliates or any other person (a "Restricted Person") to the extent
that such person would be precluded by applicable United States federal or
state law from owning Common Stock or securities convertible into Common
Stock, but all or some of such shares may be converted into Common Stock on a
share for share basis upon the transfer by Paribas of such shares to any
person not an affiliate of Paribas or not a Restricted Person, at such
holder's option.
(b) In order to exercise its conversion privilege, the holder of
any shares of Non- Voting Common Stock to be converted shall present and
surrender the certificate or certificates representing such shares during
usual business hours at any office or agency of the Corporation maintained for
the transfer of Non-Voting Common Stock and shall deliver a written notice of
the election of the holder to convert the shares represented by such
certificate or any portion thereof specified in such notice. Such notice
shall also state the name or names (with address) in which the certificate or
certificates for shares of Common Stock which shall be issuable on such
conversion shall be issued. If so required by the Corporation, any
certificate for shares surrendered for conversion shall be accompanied by
instruments of transfer, in form satisfactory to the Corporation, duly
executed by the holder of such shares or its duly authorized representative.
Each conversion of shares of Non-Voting Common Stock shall be deemed to have
been effected on the date (the "Conversion Date") on which the certificate or
certificates representing such shares shall have been surrendered and such
notice and any required instruments of transfer shall have been received as
aforesaid, and the person or persons in whose name or names any certificate or
certificates for shares of Common Stock shall be issuable on such conversion
shall be, for the purpose of receiving dividends and for all other corporate
purposes whatsoever, deemed to have become the holder or holders of record of
the shares of Common Stock represented thereby on the Conversion Date.
(c) As promptly as practicable after the presentation and
surrender for conversion, as herein provided, of any certificate for shares of
Non-Voting Common Stock, the Corporation shall issue and deliver at such
office or agency, to or upon the written order of the holder thereof,
certificates for the number of shares of Common Stock issuable upon such
conversion. In case any certificate for shares of Non-Voting Common Stock
shall be surrendered for conversion of a part only of the shares represented
thereby, the Corporation shall deliver at such office or agency, to or upon
the written order of the holder thereof, a certificate or certificates for the
number of shares of Non-Voting Common Stock represented by such surrendered
certificate, which are not being converted. The issuance of certificates for
shares of Common Stock issuable upon the conversion of shares of Non-Voting
Common Stock by the registered holder thereof shall be made without charge to
the converting holder of any tax imposed of the Corporation in respect of the
issue thereof. The Corporation shall not, however, be required to pay any tax
which may be payable with respect to any transfer involved in the issue and
delivery any such certificate unless and until the person requesting the
issuance thereof shall have paid to the Corporation the amount of such tax or
has established to the satisfaction of the Corporation that such tax has been
paid.
(d) In case of any consolidation or merger of the Corporation as
a result of which the holders of Common Stock shall be entitled to receive
cash, stock, other securities or other property with respect to or in exchange
for Common Stock or in case of any sale or conveyance of all or substantially
all of the property or business of the Corporation as an entirety, a holder of
a share of Non-Voting Common Stock shall have the right thereafter, so long as
the conversion right hereunder shall exist, to convert such share into the
kind and amount of cash, shares of stock and other securities and properties
receivable upon such consolidation, merger, sale or conveyance by a holder of
one share of Common Stock and shall have no other conversion rights with
regard to such shares. The provisions of this paragraph (d) shall similarly
apply to successive consolidations, mergers, sale or conveyances.
(e) Shares of the Non-Voting Common Stock converted into Common
Stock as provided in this Section 4 shall resume the status of authorized but
unissued shares of Non-Voting Common Stock.
(f) Such number of shares of Common Stock as may from time to
time be required for such purpose shall be reserved for issuance upon
conversion of outstanding shares of Non-Voting Common Stock.
Preferred Stock. The Preferred Stock may be issued from time to
time by the Board of Directors as shares of one or more series. The
description of shares of each series of Preferred Stock, including any
preferences, conversion and other rights, voting powers, restrictions,
limitations as to dividends, qualifications, and terms and conditions of
redemption shall be set forth in resolutions adopted by the Board of Directors
and in a Certificate of Designations filed as required by law from time to
time prior to the issuance of any share of such series.
