SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
-----------
FORM 8-A/A
Amendment No. 2
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) or 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
BROOKS FIBER PROPERTIES, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware
- --------------------------------------------------------------------------------
(State of Incorporation or Organization)
43-1656187
- --------------------------------------------------------------------------------
(I.R.S. Employer Identification No.)
425 Woods Mill Road South, Suite 300, Town & Country, Missouri 63017
- --------------------------------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
If this Form relates to the registration of a class of debt securities and
is effective upon filing pursuant to General Instruction A(c)(1) please check
the following box. [ ]
If this Form relates to the registration of a class of debt securities and
is to become effective simultaneously with the effectiveness of a 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
- ------------------- ------------------------------
None None
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, $0.01 Par Value
- --------------------------------------------------------------------------------
(Title of class)
Preferred Stock Purchase Rights
- --------------------------------------------------------------------------------
(Title of class)
<PAGE>
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
The Registrant is incorporated under the laws of the State of Delaware.
Accordingly, the rights of holders of the Registrant's Common Stock, par value
$.01 per share (the "Common Stock"), Preferred Stock, warrants and options are
governed by the General Corporation Law of the State of Delaware (the "DGCL")
and by the Registrant's Second Restated Certificate of Incorporation and
By-Laws. The following summary of such rights is qualified in its entirety by
reference to the DGCL and to the Second Restated Certificate of Incorporation
and By-laws of the Registrant.
Authorized Stock
The Registrant is authorized to issue 150,000,000 shares of Common Stock
and 1,040,012 shares of Preferred Stock, par value $0.01 per share ("Preferred
Stock"). Of the Preferred Stock, 50,000 shares are designated Series A Junior
Participating Preferred Stock, and the remainder of the Preferred Stock has the
status of authorized and unissued shares of Preferred Stock subject to issuance
from time to time as new series of Preferred Stock created by resolution of the
Board of Directors. The shares of Series A Junior Participating Preferred Stock
are issuable upon exercise of the Preferred Stock Purchase Rights issued under
the Registrant's Stockholders Protection Rights Plan (see "--Preferred Stock
Purchase Rights" below.)
Redemption
There are no redemption or sinking fund provisions applicable to the Common
Stock.
Liquidation
Upon liquidation, dissolution or winding up of the Registrant, the holders
of Common Stock are entitled to receive pro rata the assets of the Registrant
which are legally available for distribution, after payment of all debts and
other liabilities and subject to the prior rights of holders of any Preferred
Stock then outstanding.
No Cumulative Voting
There is no cumulative voting. Therefore, the holders of a majority of the
shares of Common Stock voted in an election of directors will be able to elect
all of the directors then standing for election, subject to any rights of the
holders of any outstanding Preferred Stock.
Dividend Policy
The Registrant has never declared or paid cash dividends on its capital
stock. The Registrant currently intends to retain all future earnings, if any,
to support its growth strategy and does not anticipate paying cash dividends in
the foreseeable future.
Stockholder Action Without a Meeting and Power to Call Special Meetings
Under the DGCL, any corporate action which may be taken at any annual or
special meeting of stockholders may be taken without a meeting by the written
consent of not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting if a meeting were held to approve
such action. The DGCL further provides that prompt notice of any action taken
without a meeting must be given to all stockholders who have not consented. The
Registrant's By-laws provide that special meetings of the Registrant's
stockholders may be called by any two members of the Board of Directors or by
the Chairman of the Board.
<PAGE>
Board of Directors
The number of directors which constitutes the entire Board of Directors of
the Registrant is twelve (12). The Registrant's Second Restated Certificate of
Incorporation provides for three classes of directors having staggered terms of
office with each director elected to serve a three year term.
Limitation on Personal Liability of Directors
Delaware law authorizes a Delaware corporation to eliminate or limit the
personal liability of a director to a corporation and its stockholders for
monetary damages for breach of certain fiduciary duties as a director. The
Registrant believes that such a provision is beneficial in attracting and
retaining qualified directors, and, accordingly, the Registrant's Second
Restated Certificate of Incorporation includes a provision eliminating liability
for monetary damages for any breach of fiduciary duty as a director, except: (1)
for any breach of loyalty to the Registrant or its stockholders; (2) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law; (3) for any transaction from which the director derives an
improper personal benefit; and (4) for unlawful payments of dividends or
unlawful stock repurchases or redemptions as provided in Section 174 of the
DGCL. Thus, pursuant to Delaware law, directors of the Registrant are not
insulated from liability for breach of their duty of loyalty (requiring that, in
making a business decision, directors act in good faith and in the honest belief
that the action is taken in the best interests of the Registrant) or for claims
arising under the federal securities laws. The foregoing provisions of the
Registrant's Second Restated Certificate of Incorporation may reduce the
likelihood of derivative litigation against directors and may discourage or
deter stockholders or management from bringing a lawsuit against directors for
breaches of their fiduciary duties, even though such an action, if successful,
might otherwise have benefitted the Registrant and its stockholders. Further,
the Registrant's Second Restated Certificate of Incorporation contains
provisions for the indemnification of and advancing of expenses to directors and
officers to the full extent permitted by law. The Registrant has insurance with
a policy limit of $10 million for the benefit of its officers and directors
insuring such persons against certain liabilities, including certain liabilities
under the securities laws.
