Exhibit 4.3
CERTIFICATE OF DESIGNATION
of
10.00% SERIES E CUMULATIVE CONVERTIBLE PREFERRED STOCK
of
GOODRICH PETROLEUM CORPORATION
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
Goodrich Petroleum Corporation, a corporation organized and existing under the General Corporation Law of the State of Delaware (the “Corporation” or the “Company”), in accordance with the provisions of Section 103 thereof, DOES HEREBY CERTIFY:
That pursuant to the authority vested in the Board of Directors of the Corporation (the “Board of Directors”) by the provisions of Article IV of the Restated Certificate of Incorporation of the Corporation, as amended through the date hereof (the “Charter”), the Board of Directors on November 5, 2015 adopted resolutions authorizing the issuance of a new series of Preferred Stock of the Corporation, and
That in accordance with the provisions of Article IV of the Charter, the Board on December 15, 2015 adopted the following resolution creating a series of 3,648,803 depositary shares each representing a 1/1000th ownership interest in a share of Preferred Stock designated as “10.00% Series E Cumulative Convertible Preferred Stock”:
RESOLVED, that a series of Preferred Stock, par value $1.00 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:
10.00% Series E Cumulative Convertible Preferred Stock
| Section 1. | Number of Shares and Designation. |
There shall be a series of Preferred Stock of the Corporation that shall be designated as its “10.00% Series E Cumulative Convertible Preferred Stock,” and the number of depositary shares constituting such series shall be 3,648,803, each representing a 1/1000th ownership interest in a share of such Preferred Stock. Such number of depositary shares may be increased or decreased by resolution of the Board of Directors; provided, however, that no decrease shall reduce the number of depositary shares of such series to less than the number of depositary shares then issued and outstanding plus the number of depositary shares issuable upon exercise of outstanding rights, options or warrants or upon conversion of outstanding securities issued by the Corporation.
| Section 2. | Definitions. |
“Board of Directors” shall mean the Board of Directors of the Corporation or any committee authorized by such Board of Directors to perform any of its responsibilities with respect to the Series E Preferred Shares.
“Business Day” shall mean any day other than a Saturday, Sunday or a day on which state or federally chartered banking institutions in New York, New York or Houston, Texas are not required to be open.
“Capital Stock” shall mean any equity security of the Corporation, including the Common Stock and the Preferred Stock of the Corporation.
“Cash Amount” shall have the meaning set forth in Section 6(d)(5)(iii)(A) of this Certificate.
“Cash Settlement Averaging Period” shall have the meaning set forth in Section 6(d)(4)(v) of this Certificate.
“Certificate” or “Certificate of Designation” shall mean this Certificate of Designation.
A “Change of Control” shall be deemed to have occurred at such time after the original issuance of the Series E Preferred Stock when each of the following have occurred and are continuing:
(i) the acquisition by any person, including any syndicate or group deemed to be a “person” under Section 13(d)(3) of the Exchange Act, of beneficial ownership (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, through a purchase, merger or other acquisition transaction or series of purchases, mergers or other acquisition transactions of stock of the Company entitling that person to exercise more than 50% of the total voting power of all stock of the Company entitled to vote generally in elections of directors (except that such person will be deemed to have beneficial ownership of all securities that such person has the right to acquire, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition); and
(ii) following the closing of any transaction referred to in clause (i) above, neither the Company nor the acquiring or surviving entity has a class of common securities (or American Depositary Receipts (“ADRs”) representing such securities) listed on the NYSE, the NYSE MKT, or the NASDAQ, or listed or quoted on an exchange or quotation system that is a successor to the NYSE, NYSE MKT or NASDAQ.
“Closing Sale Price” shall mean, with regard to shares of the Common Stock, on any date, the closing sale price per share (or if no closing sale price is reported, the average of the closing bid and ask prices or, if more than one in either case, the average of the average closing bid and the average closing ask prices) on such date as reported on the principal United States national or regional securities exchange on which shares of the Common Stock are traded or, if shares of the Common Stock are not listed on a United States national or regional securities exchange, as reported by the NYSE or by the OTC Markets Group, or in the absence of such a quotation, the Corporation shall determine the closing sale price, in good faith, on the basis of such quotations and other information as it considers, in its reasonable judgment, appropriate.
“Commission” shall mean the United States Securities and Exchange Commission and any governmental body that may succeed to its functions under the Exchange Act or the Securities Act.