The Board of Directors is expressly authorized, prior to issuance,
by adopting resolutions providing for the issuance of, or providing for a
change in the number of, shares of any particular series of Preferred Stock
and, if and to the extent from time to time required by law, by filing a
Certificate of Designations to set or change the number of shares to be
included in each series of Preferred Stock and to set or change in any one or
more respects the voting powers, designations, preferences, and relative,
participating, optional or other rights, if any, or the qualifications,
limitations or restrictions relating to the shares of each such series.
Notwithstanding the foregoing, the Board of Directors shall not be authorized
to change the right of the Common Stock of the Corporation to vote one vote
per share on all matters submitted for stockholder action or to grant voting
rights to the Non-Voting Common Stock on matters submitted for stockholder
action. The authority of the Board of Directors with respect to each series
of Preferred Stock shall include, but not be limited to, setting or changing
the following:
(a) the distinctive serial designation of such series and number
of shares constituting such series (provided that the
aggregate number of shares constituting all series of
Preferred Stock shall not exceed 20,000,000);
(b) the annual dividend rate on shares of such series, whether
dividends shall be cumulative and, if so, from which date or
dates;
(c) whether the shares of such series shall be redeemable and,
if so, the rights and conditions of such redemption,
including the date or dates upon and after which such shares
shall be redeemable, and the amount per share payable in
case of redemption, which amount may vary under different
conditions and at different redemption dates;
(d) the obligation, if any, of the Corporation to redeem or
repurchase shares of such series pursuant to a sinking fund;
(e) whether shares of such series shall be convertible into, or
exchangeable for, shares of stock of any other class or
classes and, if so, the terms and conditions of such
conversion or exchange, including the price or prices or the
rate or rates of conversion or exchange and the terms of
adjustment, if any;
(f) whether the shares of such series shall have voting rights,
in addition to the voting rights provided by law, and, if
so, the terms of such voting rights;
(g) the rights of the shares of such series in the event of
voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation; and
(h) any other relative rights, powers, preferences,
qualifications, limitations or restrictions thereof relating
to such series which may be authorized under the General
Corporation Law of Delaware.
The shares of Preferred Stock of any one series shall be identical
with each other in all respects except as to the dates from and after which
dividends thereon shall accumulate, if such dividends are cumulative. A
merger or consolidation of Corporation with or into any other corporation, a
share exchange involving the Corporation, or a sale, lease, exchange or
transfer of all or any part of the assets of the Corporation shall not result
in the liquidation of the Corporation, and the distribution of its assets to
its stockholders shall not be deemed to be a voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation for purposes of this
Section.
Section 5. The election of directors of the Corporation need not
be by written ballot, unless the By-laws of the Corporation otherwise provide.
Section 6. The Board of Directors shall have the power to make,
alter, or repeal the By-laws of the Corporation, subject to the right of the
stockholders of the Corporation to alter or repeal any provision of the
By-laws made by the Board of Directors.
Section 7. The stockholders of the Corporation shall not be
entitled to preemptive rights to purchase, subscribe for, or otherwise acquire
any unissued or treasury shares of capital stock of the Corporation, or any
options or warrants to purchase shares, or any shares, bonds, notes,
debentures or other securities convertible into or carrying options or
warrants to purchase, subscribe for or otherwise acquire any such unissued or
treasury shares.
Section 8. The stockholders shall not be entitled to cumulative
voting.
Section 9. A majority of the share entitled to vote, represented
in person or by proxy, shall constitute a quorum at a meeting of stockholders.
except as otherwise provided by this Amended and Restated Certificate of
Incorporation, if a quorum is present, the affirmative vote of a majority of
the shares represented in person or by proxy at the meeting and entitled to
vote on the subject matter shall be the act of the stockholders.