Vote Required for Amendments
The Registrant's Second Restated Certificate of Incorporation requires the
affirmative vote of the holders of record of outstanding shares representing at
least 66-2/3% of all the outstanding capital stock of the Registrant entitled to
vote generally in the election of directors to amend, alter, change or repeal,
or adopt any provision or provisions inconsistent with, Article Fourth of the
Second Restated Certificate of Incorporation, which sets forth the authorized
capital stock of the Registrant and the terms thereof.
2
<PAGE>
The Second Restated Certificate of Incorporation of the Registrant allows
the Board of Directors to adopt, amend or repeal the By-laws, subject to the
right of the Registrant's stockholders entitled to vote with respect thereto to
adopt, amend or repeal the By-laws. The By-laws provide that they may be
altered, amended or repealed by (i) the affirmative vote of at least 66-2/3% of
the members of the Board of Directors present at a meeting at which a quorum is
present or (ii) the holders of 66-2/3% of the issued and outstanding shares of
stock entitled to vote generally at a meeting of stockholders, voting as a
single class. This provision would enable holders of more than 33-1/3% of the
voting power to prevent an amendment to the By-laws by the stockholders even if
it were favored by the holders of a majority of the voting stock.
Delaware Law and Certain Charter Provisions
Section 203 of the DGCL requires that certain types of business
combinations (including mergers, combinations, and sales or other dispositions
of significant assets of a corporation) may not be accomplished with an
interested stockholder (generally, any person holding 15% or more, directly or
indirectly through affiliates or associates, of the issued and outstanding
shares of voting stock of a corporation) within three years of the date the
person became an interested stockholder unless: (i) prior to such date the Board
of Directors of the corporation approved of the business combination or
transaction which resulted in the stockholder becoming an interested
stockholder; or (ii) upon consummation of the transaction which resulted in the
stockholder becoming an interested stockholder, the interested stockholder owned
at least 85% of the voting stock (excluding shares of stock owned by persons who
are both directors and officers, and by certain employee stock plans); or (iii)
on or subsequent to such date, the business combination is approved by the Board
of Directors and by the affirmative vote of stockholders holding at least
66-2/3% of the issued and outstanding voting stock of the corporation. Section
203 is applicable to the Registrant.
Preferred Stock Purchase Rights
Under the Registrant's Stockholders Protection Rights Plan (the "Rights
Plan"), the Board of Directors has declared and paid a dividend of one Preferred
Stock Purchase Right (a "Right") for each outstanding share of Common Stock.
Except as set forth below, each Right, when exercisable, entitles the registered
holder to purchase from the Registrant one one-thousandth of a share of Series A
Junior Participating Preferred Stock, $.01 par value (the "Series A Preferred
Stock"), at a price of $100.00 per one one-thousandth of a share (the "Purchase
Price"), subject to adjustment. The terms of the Rights are set forth in the
Rights Agreement between the Registrant and The Boatmen's Trust Company, as
Rights Agent (the "Rights Agreement"), and the summary of the terms of the
Rights set forth herein is qualified in its entirety by reference to the Rights
Agreement.
3
<PAGE>
Currently, no separate Rights certificates represent the Rights. Until the
earlier of (i) 10 business days following the first to occur of (a) a public
announcement by the Registrant or an Acquiring Person (defined below) that,
without the prior written consent of the Registrant, a person or group of
affiliated or associated persons, other than the Registrant or subsidiaries or
employee benefit or compensation plans of the Registrant (an "Acquiring
Person"), has acquired, or obtained the right to acquire, 20% or more of the
voting power of all securities of the Registrant then outstanding and generally
entitled to vote for the election of directors of the Registrant ("Voting
Power"), or (b) the date on which the Registrant first has notice or otherwise
determines that a person has become an Acquiring Person (the "Stock Acquisition
Date"), or (ii) 10 business days (or such later date as may be determined by the
Board of Directors prior to the time that any person becomes an Acquiring
Person) after the date that a tender offer or exchange offer is first published
or sent, without the prior written consent of a majority of the Board of
Directors, that will result in any person owning 20% or more of the Voting Power
(the earlier of the dates in clause (i) or (ii) above being called the
"Distribution Date"), the Rights will be evidenced by the Registrant's
outstanding Common Stock certificates. Notwithstanding the foregoing, an
Acquiring Person shall not include any person or group who inadvertently becomes
the beneficial owner of 20% or more of the Voting Power, as long as such person
or group promptly enters into an irrevocable commitment to, and promptly does,
divest enough shares to get below the 20% threshold.
