-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, SHpzIETBBQFNKEYM5ytMZYNm6f+S3ptdn6fu1gphI6t4L8YrxNztsPPirULoP+6w 2Z9AV8qrtYMj0DdAKVKvMQ== 0000066479-96-000017.txt : 19960419 0000066479-96-000017.hdr.sgml : 19960419 ACCESSION NUMBER: 0000066479-96-000017 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 19960418 SROS: NYSE SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: MILLIPORE CORP CENTRAL INDEX KEY: 0000066479 STANDARD INDUSTRIAL CLASSIFICATION: LABORATORY ANALYTICAL INSTRUMENTS [3826] IRS NUMBER: 042170233 STATE OF INCORPORATION: MA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-10772 FILM NUMBER: 96548454 BUSINESS ADDRESS: STREET 1: 80 ASHBY RD CITY: BEDFORD STATE: MA ZIP: 01730 BUSINESS PHONE: 6172759200 MAIL ADDRESS: STREET 1: 80 ASHBY ROAD CITY: BEDFORD STATE: MA ZIP: 01730 FORMER COMPANY: FORMER CONFORMED NAME: MILLIPORE FILTER CORP DATE OF NAME CHANGE: 19661116 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: MILLIPORE CORP CENTRAL INDEX KEY: 0000066479 STANDARD INDUSTRIAL CLASSIFICATION: LABORATORY ANALYTICAL INSTRUMENTS [3826] IRS NUMBER: 042170233 STATE OF INCORPORATION: MA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 80 ASHBY RD CITY: BEDFORD STATE: MA ZIP: 01730 BUSINESS PHONE: 6172759200 MAIL ADDRESS: STREET 1: 80 ASHBY ROAD CITY: BEDFORD STATE: MA ZIP: 01730 FORMER COMPANY: FORMER CONFORMED NAME: MILLIPORE FILTER CORP DATE OF NAME CHANGE: 19661116 SC 13D 1 Schedule 13D Exhibit (1) CERTIFICATE OF DESIGNATIONS SERIES A REDEEMABLE CONVERTIBLE PREFERRED STOCK ($0.01 Par Value) of PERSEPTIVE BIOSYSTEMS, INC. _______________________________ Pursuant to Section 151 of the General Corporation Law of the State of Delaware _______________________________ PerSeptive Biosystems, Inc., a corporation organized and existing under the General Corporation Law of the State of Delaware (the "Corporation:), in accordance with the provisions of Section 103 thereof, DOES HEREBY CERTIFY: FIRST: That pursuant to the authority conferred upon the Board of Directors by the Amended and Restated Certificate of Incorporation, as amended, of the Corporation, the Board of Directors of the Corporation adopted the following resolutions creating a series of 4,000 shares of Preferred Stock, $0.01 par value per share, designated as Series A Redeemable Convertible Preferred Stock: RESOLVED: That pursuant to the authority vested in the Board of Directors of this Corporation in accordance with the provisions of Article FOURTH, Section B of its Amended and Restated Certificate of Incorporation, as amended, a series of Preferred Stock of the Corporation (the "Series A Redeemable Convertible Preferred Stock") be, and it hereby is, created, and that the designation and amount thereof and the voting powers, preferences and relative, participating, optional and other special rights of the shares of the Series A Redeemable Convertible Preferred Stock, and the qualifications, limitations or restrictions thereof, shall be as set forth in Exhibit A attached hereto. RESOLVED: That the President or any Senior Vice President and the Secretary or any Assistant Secretary of the Corporation be, and they hereby are, authorized and directed, in the name and on behalf of the Corporation, to file the Certificate of Designations in accordance with the provisions of the Delaware General Corporation Law and to take such actions as they may deem necessary of appropriate to carry out the intent of the foregoing resolution. SECOND: That the aforesaid resolutions were duly and validly adopted in accordance with the applicable provisions of Section 151 of the General Corporation Law of the State of Delaware and the Amended and Restated Certificate of Incorporation, as amended By-Laws of the Corporation. THIRD: That the aforesaid designation shall become effective on August 22, 1994. Exhibit A 1. Designation. The Corporation hereby designates a single series of Preferred Stock, the designation of which shall be "Series A Redeemable Convertible Preferred Stock," $0.01 par value per share (hereinafter called "this Series"), and the number of authorized shares constituting this Series is four thousand (4,000) shares. Certain capitalized terms used herein shall have the respective meaning assigned to them in Section 7 hereof. 2. Dividends. The shares of this Series shall receive no dividends prior to their Redemption Date(s) (as defined below). In the event that any shares of the Series are not redeemed on their Redemption Date(s), then all the shares of this Series remaining outstanding shall bear dividends at the cash rate of 10% per annum of the Redemption Price (as defined below) until the Corporation has either deposited the necessary funds for their redemption in accordance with Section 3(e) below, or has redeemed said shares by the delivery of Common Stock of the Corporation in the manner as hereinafter provided. 