Section 10. Any action which may be taken at any annual or
special meeting of stockholders may be taken without a meeting, without prior
notice and without a vote, if a consent or consents in writing, setting forth
the action so taken, shall be signed, in person or by proxy, by the holders of
all the outstanding shares of stock entitled to vote thereon and shall be
delivered to the Corporation in accordance with the laws of the State of
Delaware. Every written consent shall bear the date of signature of each
stockholder signing the consent. In no event shall any corporate action
referred to in any consent be effective unless written consents signed by all
stockholders are duly delivered to the Corporation within sixty (60) days of
the earliest dated consent delivered in accordance with the laws of the State
of Delaware.
Section 11. The Corporation shall, to the fullest extent
permitted by the provisions of the General Corporation Law of Delaware, as now
or hereafter in effect, indemnify all persons whom it my indemnify under such
provisions. The indemnifications provided by this Section shall not limit or
exclude any rights, indemnities or limitations of liability to which any
person may be entitled whether as a matter of law, under the By-laws of the
Corporation, by agreement, vote of the stockholders or disinterested directors
of the Corporation or otherwise.
Section 12. The personal liability of the directors of the
Corporation is hereby eliminated to the fullest extend permitted by paragraph
(7) of Subsection (b) of Section 102 of the General Corporation Law of
Delaware, as the same may be amended and supplemented.
Section 13. The Corporation shall have authority, to the fullest
extent now or hereafter permitted by the General Corporation Law of the State
of Delaware, or by any other applicable law, to enter into any contract or
transaction with one or more of its directors of officers, or with any
corporation, partnership, association or other organization in which one or
more of its directors or officers are directors or officers, or have a
financial interest, notwithstanding the fact that his or their votes are
counted for such purposes. Both common and interested directors may be
counted in determining the presence of a quorum at a meeting of the board of
directors or of a committee which authorizes the contract or transaction.
Section 14. The Corporation shall not be governed by Section 203
of the General Corporation Law of Delaware.
Section 15. The foregoing has been duly adopted in accordance
with the provisions of Sections 242 and 245 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this certificate to
be executed by Andrew H. Baker, its President, and attested by Mark L. Bibi,
its Secretary, this 22 day of July. 1993.
By: /s/ Andrew H. Baker
Name: Andrew H. Baker
Title:President
Attest
by: /s/ Mark L. Bibi
Name: Mark L. Bibi
Title:Secretary
CERTIFICATE OF AMENDMENT
TO THE
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
METCAL INC.
(Under Section 242 of the General Corporation Law of the State of Delaware)
MetCal Inc., a corporation organized and existing under the laws
of the State of Delaware (the "Corporation"), hereby certifies as follows:
FIRST: The original Certificate of Incorporation of the
Corporation was filed in the office of the Secretary of State of the State of
Delaware on January 6, 1993. The Amended and Restated Certificate of
Incorporation (as amended and restated, the "Certificate of Incorporation")
of the Corporation was filed in the office of the Secretary of State of the
State of Delaware on July 23, 1993.
SECOND: Section 1 of the Certificate of Incorporation of the
Corporation is hereby amended by deleting such section in its entirety and
substituting the following in lieu thereof:
"Section 1. The name of the corporation is Unilab Corporation
(hereinafter referred to as the "Corporation")."
THIRD: The foregoing amendment to the Certificate of
Incorporation has been duly adopted in accordance with the provisions of
Section 228 and Section 242 of the General Corporation Law of the State of
Delaware (the "DGCL").
FOURTH: Pursuant to the provisions of Section 103(d) of the DGCL,
the amendment to the Certificate of Incorporation evidenced by this
Certificate of Amendment shall become effective upon the filing of this
Certificate of Amendment in the office of the Secretary of State of the State
of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this certificate to
be executed by Andrew H. Baker, its President, and attested to by its
Secretary, Mark L. Bibi, this 10th day of November, 1993.