The Rights Agreement provides that, until the Distribution Date, the Rights
will be transferable only in connection with the transfer of the Registrant's
Common Stock. Until the Distribution Date (or earlier redemption, termination or
expiration of the Rights), newly issued Common Stock certificates will contain a
notation incorporating the Rights Agreement by reference. Until the Distribution
Date (or earlier redemption, termination or expiration of the Rights), the
surrender for transfer of any of the Registrant's outstanding Common Stock
certificates will also constitute the transfer of the Rights associated with the
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 Registrant's Common
Stock as of the close of business on the Distribution Date, and such separate
certificates alone will then evidence the Rights.
The Rights are not exercisable until the Distribution Date. The Rights will
expire on February 28, 2006, unless such date is extended or unless earlier
redeemed or exchanged by the Registrant, as described below.
The Purchase Price payable, the number and identity of shares of Series A
Preferred Stock or other securities or property issuable upon exercise of the
Rights and the number of Rights outstanding 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) upon the issuance to holders of Series A Preferred Stock of rights or
warrants to subscribe for shares of Series A Preferred Stock or securities
convertible into Series A Preferred Stock at less than the then current market
price of the Series A Preferred Stock, or (iii) upon the distribution to holders
of Series A Preferred Stock of evidences of indebtedness or cash (excluding
regular periodic cash dividends out of earnings or retained earnings of the
Registrant), assets (other than a dividend payable in Series A Preferred Stock)
or convertible securities, subscription rights or warrants (other than those
referred to above).
The number of outstanding Rights and the number of one one-thousandths of a
share of Series A Preferred Stock issuable upon exercise of each Right are also
subject to adjustment in the event of a subdivision, combination or
consolidation of the Common Stock or a stock dividend on the Common Stock
payable in Common Stock occurring, in any such case, prior to the Distribution
Date.
4
<PAGE>
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price. No fractional shares will be issued (other than fractions
which are integral multiples of one one-thousandth of a share of Series A
Preferred Stock). In lieu of fractional shares, an adjustment in cash will be
made based on the market price of the stock on the last trading date prior to
the date of exercise.
In the event that, following the Distribution Date, (i) the Registrant
consolidates with or merges with or into any person, (ii) any person
consolidates with or merges with or into the Registrant, and the Registrant
continues or survives such merger and, in connection with such merger, all or
part of the Common Stock is changed into or exchanged for stock or securities of
another person or cash or any other property or (iii) the Registrant (or one or
more of its subsidiaries) sells or transfers 50% or more of the Registrant's
assets or earning power (in one transaction or a series of transactions), proper
provision shall be made so that each holder of a Right shall thereafter have the
right to receive, upon the exercise of such Right and payment of the Purchase
Price, that number of shares of common stock of the surviving or purchasing
company (or, in certain cases, one of its affiliates) which at the time of such
transaction would have a market value of two times the Purchase Price (such
right being called the "Merger Right").
In the event that any person shall become an Acquiring Person ("Flip-in
Event"), proper provision shall be made so that each holder of a Right will
thereafter have the right to receive upon exercise that number of shares (or
fractional shares) of Common Stock (or, in certain cases, equivalent securities)
having a market value of two times the Purchase Price (such right being called
the "Subscription Right"). However, the Rights will not become exercisable
following a Flip-in Event as described above until such time as the Rights are
no longer redeemable by the Registrant as described below.
Any Rights that are beneficially owned by an Acquiring Person or an
affiliate or an associate of an Acquiring Person will become null and void upon
the occurrence of any of the events giving rise to the exercisability or the
Subscription Right or the Merger Right, and any holder of such Rights will have
no right to exercise such Rights from and after the occurrence of such an event
insofar as they relate to the Subscription Right or the Merger Right.
At any time after the acquisition by a person or group of affiliated or
associated persons of beneficial ownership of 20% or more of the Voting Power
and prior to the acquisition by such person or group of 50% or more of the
Voting Power, the Board of Directors of the Registrant may exchange the Rights
(other than Rights owned by such person or group which have become void), in
whole or in part, at an exchange ratio of one share of Common Stock, or one
one-thousandth of a share of Series A Preferred Stock (or of a share of the
Registrant's Preferred Stock having equivalent rights, preferences and
privileges), per Right (subject to adjustment).
At any time prior to the Distribution Date, the Registrant may elect to
redeem the Rights in whole, but not in part, at a price of $0.001 per Right as
adjusted to reflect any stock split, stock dividend or similar transaction. Upon
the effective date of the redemption, the right to exercise the Rights will
terminate and the only right thereafter of the holders of Rights will be the
right to receive the redemption price. The Registrant shall promptly and
publicly disclose any such redemption and provide notice of such redemption to
Rights holders within 10 days after the Board action. However, any failure to
give, or defect in, such disclosure will not affect the validity of such
redemption.
5
<PAGE>
The Series A Preferred Stock purchasable upon exercise of the Rights will
not be redeemable and will be junior to any other series of Preferred Stock the
Registrant may issue (unless otherwise provided in the terms of such stock).