3. Mandatory Redemption; Provision for Special Events. (a) The shares of this Series shall be redeemed in four equal annual installments of 1,000 shares each commencing on the first anniversary date of their issuance (each, a "Redemption Date" and collectively, the "Redemption Dates") and on the following terms and conditions: Number of Shares to be Redeemed on Each Redemption Date: 1,000 shares. Redemption Price: $10,000 per share (the "Redemption Price"), which amount shall be subject to equitable adjustment whenever there shall occur a stock split, combination, reclassification or other similar event involving this Series. The aggregate Redemption Price to be paid for the redemption shares of this Series on each Redemption Date shall be $10,000,000, subject to reduction in accordance with conversions of shares of this Series in accordance with Section 4A(b) as a result of prior optional redemption(s) and/or conversions of shares of this Series in accordance with the terms hereof. Form of Payment: The Redemption Price is payable, at the option of the Corporation, partly or wholly, either in cash at $10,000 per share, or by conversion into, and the delivery of, that number of shares of Common Stock of the Corporation determined by dividing $10,000 per share (less any amount of the Redemption Price that shall be paid in cash) by the average Closing Price of the Corporation's Common Stock (as defined in Section 7) for each of the ten (10) trading days ending on the fifth business day immediately prior to the Redemption Date. Place of Redemption: American Stock Transfer and Trust Company, 44 Wall Street, New York, New York, or such other transfer agent for the Common Stock of the Corporation as may be appointed by the Corporation from time to time (the "Transfer Agent"). Time of Redemption: No later than 5 business days subsequent to the Redemption Date. No Sinking or Retirement Fund. The shares of this Series shall not be entitled to the benefit of a sinking or retirement fund to be applied to the purchase or redemption of such shares. (b) The outstanding shares of this Series shall be redeemed by the Corporation in whole at the Redemption Price, and in either manner as set forth in Section 3(a) above, if either of the following events occur: (i) A merger of the Corporation (other than a reorganization, consolidation or merger accomplished for the purpose of changing the state of incorporation of the Corporation or a merger, acquisition or consolidation by the Corporation of or with another corporation or entity where the Corporation or its stockholders immediately prior to such transaction, directly or indirectly, own, immediately after such transaction at least a majority of the voting stock of the combined or surviving corporation) or the sale or exchange of all its outstanding Common Stock, or the disposition of all or substantially all its properties and assets, or the redemption by the Corporation of 10% or more of its outstanding Common Stock. (ii) There shall have occurred, and remain uncured for a period of fifty (50) days after written notice to the Corporation an "Event of Default" as defined in Section 7 below. (c) The shares of this Series shall be redeemed in cash by the Corporation in whole at the Redemption Price if the following event occurs: (i) There shall have occurred a "Change of Control Date" (at that term is defined in Section 8) also described by Section 3(b)(i), such provision shall govern in lieu of this Section 3(c)(i). The events described in Sections 3(b) and 3(c) above are hereinafter referred to individually as a "Special Event" and collectively as "Special Events". (d) Should the Corporation be required to redeem all the shares of this Series by virtue of either Section 3(b) or 3(c), notice of such redemption shall be given no later than 3 business days after the Special Event which gives rise to the requirement of redemption, and at least three (3) business days prior to the date set for such redemption. (e) The Corporation's obligation to provide an adequate amount of money for the payment in cash of the Redemption Price necessary to effect any redemption in accordance with this Section 3 shall be deemed fulfilled if, on or before the applicable Redemption Date, the Corporation shall deposit with the Transfer Agent an amount of money adequate for the payment of the aggregate Redemption Price necessary for such redemption in accordance with the terms hereof, in trust, with irrevocable instructions that such money be applied to the redemption of the shares of this Series called for redemption. (f) The procedure for the redemption of shares of this Series by the issuance of, and the conversion into, Common Stock of the Corporation shall be in accordance with Sections 4A(b) through 4(h) below. (g) Any shares of this Series which shall have any time have been redeemed shall, after such redemption, have the status of authorized but unissued shares of Preferred Stock, without designation as to series until such shares are once more designated as part of a particular series by the Board of Directors. (h) Any waiver pursuant to Section 8 hereof of the mandatory redemption provisions (such partial waiver to apply on a pro rata basis to all holders of shares of this Series) set forth in this Section 3 must apply with equal force and effect to all or any portion of the shares of this Series. 4. Optional Redemption. The Corporation shall have the right, at its sole option, to redeem the shares of this Series on the following terms and conditions: (a) The Corporation may redeem all or any part of the outstanding shares of this Series at any time, or from time to time, for cash at the Redemption Price ($10,000 per share) on five (5) days notice. The procedure for providing funds for such cash redemption is set forth in Section 3(e) above. (b) The Corporation may redeem all or any part of the shares of this Series at any time, or from time to time, on five (5) days notice at the Redemption Price ($10,000 per share) by conversion into, and delivery of, that number of shares of Common Stock of the Corporation as determined in accordance with Section 3(a) above. 