By: /s/ Andrew H. Baker
Name: Andrew H. Baker
Title:President
ATTEST:
/s/ Mark L. Bibi
Name: Mark L. Bibi
Title:Secretary
CERTIFICATE OF DESIGNATIONS
of
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
of
UNILAB CORPORATION
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
UNILAB CORPORATION, a corporation organized and existing under the
General Corporation Law of the State of Delaware, in accordance with the
provisions of Section 103 thereof, DOES HEREBY CERTIFY:
That pursuant to the authority vested in the Board of Directors in
accordance with the provisions of the Amended and Restated Certificate of
Incorporation of the Corporation, the Board of Directors on February 25, 1994,
adopted the following resolution creating a series of 1,000,000 (one million)
shares of Preferred Stock designated as "Series A Junior Participating
Preferred Stock":
RESOLVED, that pursuant to the authority vested in the Board of
Directors of this Corporation in accordance with the provisions of the
Amended and Restated Certificate of Incorporation, a series of Preferred
Stock, par value $.01 per share, of the Corporation be and hereby is
created, and that the designation and number of shares thereof and the
voting and other powers, preferences and relative, participating,
optional or other rights of the shares of such series and the
qualifications, limitations and restrictions thereof are as follows:
Series A Junior Participating Preferred Stock
1. Designation and Amount. There shall be a series of Preferred
Stock that shall be designated as "Series A Junior Participating Preferred
Stock," and the number of shares constituting such series shall be 1,000,000.
Such number of shares may be increased or decreased by resolution of the Board
of Directors; provided, however, that no decrease shall reduce the number of
shares of Series A Junior Participating Preferred Stock to less than the
number of shares then issued and outstanding plus the number of shares
issuable upon exercise of outstanding rights, options or warrants or upon
conversion of outstanding securities issued by the Corporation.
2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders of
any shares of any series of Preferred Stock ranking prior and superior to the
shares of Series A Junior Participating Preferred Stock with respect to
dividends, the holders of shares of Series A Junior Participating Preferred
Stock, in preference to the holders of shares of any class or series of stock
of the Corporation ranking junior to the 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, quarterly dividends payable in cash
on the 15th day of January, April, July and October in each year (each such
date being referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date after the first
issuance of a share or fraction of a share of Series A Junior Participating
Preferred Stock, in an amount per share (rounded to the nearest cent) equal to
the greater of (a) $0.25 or (b) the Adjustment Number (as defined below) times
the aggregate per share amount of all cash dividends, and the Adjustment
Number times the aggregate per share amount (payable in kind) of all non-cash
dividends or other distributions other than a dividend payable in shares of
Common Stock or a subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the Common Stock, par value $.01
per share, of the Corporation (the "Common Stock") since the immediately
preceding Quarterly Dividend Payment Date, or, with respect to the first
Quarterly Dividend Payment Date, since the first issuance of any share or
fraction of a share of Series A Junior Participating Preferred Stock. The
"Adjustment Number" shall initially be 100. In the event the Corporation
shall at any time after February 25, 1994 (the "Rights Declaration Date") (i)
declare any dividend on Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock or (iii) combine the outstanding Common
Stock into a smaller number of shares, then in each such case the Adjustment
Number in effect immediately prior to such event shall be adjusted by
multiplying such Adjustment Number by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on
the Series A Junior Participating Preferred Stock as provided in paragraph (A)
above immediately after it declares a dividend or distribution on the Common
Stock (other than a dividend payable in shares of Common Stock); provided
that, in the event no dividend or distribution shall have been declared on the
Common Stock during the period between any Quarterly Dividend Payment Date and
the next subsequent Quarterly Dividend Payment Date, a dividend of $0.25 per
share on the Series A Junior Participating Preferred Stock shall nevertheless
be payable on such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Junior Participating Preferred Stock from the
Quarterly Dividend Payment Date next preceding the date of issue of such
shares of Series A Junior Participating Preferred Stock, unless the date of
issue of such shares is prior to the record date for the first Quarterly
Dividend Payment Date, in which case dividends on such shares shall begin to
accrue from the date of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the record date for the
determination of holders of shares of Series A Junior Participating Preferred
Stock entitled to receive a quarterly dividend and before such Quarterly
Dividend Payment Date, in either of which events such dividends shall begin to
accrue and be cumulative from such Quarterly Dividend Payment Date. Accrued
but unpaid dividends shall not bear interest. Dividends paid on the shares of
Series A Junior Participating Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such shares shall
be allocated pro rata on a share-by-share basis among all such shares at the
time outstanding. The Board of Directors may fix a record date for the
determination of holders of shares of Series A Junior Participating Preferred
Stock entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be no more than 30 days prior to the date
fixed for the payment thereof.