Each share of Series A Preferred Stock will have a preferential dividend in an
amount equal to the greater of $10.00 per share or 1,000 times any dividend
declared on each share of Common Stock. In the event of liquidation, the holders
of Series A Preferred Stock will be entitled to a minimum preferential
liquidation payment of $1,000 per share (plus any accrued but unpaid dividends)
and, after payment of an equivalent amount to holders of the Common Stock, to
share ratably and proportionately with the Common Stock in the distribution of
any remaining assets. Each share of Series A Preferred Stock will have 1,000
votes, voting together with the shares of Common Stock. In the event of any
merger, consolidation or other transaction in which shares of Common Stock are
exchanged, each share of Series A Preferred Stock will be entitled to receive
1,000 times the amount and type of consideration received per share of Common
Stock. The rights of the Series A Preferred Stock as to dividends, liquidation
and voting, and in the event of mergers and consolidations, are protected by
customary anti-dilution provisions. Fractional shares of Series A Preferred
Stock in integral multiples of one one-thousandth of a share of Series A
Preferred Stock will be issuable; however, the Registrant may elect to
distribute depositary receipts in lieu of such fractional shares. In lieu of
fractional shares other than fractions that are multiples of one one-thousandth
of a share, an adjustment in cash will be made based on the market price of the
Series A Preferred Stock on the last trading date prior to the date of exercise.
Because of the nature of the Series A Preferred Stock's voting, dividend
and liquidation features, the value of the one one-thousandth of a share of
Series A Preferred Stock purchasable upon exercise of each Right should
approximate the value of one share of Common Stock.
The Board of Directors of the Registrant retains a broad ability to amend
or supplement the Rights Agreement without the consent of the holders of the
Rights, including amendments to extend the expiration date of the rights and
lower the threshold for exercisability of the Rights from 20% to not less than
the greater of (i) any percentage greater than the largest percentage of the
Voting Power then known to the Registrant to be beneficially owned by any person
or group of affiliated or associated persons (other than subsidiaries or
employee benefit or compensation plans of the Registrant), and (ii) 10%, except
that from and after such time as any person becomes an Acquiring Person no such
amendment may adversely affect the interests of the holders of the Rights.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a shareholder of the Registrant, including, without limitation, the
right to vote or to receive dividends.
6
<PAGE>
Shareholders may, depending upon the circumstances, recognize taxable
income in the event that the Rights become exercisable for Series A Preferred
Stock or other consideration as set forth above.
The Rights have certain anti-takeover effects. The Rights may cause
substantial dilution to a person or group that attempts to acquire the
Registrant without a condition to such an offer that a substantial number of the
Rights be acquired or the Rights be redeemed or otherwise not apply. The
Registrant's ability to amend the Rights Agreement may, depending upon the
circumstances, increase or decrease the anti-takeover effects of the Rights. The
Rights do not prevent the Board of Directors of the Registrant from approving in
advance any merger or other business combination since the Rights may be
redeemed by the Board of Directors as described above.
ITEM 2. EXHIBITS
The following exhibits are filed with each copy of this Registration
Statement.
Exhibit
Number Description
- ------- ---------------------------------------------------------------
1. Second Restated Certificate of Incorporation of the Registrant.
2. By-laws of the Registrant, as amended on April 29, 1997.
3. Form of Specimen Certificate of Common Stock of the Registrant
(incorporated herein by reference to Exhibit 4.1 to the
Registrant's Registration Statement on Form S-1 (No. 333-1924)
filed with the Commission on March 4, 1996 (the "IPO Form
S-1")).
4. Rights Agreement dated February 29, 1996 between the
Registrant and The Boatmen's Trust Company, as Rights Agent
(incorporated herein by reference to Exhibit 4.2 to the IPO
Form S-1).
5. Amended and Restated Stockholders' Agreement dated as of June
15, 1995 (incorporated herein by reference to Exhibit 4.3 to
the IPO Form S-1).
6. Amended and Restated Registration Rights Agreement dated as
of June 15, 1995 (incorporated herein by reference to Exhibit
4.4 to the IPO Form S-1).
7
<PAGE>
SIGNATURES
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: April 29, 1997 BROOKS FIBER PROPERTIES, INC.
By: David L. Solomon
-------------------------------------------
Name: David L. Solomon
Title: Executive Vice President and Chief
Financial Officer
8
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Description
- ------ ---------------------------------------------------------------
1. Second Restated Certificate of Incorporation of the Registrant.
2. By-laws of the Registrant, as amended on April 29, 1997.
3. Form of Specimen Certificate of Common Stock of the Registrant
(incorporated herein by reference to Exhibit 4.1 to the
Registrant's Registration Statement on Form S-1 (No. 333-1924)
filed with the Commission on March 4, 1996 (the "IPO Form
S-1").
4. Rights Agreement dated February 29, 1996 between the
Registrant and The Boatmen's Trust Company, as Rights Agent
(incorporated herein by reference to Exhibit 4.2 to the IPO
Form S-1).