4A. Conversion at the Option of the Holder. (a) Subject to, and in compliance with, the provisions of this Section 4A, any or all outstanding shares of this Series may, at the option of the Holder, be converted into shares of Common Stock upon written notice to the Corporation if immediately preceding the date of such notice the ten-day average of the Closing Price of the Corporation's Common Stock shall equal or exceed $32.00 per share. The number of shares of Common Stock to which a Holder of this Series shall be entitled upon conversion shall be the product obtained by (i) dividing $10,000 by such tenday average Closing Price and (ii) multiplying the result by the number of shares of this Series being converted at that time. (b) Any optional conversion of shares of this Series pursuant to this Section 4A, and any optional redemption pursuant to Section 4, of less than all of the outstanding shares of this Series shall reduce the number of shares to be redeemed at future Redemption Date(s) pursuant to Section 3 starting with the shares of this Series to be redeemed at the Redemption Date furthest in the future from the date of such optional conversion or redemption, as the case may be. The outstanding shares of this Series to be redeemed pursuant to Section 3 shall be reduced thereafter by the number of such optionally redeemed or converted shares, as the case may be, in inverse chronological order. (c) The shares of the Series which are to be redeemed pursuant to either Section 3 or Section 4, or converted pursuant to this Section 4A, shall be surrendered by the Holder duly endorsed or assigned to the Corporation. As promptly as practicable after the surrender of certificates for shares of this Series to be redeemed and/or converted, as the case may be, the Corporation shall, subject to Section 4A(g) below, issue and deliver to the Holder thereof a certificate or certificates for the number of full shares of the Corporation's Common Stock issuable upon the redemption and/or conversion of such shares, as the case may be. (d) If the Corporation shall be party to any transaction (including without limitation a merger or consolidation of the Corporation and the shares of this Series shall not have redeemed by reason of a Special Event), in each case as a result of which shares of Common Stock shall be converted into the right to receive stock,securities or other property (including cash or combination thereof) (each of the foregoing being referred to herein as a "Transaction"), each share of this Series which is not coverted into the right to receive stock, securities or other property in connection with such Transaction shall thereafter be redeemable for, and/or convertible into, the kind and amount of shares of stock, securities and other property (including cash or any combination thereof) receivable upon the consummation of such Transaction having a value equal to the Redemption Price on the applicable Redemption Date. (e) The Corporation covenants that it will at all times reserve and keep available, free from preemptive rights, out of the aggregate of its authorized but unissued shares of Common Stock and/or, if the shares of this Series are then convertible into other common stock of the Corporation, such other common stock, or its issued shares of Common Stock or such other common stock, as the case may be, held in its treasury, or both, for the purpose of effecting, conversion of shares of this Series pursuant to this Section 4A, the full number of shares of Common Stock or such other common stock deliverable upon the redemption by conversion of all outstanding shares of this Series not theretofore converted. For purposes of this Section 4A(e), the number of shares of Common Stock or such other common stock that shall be deliverable upon conversion pursuant to this Section 4A of all outstanding shares of this Series shall be computed as if at the time of computation all such outstanding shares were held by a single holder. (f) The Corporation covenants that any shares of Common Stock or other common stock of the Corporation issued upon redemption and/or conversion of shares of this Series shall be validly issued, fully paid and nonassessable. The Corporation shall endeavor to list the shares of Common Stock or other common stock of the Corporation required to be delivered upon redemption and/or conversion of shares of this Series, prior to such delivery, upon the NASDAQ National Market or on each such national securities exchange, if any, upon which the outstanding Common Stock or such other common stock shall be listed at the time of such delivery. (g) No fractional shares of Common Stock shall be issued upon redemption and/or conversion, but, instead of any fraction of a share which would otherwise be issuable, the Corporation shall pay a cash adjustment in respect of such fraction in an amount equal to the same fraction of the tenday average Closing Price of the Corporation's Common Stock that is used to calculate the number of shares of Common Stock issuable upon redemption and/or conversion, as the case may be. (h) The Corporation will pay any and all documentary, stamp or similar issue or