3. Voting Rights. The holders of shares of Series A Junior
Participating Preferred Stock shall have the following voting rights:
(A) Each share of Series A Junior Participating Preferred Stock
shall entitle the holder thereof to a number of votes equal to the Adjustment
Number on all matters submitted to a vote of the stockholders of the
Corporation.
(B) Except as otherwise provided herein or by law, the holders of
shares of Series A Junior Participating 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 Corporation.
(C) (i) If at any time dividends on any Series A Junior
Participating Preferred Stock shall be in arrears in an amount equal to six
quarterly dividends thereon, the occurrence of such contingency shall mark the
beginning of a period (herein called a "default period") that shall extend
until such time when all accrued and unpaid dividends for all previous
quarterly dividend periods and for the current quarterly dividend period on
all shares of Series A Junior Participating Preferred Stock then outstanding
shall have been declared and paid or set apart for payment. During each
default period, all holders of Preferred Stock (including holders of the
Series A Junior Participating Preferred Stock) upon which these or like voting
rights have been conferred and are exercisable (the "Voting Preferred Stock")
with dividends in arrears in an amount equal to six quarterly dividends
thereon, voting as a class, irrespective of series, shall have the right to
elect two Directors.
(ii) During any default period, such voting right of the
holders of Series A Junior Participating Preferred Stock may be exercised
initially at a special meeting called pursuant to subparagraph (iii) of this
Section 3(C) or at any annual meeting of stockholders, and thereafter at
annual meetings of stockholders, provided that neither such voting right nor
the right of the holders of any other series of Voting Preferred Stock, if
any, to increase, in certain cases, the authorized number of Directors shall
be exercised unless holders of ten percent in number of shares of Voting
Preferred Stock outstanding shall be present in person or by proxy. The
absence of a quorum of the holders of Common Stock or any other class of stock
shall not affect the exercise by the holders of Voting Preferred Stock of such
voting right. At any meeting at which the holders of Voting Preferred Stock
shall exercise such voting right initially during an existing default period,
they shall have the right, voting as a class, to elect Directors to fill such
vacancies, if any, in the Board of Directors as may then exist up to two
Directors or, if such right is exercised at an annual meeting, to elect two
Directors. If the number that may be so elected at any special meeting does
not amount to the required number, the holders of the Voting Preferred Stock
shall have the right to make such increase in the number of Directors as shall
be necessary to permit the election by them of the required number. After the
holders of the Voting Preferred Stock shall have exercised their right to
elect Directors in any default period and during the continuance of such
period, the number of Directors shall not be increased or decreased except by
vote of the holders of Voting Preferred Stock as herein provided or pursuant
to the rights of any equity securities ranking senior to or pari passu with
the Series A Junior Participating Preferred Stock.
(iii) Unless the holders of Voting Preferred Stock shall,
during an existing default period, have previously exercised their right to
elect Directors, the Board of Directors may order the calling of a special
meeting of the holders of Voting Preferred Stock, which meeting shall
thereupon be called by the Chairman of the Board, the President, a Vice
President or the Secretary of the Corporation. Notice of such meeting and of
any annual meeting at which holders of Voting Preferred Stock are entitled to
vote pursuant to this paragraph (C) (iii) shall be given to each holder of
record of Voting Preferred Stock by mailing a copy of such notice to him at
his last address as the same appears on the books of the Corporation. Such
meeting shall be called for a time not earlier than 20 days and not later than
60 days after such order or request or, in default of the calling of such
meeting within 60 days after such order or request, such meeting may be called
on similar notice by any stockholder or stockholders owning in the aggregate
not less than ten percent of the total number of shares of Voting Preferred
Stock outstanding. Notwithstanding the provisions of this paragraph (C)
(iii), no such special meeting shall be called during the period within 60
days immediately preceding the date fixed for the next annual meeting of the
stockholders.