5. Amended and Restated Stockholders' Agreement dated as of June
15, 1995 (incorporated herein by reference to Exhibit 4.3 to
the IPO Form S-1).
6. Amended and Restated Registration Rights Agreement dated as of
June 15, 1995 (incorporated herein by reference to Exhibit 4.4
to the IPO Form S-1).
9
SECOND RESTATED CERTIFICATE OF INCORPORATION
OF
BROOKS FIBER PROPERTIES, INC.
**************
FIRST. The name of the Corporation is
BROOKS FIBER PROPERTIES, INC.
SECOND. The address of its registered office in the State of Delaware is
located at 1013 Centre Road, in the City of Wilmington, County of New Castle,
Delaware 19805. The name of its registered agent at such address is Corporation
Service Company.
THIRD. The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware ("GCL").
FOURTH:
A. Classes and Number of Shares.
The aggregate number of shares of capital stock which the Corporation
is authorized to issue is 151,040,012 shares, consisting of:
(i) 150,000,000 shares of Common Stock, par value $.01 per share
("Common Stock"); and
(ii) 1,040,012 shares of Preferred Stock, par value $.01 per
share ("Preferred Stock"), of which 50,000 shares are designated as
Series A Junior Participating Preferred Stock ("Series A Preferred
Stock").
B. Preemptive Rights.
No stockholder of any class of stock of the Corporation shall have any
preemptive right to acquire any additional shares of stock of the
Corporation of any class or series or any security convertible into, or
exercisable or exchangeable for, such stock.
C. Terms of Preferred Stock.
1. Series A Preferred Stock. The preferences and relative,
participating, optional and other special rights of the Series A Preferred
Stock, and the qualifications, limitations and restrictions thereof, are as
follows:
<PAGE>
(i) Dividends and Distributions.
(a) Subject to the rights of the holders of any shares of
any series of Preferred Stock of the Corporation ranking prior
and superior to the Series A Preferred Stock with respect to
dividends, the holders of shares of Series A Preferred Stock, in
preference to the holders of shares of Common Stock and of any
other junior 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 any
regular quarterly dividend payment date as shall be established
by the Board of Directors (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 Preferred Stock, in an
amount per share (rounded to the nearest cent) equal to the
greater of (a) $10.00 or (b) subject to the provision for
adjustment hereinafter set forth, 1000 times the aggregate per
share amount of all cash dividends, and 1000 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 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 Preferred Stock. In the event the Corporation
shall at any time after February 29, 1996 (the "Rights
Declaration Date") declare or pay any dividend on the Common
Stock payable in shares of Common Stock, or effect a subdivision
or combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of
a dividend in shares of Common Stock) into a greater or lesser
number of shares of Common Stock, then in each such case the
amount to which holders of shares of Series A Preferred Stock
were entitled immediately prior to such event under clause (b) of
the preceding sentence shall be adjusted by multiplying such
amount 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 Preferred Stock as provided in subparagraph (a)
of this paragraph (i) 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 $10.00 per share on the Series A 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 Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such
shares, 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
Preferred Stock entitled to receive a quarterly dividend and
before such Quarterly Dividend Payment Date, in either of which
2
<PAGE>
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 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, in accordance with applicable law, fix a record
date for the determination of holders of shares of Series A
Preferred Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be not
more than such number of days prior to the date fixed for the
payment thereof as may be allowed by applicable law.
(ii) 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 1000 votes on all matters submitted to a vote
of the stockholders of the Corporation. In the event the
Corporation shall at any time after the Rights Declaration Date
declare or pay any dividend on the Common Stock payable in shares
of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in
shares of Common Stock) into a greater or lesser number of shares
of Common Stock, then in each such case the number of votes to
which holders of shares of Series A Preferred Stock were entitled
immediately prior to such event under the preceding sentence
shall be adjusted by multiplying such amount 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) Except as otherwise provided herein or by law, the
holders of shares of Series A Preferred Stock, the holders of
shares of Common Stock and the holders of shares of any other
capital stock of the Corporation having general voting rights
shall vote together as one class on all matters submitted to a
vote of stockholders of the Corporation.
(c) Except as otherwise set forth herein and except as
otherwise provided by law, 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 taking any
corporate action.
(iii) Certain Restrictions.
(a) Whenever dividends or distributions payable on the
Series A Preferred Stock as provided in paragraph (i) above are
in arrears, thereafter and until all accrued and unpaid dividends
and distributions, whether or not declared, on shares of Series A
Preferred Stock outstanding shall have been paid in full, the
Corporation shall not:
3
<PAGE>
(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 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 Preferred Stock, except
dividends 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;
(iii) except as permitted in subparagraph (a)(iv) of
this paragraph (iii) below, 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 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 (either as to dividends or upon dissolution,
liquidation or winding up) to the Series A Preferred Stock;
and
(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,
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 subparagraph (a) of this paragraph (iii), purchase
or otherwise acquire such shares at such time and in such manner.