transfer taxes payable in respect of the issue or delivery of shares of Common Stock or other securities or property on redemption and/or conversion of shares of this Series pursuant thereto; provided, however, that the Corporation shall not be required to pay any tax that may be payable in respect of any transfer involved in the issue or delivery of shares of Common Stock or other securities or property in a name other than that of the holder of such shares to be converted and no such issue or delivery shall be made unless and until the person requesting such issue or delivery has paid to the Corporation the amount of any such tax or established, to the reasonable satisfaction of the Corporation, that such tax has been paid. 5. Voting. (a) Except as provided in this Section 5, Section 8 and applicable law, the shares of this Series shall not have any voting powers, either general or special, prior to their Redemption Dates. In the event that any shares of this Series are not redeemed within five (5) days after any Redemption Date in accordance with the terms hereof, then and until all of said shares have been redeemed, the Holders of the outstanding shares of this Series voting separately as a class shall have the exclusive right, with holders of shares of any one or more other series of Preferred Stock ranking on a parity with this Series either as to dividends or the distribution of assets upon liquidation, dissolution or winding up and upon which like voting rights have been conferred and are exercisable, to elect two (2) directors of the Corporation from and after such Redemption Date until such right shall terminate, as hereinafter provided. At elections for such directors, each holder of this Series shall be entitled to one vote for each share held. Upon the vesting of such right of the holders of this Series, the number of persons constituting the entire Board of Directors shall automatically be increased by two and the two vacancies so created shall be filled by vote of the Holders of the outstanding shares of this Series (either alone or together with the holders of shares of any one or more other series of Preferred Stock ranking on such a parity) such additional directors to be elected pursuant to this Section 5 shall serve for such terms and in such classes as shall be provided in the Corporation's Certificate of Incorporation and ByLaws. The right of the holders of this Series, voting separately as a class, to elect (either alone or together with the holders of shares of any one or more other series of Preferred Stock ranking on such a parity) members of the Board of Directors of the Corporation as aforesaid shall continue until such time as all of the shares of this Series which were to have been redeemed at a prior Redemption Date shall have been redeemed in full, at which time such right shall terminate, subject to revesting in the event of each and every subsequent default of the character above mentioned. (b) Each director elected by the Holders of shares of this Series shall continue to serve as such director until such time as all shares of this Series which were to have been redeemed at a prior Redemption Date shall have been redeemed in full, at which time all persons elected as directors by the holders of shares of this Series shall be deemed to have resigned, their offices shall become vacant and the number of persons constituting the entire Board of Directors of the Corporation shall be automatically reduced accordingly. If the office of any director elected by the holders of this Series voting as a class becomes vacant prior to such time by reason of death, resignation, retirement, disqualification, removal from office, or otherwise, the remaining director elected by the holders of this Series voting as a class may choose a successor who shall hold office for the unexpired term in respect of which such vacancy occurred. (c) Any director elected by the holders of this Series may be removed at any time and shall not be removed otherwise than by, the vote of the Holders of record of at least 75% (in the case of removal without cause), or at least a majority (in the case of removal with cause), of the outstanding shares of this Series and all other series of preferred stock who were entitled to participate in such Director's election, voting as a separate class, at a meeting called for such purpose. Any Directors elected by the Holders of the shares of this Series shall each be entitled to one vote per director on any matters on which the Board of Directors is entitled to act. 6. Liquidation Rights. (a) Upon the dissolution, liquidation or winding up of the Corporation, whether voluntary or involuntary, the holders of the outstanding shares of this Series shall be entitled to receive out of the assets of the Corporation available for distribution to stockholders, before any payment or distribution shall be made on any class of the Common Stock of the Corporation or on any other class of stock ranking junior to this Series upon liquidation, the amount of $1,000 per share. (b) Neither the sale, lease or exchange (for cash, shares of stock securities or other consideration) of all or substantially all the property and assets 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, for the purposes of this Section 6, but shall be a Special Event if within the definition thereof. (c) After the payment to the holders of the outstanding shares of this Series of the full preferential amounts provided for in this Section 6, the holders of shares of this Series as such shall have no right or claim to any of the remaining assets of the Corporation. 