(iv) In any default period, the holders of Common Stock,
and other classes of stock of the Corporation if applicable, shall continue to
be entitled to elect the whole number of Directors until the holders of Voting
Preferred Stock shall have exercised their right to elect two Directors voting
as a class, after the exercise of which right (x) the Directors so elected by
the holders of Voting Preferred Stock shall continue in office until their
successors shall have been elected by such holders or until the expiration of
the default period, and (y) any vacancy in the Board of Directors may (except
as provided in paragraph (C) (ii) of this Section 3) be filled by vote of a
majority of the remaining Directors theretofore elected by the holders of the
class of stock which elected the Director whose office shall have become
vacant. References in this paragraph (C) to Directors elected by the holders
of a particular class of stock shall include Directors elected by such
Directors to fill vacancies as provided in clause (y) of the foregoing
sentence.
(v) Immediately upon the expiration of a default period,
(x) the right of the holders of Voting Preferred Stock as a class to elect
Directors shall cease, (y) the term of any Directors elected by the holders of
Voting Preferred Stock as a class shall terminate and (z) the number of
Directors shall be such number as may be provided for in the Amended and
Restated Certificate of Incorporation or By-Laws irrespective of any increase
made pursuant to the provisions of paragraph (C) (ii) of this Section 3 (such
number being subject, however, to change thereafter in any manner provided by
law or in the Amended and Restated Certificate of Incorporation or By-Laws).
Any vacancies in the Board of Directors effected by the provisions of clauses
(y) and (z) in the preceding sentence may be filled by a majority of the
remaining Directors.
(D) Except as set forth herein, holders of Series A Junior
Participating 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 the holders of Common Stock and Nonvoting Common Stock as set forth
herein) for taking any corporation action.
4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Junior Participating Preferred Stock as
provided in Section 2 are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not declared, on shares of
Series A Junior Participating Preferred Stock outstanding shall have been paid
in full, the Corporation shall not
(i) declare or pay dividends on, make any other
distributions on, 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 Junior
Participating Preferred Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series A Junior Participating Preferred Stock, except dividends paid
ratably on the Series A Junior Participating 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 entitled;
(iii) 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 Junior Participating Preferred Stock, provided that the
Corporation may at any time redeem, purchase or otherwise acquire shares
of any such parity stock in exchange for shares of any stock of the
Corporation ranking junior (both as to dividends and upon dissolution,
liquidation or winding up) to the Series A Junior Participating
Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any
shares of Series A Junior Participating Preferred Stock, or any shares
of stock ranking on a parity with the Series A Junior Participating
Preferred Stock, except in accordance with a purchase offer made in
writing or by publication (as determined by the Board of Directors) to
all holders of such shares upon such terms as the Board of Directors,
after consideration of the respective annual dividend rates and other
relative rights and preferences of the respective series and classes,
shall determine in good faith will result in fair and equitable treatment
among the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares of
stock of the Corporation unless the Corporation could, under paragraph (A) of
this Section 4, purchase or otherwise acquire such shares at such time and in
such manner.
5. Reacquired Shares. Any shares of Series A Junior Participating
Preferred Stock purchased or otherwise acquired by the Corporation in any
manner whatsoever shall be retired and cancelled promptly after the
acquisition thereof. All such shares shall upon their cancellation become
authorized but unissued shares of Preferred Stock and may be reissued as part
of a new series of Preferred Stock to be created by resolution or resolutions
of the Board of Directors, subject to any conditions and restrictions on
issuance set forth herein.
6. Liquidation, Dissolution or Winding Up. (A) Upon any liquidation
(voluntary or otherwise), dissolution or winding up of the Corporation, no
distribution shall be made to the holders of shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution or winding up) to the
Series A Junior Participating Preferred Stock, unless, prior thereto, the
holders of shares of Series A Junior Participating Preferred Stock shall have
received $100.00 per share, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of
such payment (the "Series A Liquidation Preference"). Following the payment
of the full amount of the Series A Liquidation Preference, no additional
distributions shall be made to the holders of shares of Series A Junior
Participating Preferred Stock unless, prior thereto, the holders of shares of
Common Stock shall have received an amount per share (the "Common Adjustment")
equal to the quotient obtained by dividing (i) the Series A Liquidation
Preference by (ii) the Adjustment Number. Following the payment of the full
amount of the Series A Liquidation Preference and the Common Adjustment in
respect of all outstanding shares of Series A Junior Participating Preferred
Stock and Common Stock, respectively, holders of Series A Junior Participating
Preferred Stock and holders of shares of Common Stock shall receive their
ratable and proportionate share of the remaining assets to be distributed in
the ratio of the Adjustment Number to 1 with respect to such Preferred Stock
and Common Stock, on a per share basis, respectively.