(iv) Reacquired Shares. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and cancelled promptly after the
acquisition thereof. The Corporation shall cause all such shares upon
their cancellation to be authorized but unissued shares of Preferred
Stock which may be reissued as part of a new series of Preferred
Stock, subject to the conditions and restrictions on issuance set
forth herein.
(v) Liquidation, Dissolution or Winding Up.
(a) Subject to the rights of the holders of any shares of
any series of Preferred Stock of the Corporation ranking prior
and superior to the Series A Preferred Stock with respect to
liquidation, upon any liquidation (voluntary or otherwise),
4
<PAGE>
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 Preferred Stock unless, prior
thereto, the holders of shares of Series A Preferred Stock shall
have received $1000.00 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 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) 1000 (as appropriately
adjusted as set forth in subparagraph (b) below to reflect such
events as stock dividends, and subdivisions, combinations and
consolidations with respect to the Common Stock) (such number in
clause (ii) being referred to as 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 Preferred Stock and Common
Stock, respectively, holders of Series A 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
Series A Preferred Stock and Common Stock, on a per share basis,
respectively.
(b) In the event 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, which rank on a parity with the Series A 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 there are not
sufficient assets available to permit payment in full of the
Common Adjustment, then such remaining assets shall be
distributed ratably to the holders of Common Stock.
(c) In the event the Corporation shall at any time after the
Rights Declaration Date declare or pay any dividend on Common
Stock payable in shares of Common Stock, or effect a subdivision
or combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of
a dividend in shares of Common Stock) into a greater or lesser
number of shares of Common Stock, 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.
(vi) 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 Preferred Stock shall at the same
time be similarly exchanged or changed in an amount per share (subject
to the provision for adjustment hereinafter set forth) equal to 1000
times the aggregate amount of stock, securities, cash and/or any other
5
<PAGE>
property (payable in kind), as the case may be, into which or for
which each share of Common Stock is changed or exchanged. In the event
the Corporation shall at any time after the Rights Declaration Date
declare or pay any dividend on Common Stock payable in shares of
Common Stock, or effect a subdivision or combination or consolidation
of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock)
into a greater or lesser number of shares of Common Stock, then in
each such case the amount set forth in the preceding sentence with
respect to the exchange or change of shares of Series A Preferred
Stock shall be adjusted by multiplying such amount 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 are outstanding immediately
prior to such event.
(vii) Redemption. The shares of Series A Preferred Stock shall
not be redeemable.
(viii) Ranking. The Series A 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.
(ix) Fractional Shares. Series A Preferred Stock may be issued in
fractions of a share which 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 Preferred Stock.
2. Other Series of Preferred Stock. The terms of the shares of each
other series of Preferred Stock shall be as stated and expressed in this
Certificate of Incorporation or any amendment hereto, or in the resolution
or resolutions providing for the issuance of such series of Preferred Stock
adopted by the Board of Directors. Subject to the requirements of the GCL
and the provisions of this Certificate of Incorporation, the Board of
Directors is expressly authorized to cause any number of the authorized and
undesignated shares of Preferred Stock to be issued from time to time in
one or more series of Preferred Stock with such voting powers, full or
limited, or no voting powers, and such designations, preferences and
relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, if any, as the Board
of Directors may fix by resolution or resolutions, prior to the issuance of
any shares of such series of Preferred Stock, each of which series may
differ from any and all other series, including, without limiting the
generality of the foregoing, the following:
(i) The number of shares constituting such series of Preferred
Stock and the designation thereof;
(ii) The dividend rate, if any, on the shares of such series of
Preferred Stock, whether and the extent to which any such dividends
shall be cumulative or non-cumulative, the relative rights of
priority, if any, of payments of any dividends, and the times at
which, and the terms and conditions on which, any dividends shall be
paid;
(iii) The right, if any, of the holders of shares of such series
of Preferred Stock to vote and the manner of voting, except as may
otherwise be provided by the GCL;
6
<PAGE>
(iv) The right, if any, of the holders of shares of such series
of Preferred Stock to convert the same into, or the right, if any, of
the Corporation to exchange the same for, another class or series of
stock of the Corporation and the terms and conditions, including any
provision for future adjustment in the conversion or exchange rate,
under which said shares may be converted or exchanged;
(v) The redemption or purchase price or prices of the shares of
such series of Preferred Stock, if any, and the times at which, and
the terms and conditions on which, the shares of such series of
Preferred Stock may be redeemed or purchased;
(vi) The terms of the sinking fund, if any, to be provided for
such series of Preferred Stock, and the terms and amount of such
sinking fund;
(vii) The rights of the holders of shares of such series of
Preferred Stock in the event of a voluntary or involuntary
liquidation, dissolution or winding up of the Corporation and the
relative rights of priority, if any, of such holders with respect
thereto; and
(viii) Any other relative powers, preferences and rights, and any
qualifications, limitations or restrictions, of such series of
Preferred Stock.