7. Definitions. For all purposes of this Certificate, except as otherwise expressly provided herein or unless the context otherwise requires, the following terms shall have the respective meanings set forth below, or set forth in the section of this Certificate indicated following such term, which shall include the plural as well as the singular: "Board of Directors" or "Board" means, at any time, the duly elected or acting board of directors (or duly authorized committee thereof) of the Corporation at such time. "Certificate of Incorporation" means the Corporation's Amended and Restated Certificate of Incorporation, as amended and as it may be further restated, amended, supplemented or otherwise modified from time to time. "Change of Control Date" means the date of the first acquisition subsequent to July 1, 1994 by any Person, or related persons which would constitute a "group" for purposes of Section 13(d) of the Securities Exchange Act of 1934, of beneficial ownership of shares of the issued and outstanding capital stock of the Corporation possessing more than 50% of the voting power to elect members of the Board of Directors. "Closing Price of the Corporation's Common Stock" means for any day the last reported sales price, regular way on such day, or, if no reported sale takes place on such day, the average of the reported closing bid and asked prices on such day, regular way, in either case as reported on the NASDAQ National Market, or such other national securities exchange on which the Common Stock may then be primarily traded. "Common Stock" means the Common Stock, par value $0.01 per share, of the Corporation whether authorized, issued and outstanding or held in the Corporation's treasury. "Event of Default" means the occurrence and continuation after written notice thereof to the Corporation from any Holder of outstanding shares of this series of any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree, or order of any court of any order, sale or regulation of any administrative or governmental body) and which Event of Default has not been waived in writing by the Holders of at least 66-2/3% of the outstanding shares of this Series: (a) default in the payment of the Redemption Price, which continues for 5 days after any Redemption Date; (b) failure on the part of the Corporation duly to observe or perform any of the agreements of the Corporation set forth in the terms of this Series; (c) the Corporation shall commence a voluntary case or other proceeding seeking liquidation reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or shall make a general assignment for the benefit of the creditors; or (d) an involuntary case or other proceeding shall be commenced against the Corporation seeking liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, and such involuntary case or other proceeding shall remain undiscussed and unstayed for a period of sixty consecutive days; "Holder" means Millipore Corporation or any one or more of its transferees or assignees. "NASDAQ" means the National Association of Securities Dealers, Inc. Automated Quotations System or any successor thereto. "Notice" means any notice as provided for herein which shall be in writing and shall be deemed to have been sufficiently given to the Holder: (a) if delivered by courier service, on the date delivered; (b) if transmitted by facsimile, on the date transmitted; or (c) if mailed, three (3) business days after being deposited in the United States mail, postage prepaid, by certified mail with return receipt requested and addressed to it at the address as the Holder may specify by notice to the Corporation given in accordance herewith. "Redemption Date" means the first through the fourth anniversary date of the date of issuance of the shares of this Series. "Redemption Price" means (i) with respect to any redemption pursuant to Sections 3(a) and 4(a), the applicable amount set forth in such Sections. "Special Event" means any one of the events described in Subsection 3(b)(i) or 3(c)(i). 8. Waiver and Amendment. The Corporation's compliance with any term of this Series or any of the Holders rights hereunder may be waived by the vote or written action of the Holders of at least 66-2/3% of the outstanding shares of this Series. So long as any of the shares of this Series are outstanding, any term or provision hereof may be amended, modified or deleted by action of the Board of Directors with the vote or written consent of the Holders of at least 662/3% of all the shares of this Series at the time outstanding, voting together as a class with all other Preferred Stock then outstanding and affected in the same manner, and neither the holders of Common Stock nor any other class or series of the Corporation's capital stock shall be entitled to vote thereon nor shall their consent be required. IN WITNESS WHEREOF, said PerSeptive Biosystems, Inc. has caused its corporate seal to be hereunto affixed and this Certificate to be executed and attested, this 19th day of August, 1994. PERSEPTIVE BIOSYSTEMS, INC. By: /s/ Noubar Afeyan [Corporate Seal] ATTEST: /s/ Rufus C. King Assistant Secretary -----END PRIVACY-ENHANCED MESSAGE-----