(B) In the event, however, that there are not sufficient assets
available to permit payment in full of the Series A Liquidation Preference and
the liquidation preferences of all other series of Preferred Stock, if any,
that rank on a parity with the Series A Junior Participating Preferred Stock,
then such remaining assets shall be distributed ratably to the holders of such
parity shares in proportion to their respective liquidation preferences. In
the event, however, that there are not sufficient assets available to permit
payment in full of the Common Adjustment, then such remaining asset shall be
distributed ratably to the holders of Common Stock on a per share basis.
7. Consolidation, Merger, etc. In case the Corporation shall enter
into any consolidation, merger, combination or other transaction in which the
shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case the shares
of Series A Junior Participating Preferred Stock shall at the same time be
similarly exchanged or changed in an amount per share equal to the Adjustment
Number times the aggregate amount of stock, securities, cash and/or any other
property (payable in kind), as the case may be, into which or for which each
share of Common Stock is changed or exchanged.
8. No Redemption. The shares of Series A Junior Participating
Preferred Stock shall not be redeemable.
9. Ranking. The Series A Junior Participating Preferred Stock shall
rank junior to all other series of the Corporation's Preferred Stock as to the
payment of dividends and the distribution of assets, unless the terms of any
such series shall provide otherwise.
10. Amendment. At any time that any shares of Series A Junior
Participating Preferred Stock are outstanding, the Certificate of
Incorporation of the Corporation shall not be amended in any manner which
would materially alter or change the powers, preferences or special rights of
the Series A Junior Participating Preferred Stock so as to affect them
adversely without the affirmative vote of the holders of a majority or more of
the outstanding shares of Series A Junior Participating Preferred Stock,
voting separately as a class.
11. Fractional Shares. Series A Junior Participating Preferred Stock
may be issued in fractions of a share that shall entitle the holder, in
proportion to such holder's fractional shares, to exercise voting rights,
receive dividends, participate in distributions and to have the benefit of all
other rights of holders of Series A Junior Participating Preferred Stock.
IN WITNESS WHEREOF, the undersigned have executed and subscribed this
Certificate and do affirm the foregoing as true under the penalties of perjury
this 25th day of February, 1994.
/s/ Richard A. Michaelson
Vice President
Attest:
/s/ Mark L. Bibi
Secretary
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
UNILAB CORPORATION
(Pursuant to Section 242 of the General
Corporation Law of the State of Delaware)
Unilab Corporation, a corporation organized and existing under the
laws of the State of Delaware (the "Corporation"), hereby certifies as follows:
FIRST. Section 4 of the Certificate of Incorporation of the
Corporation is hereby amended by deleting the provision from Clause (a) of the
sub-section entitled "Conversion of Non-Voting Common Stock by Holder" of the
section entitled "Non-Voting Common Stock", such that Clause (a) reads in its
entirety as follows:
"(a) The holder of each share of Non-Voting Common Stock shall have
the right at any time, or from time to time, at such holder's option, to
convert such share into one fully paid and non-assessable share of Common
Stock, on and subject to the terms and conditions hereinafter set forth";
SECOND. The foregoing amendment has been duly adopted in
accordance with the provisions of Section 242 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this certificate to
be executed by Richard A. Michaelson, its Senior Vice President, and attested
by Mark L. Bibi, its Secretary, this 14th day of May, 1996.
By: /s/ Richard A. Michaelson
Name: Richard A. Michaelson
Title:Senior Vice President
Attest:
By: /s/ Mark L. Bibi
Name: Mark L. Bibi
Title: Secretary