D. Terms of Common Stock.
The voting powers and relative, participating, optional and other
special rights of the Common Stock, and the qualifications, limitations and
restrictions thereof, are as follows:
(i) Voting Rights and Powers. Except as provided in the GCL, the
holders of shares of the Common Stock shall vote together as a single
class (with the holders of all series of Preferred Stock entitled to
vote together with the holders of the shares of Common Stock) on all
matters as to which such holders are entitled to vote.
(ii) Dividend Rights. Cash dividends may be declared and paid
upon the Common Stock in such amounts and at such times as the Board
of Directors may determine, provided that such dividends are paid on
the outstanding Common Stock in equal amounts per share. Each share of
the Common Stock shall be equal in respect of rights to dividends and
distributions when and as declared in the form of stock or other
property of the Corporation. Funds otherwise legally available for the
payment of dividends on the Common Stock shall not be restricted or
reduced by reason of there being any excess of the aggregate
preferential amount of any series of Preferred Stock outstanding over
the aggregate par value thereof.
(iii) Liquidation Rights. Upon the dissolution, liquidation or
winding up of the Corporation, after there shall have been paid or set
apart for payment to the holders of any outstanding shares of
Preferred Stock the full preferential amounts to which they are
entitled, the holders of the outstanding shares of the Common Stock
shall be entitled, on a share for share basis, to receive the funds of
the Corporation remaining for distribution to its stockholders.
7
<PAGE>
Neither the sale of all or substantially all the property or business
of the Corporation nor the merger or consolidation of the Corporation
into or with any other Corporation or the merger or consolidation of
any other Corporation into or with the Corporation shall be deemed to
be a dissolution, liquidation or winding up, voluntary or involuntary,
of the Corporation within the meaning of this paragraph (iii).
(iv) Other Powers and Rights. Except as otherwise required by the
GCL or as otherwise provided in this Certificate of Incorporation,
each share of Common Stock shall have identical powers and rights.
FIFTH. All corporate powers of the Corporation shall be exercised by or
under the direction of the Board of Directors except as otherwise provided
herein or by applicable law. In furtherance and not in limitation of the powers
conferred by law, the Board of Directors is expressly authorized:
(i) to adopt, amend or repeal By-laws of the Corporation, subject to
the right of the stockholders of the Corporation entitled to vote with
respect thereto to adopt By-laws and to amend or repeal By-laws made by the
Board of Directors; and
(ii) from time to time to determine whether and to what extent, at
what time and place, and under what conditions and regulations the accounts
and books of the Corporation, or any of them, shall be open to the
inspection of any stockholder; and no stockholder shall have any right to
inspect any account or book or document of the Corporation except as
provided by applicable law or the By-laws of the Corporation or as
authorized by resolution of the stockholders or Board of Directors of the
Corporation.
SIXTH. No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for any breach of fiduciary
duty by such director as a director; provided, however, that the foregoing shall
not be deemed to eliminate or limit the liability of a director to the extent
provided by applicable law (i) for any breach of the director's duty of loyalty
to the Corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the GCL, or (iv) for any transaction from which the
director derived an improper personal benefit. This provision is not intended to
eliminate or narrow any defenses to or protection against liability otherwise
available to directors of the Corporation. No amendment to or repeal of this
Article Seventh shall apply to or have any effect on the liability or alleged
liability of any director of the Corporation for or with respect to any acts or
omissions of such director occurring prior to such amendment.
SEVENTH.
A. Every person who was or is a party or is threatened to be made a party
to or is involved in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that such person or a person of whom such person is a legal
representative is or was a director or officer of the Corporation or is or was
serving at the request of the Corporation or for its benefit as a director,
officer, employee or agent of any other corporation, or as the representative of
the Corporation in a partnership, joint venture, trust or other entity, shall be
indemnified and held harmless by the Corporation to the fullest extent legally
permissible under the GCL, as amended from time to time, against all expenses,
8
<PAGE>
liabilities and losses (including attorneys' fees, judgments, fines and amounts
paid or to be paid in settlement) reasonably paid or incurred by such person in
connection therewith. Such right of indemnification shall be a contract right
that may be enforced in any manner desired by such person. Such right of
indemnification shall include the right to be paid by the Corporation the
expenses incurred in defending any such action, suit or proceeding in advance of
its final disposition upon receipt of an undertaking by or on behalf of such
person to repay such amount if ultimately it should be determined that such
person is not entitled to be indemnified by the Corporation under the GCL. Such
right of indemnification shall not be exclusive of any other right which such
directors, officers or representatives may have or hereafter acquire and,
without limiting the generality of such statement, they shall be entitled to
their respective rights of indemnification under any By-law, agreement, vote of
stockholders, provision of law or otherwise, as well as their rights under this
Article Seventh.
B. The Board of Directors may adopt By-laws from time to time with respect
to indemnification to provide at all times the fullest indemnification permitted
by the GCL, as amended from time to time, and may cause the Corporation to
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation or for its benefit as a director, officer,
employee or agent of any other corporation, or as the representative of the
Corporation in a partnership, joint venture, trust or other entity, against any
expense, liability or loss asserted against or incurred by any such person in
any such capacity or arising out of any such status, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss.
EIGHTH. The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders, directors and officers herein are granted subject to this
reservation; provided that (in addition to any required class or other vote) the
affirmative vote of the holders of record of outstanding shares representing at
least 66 2/3% of all the outstanding Common Stock and Preferred Stock entitled
to vote generally in the election of directors, voting together as a single
class, shall be required to amend, alter, change or repeal, or adopt any
provision or provisions inconsistent with, Article Fourth of this Certificate of
Incorporation.
NINTH.
A. The Board of Directors shall be divided into three (3) classes,
designated Class I, Class II and Class III. Each class shall consist, as nearly
as may be possible, of one-third of the total number of directors constituting
the entire Board of Directors. At the annual meeting of stockholders to be held
in 1996, the directors of Class I shall be elected for a term of one year, the
directors of Class II shall be elected for a term of two years, and the
directors of Class III shall be elected for a term of three years, and in each
case, until their respective successors shall have been elected and qualified in
the class to which such director is assigned or until their earlier death,
resignation and removal. At each annual meeting of stockholders thereafter, the
9
<PAGE>
successors of the directors of the class whose term expires in that year shall
be elected to hold office for a term of three years (and until their respective
successors shall have been elected and qualified in such class or until their
earlier death, resignation or removal), so that the term of one class of
directors shall expire in each year. If the number of directors is changed, any
increase or decrease in directorships shall be apportioned among the classes so
as to maintain the number of directors in each class as nearly equal as
possible, and any additional directors of any class elected to fill a vacancy
resulting from an increase in such class shall hold office only until the next
election of directors by the stockholders, but in no case will a decrease in the
number of directors shorten the term of any incumbent director. Any vacancy on
the Board of Directors, whether arising through death, resignation or removal,
or through an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors then in office, even
if less than a quorum. Any director elected to fill a vacancy shall hold office
only until the next election of directors by the stockholders.
B. Notwithstanding anything in this Certificate of Incorporation or By-Laws
of the Corporation to the contrary, whenever the holders of any one or more
classes or series of shares of capital stock of the Corporation other than
shares of Common Stock shall have the right, voting separately by class or
series, to elect directors, the election, term of office, filling of vacancies
and other features of such directorship shall be governed by the terms of the
Certificate of Incorporation of the Corporation or any Certificate of
Designation thereunder applicable thereto; and such directors so elected shall
not be divided into classes pursuant to this Article Ninth unless expressly
provided by such terms.
SECTION 5.1. Election and Appointment; Term of Office. The officers of the
Corporation shall be a Chairman of the Board, one or more Vice Chairmen of the
Board (the number thereof to be determined from time to time by the Board of
Directors), a President, one or more Vice Presidents (the number thereof to be
determined from time to time by the Board of Directors), a Treasurer and a
Secretary. Each such officer shall be elected by the Board of Directors at its
annual meeting and shall hold office until the next annual meeting of the Board
of Directors and until his or her successor is elected or until his or her
earlier death, resignation or removal in the manner hereinafter provided. The
Board of Directors may elect or appoint such other officers (including one or
more Assistant Treasurers and one or more Assistant Secretaries) as it deems
necessary who shall have such authority and shall perform such duties as the
Board of Directors may prescribe. If additional officers are elected or
appointed during the year, each of them shall hold office until the next annual
meeting of the Board of Directors at which officers are regularly elected or
appointed and until his or her successor is elected or appointed or until his or
her earlier death, resignation or removal in the manner hereinafter provided.
* * * *
SECTION 5.3. Duties and Functions.
* * * *
(B) Chief Executive Officer. The Chief Executive Officer of the Corporation
shall see that orders and resolutions of the stockholders and Board of Directors
are carried into effect. Subject to the direction and control of the Board of
Directors, the Chief Executive Officer shall have responsibility for the
management and control of the affairs and business of the Corporation and shall
perform all duties and have all powers which are commonly incident to the office
of the Chief Executive Officer, including the power to enter into commitments,
execute and deliver contracts and do and perform all such other acts and things
as are necessary and appropriate in the ordinary course of business to
accomplish the Corporation's business and operations and to manage the day to
day business and affairs of the Corporation. In the absence or incapacity of the
Chairman of the Board or the President, the powers and duties of the Chairman of
the Board or the President, as the case may be, shall be vested in the Vice
Chairmen of the Board in the order of their seniority or as otherwise
established by the Board of Directors from time to time, or by such other
officer as the Board of Directors or the Chairman of the Board shall have most
recently designated for that purpose in a writing filed with the Secretary. The
Chief Executive Officer may assign such duties to other officers of the
Corporation as he or she deems appropriate.
* * * *