“Common Stock” shall mean the common stock, par value $0.20 per share, of the Corporation.
“Common Stock Record Date” shall have the meaning set forth in Section 7(g) of this Certificate.
“Company Conversion Option” shall have the meaning set forth in Section 6(b) of this Certificate.
“Company Conversion Option Date” shall have the meaning set forth in Section 6(b) of this Certificate.
“Conversion Date” shall have the meaning set forth in Section 6(c) of this Certificate.
“Conversion Notice” shall have the meaning set forth in Section 6(c) of this Certificate.
“Conversion Price” shall mean, as of any day, a per share amount equal to the quotient of the liquidation preference amount of a share of Series E Preferred Shares on that day divided by the Conversion Rate on such day.
“Conversion Rate” shall have the meaning set forth in Section 6(a) of this Certificate.
“Conversion Retraction Period” shall have the meaning set forth in Section 6(d)(4)(iii) of this Certificate.
“Conversion Right” shall have the meaning set forth in Section 6(a) of this Certificate.
“Conversion Value” shall mean an amount equal to the product of the applicable Conversion Rate (as adjusted) multiplied by the arithmetic average of the Closing Sale Prices of the Common Stock during the Cash Settlement Averaging Period.
“Corporation” or “Company” shall have the meaning set forth in the preamble to this Certificate.
“Current Market Price” shall have the meaning set forth in Section 7(g) of this Certificate.
“Distributed Assets” shall have the meaning set forth in Section 7(d)(1) of this Certificate.
“Dividend Payment Date” shall mean, with respect to each Dividend Period, the fifteenth day of March, June, September and December of each year, commencing on December 18, 2015.
“Dividend Period” shall mean the respective quarterly periods commencing on and including the fifteenth day of March, June, September and December of each year and ending on and including the day preceding the first day of the next succeeding Dividend Period (other than the initial Dividend Period, which shall commence on the Original Issue Date).
“DTC” shall mean The Depository Trust Company.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Expiration Time” shall have the meaning set forth in Section 7(f) of this Certificate.
“Fair Market Value” shall have the meaning set forth in Section 7(g) of this Certificate.
“Fundamental Change” shall have the meaning set forth in Section 12(j) of this Certificate.
“Fundamental Change Repurchase Date” shall have the meaning set forth in Section 12(h) of this Certificate.
“Fundamental Change Repurchase Price” shall have the meaning set forth in Section 12(a) of this Certificate.
“Holder” or “holder” shall mean a holder of record of the Series E Preferred Stock.
“Junior Stock” shall mean all classes of common stock of the Company and each other class of Capital Stock or series of Preferred Stock established after the Original Issue Date by the Board of Directors the terms of which do not expressly provide that such class or series ranks senior to or on parity with the Series E Preferred Stock as to dividend rights or rights upon the liquidation, winding up or dissolution of the Company.
“Liquidation Preference Conversion Settlement Election” shall have the meaning set forth in Section 6(d) of this Certificate.
“Market Value” shall mean the average of the per share volume-weighted average prices of the Common Stock for each day during a five consecutive Trading Day period ending immediately prior to the date of determination, as displayed under the heading “Bloomberg VWAP” on Bloomberg page “GDP <equity> AQR” (or its equivalent successor if such page is not available) in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on each such Trading Day (or if such volume-weighted average price is unavailable on any such Trading Day, the Closing Sale Price shall be used for such Trading Day). The per share volume-weighted average price on each such Trading Day shall be determined without regard to after hours trading or any other trading outside of the regular trading session trading hours.
“Nasdaq” shall mean the NASDAQ Stock Market.
“Notice” shall have the meaning set forth in Section 6(b) of this Certificate.
“NYSE” shall mean the New York Stock Exchange.
“Officer” shall mean the Chairman of the Board of Directors, any Vice Chairman of the Board of Directors, the President, any Vice President, the Treasurer, the Secretary or any Assistant Secretary of the Corporation.
“Original Issue Date” shall mean December 18, 2015.
“Parity Preferred” shall have the meaning set forth in Section 5 of this Certificate.
“Parity Stock” shall mean the Series B Preferred Stock, the Series C Preferred Stock, the Series D Preferred Stock and any equity securities, including Preferred Stock, that the Company may authorize or issue, the terms of which expressly provide that such securities shall rank equally with the Series E Preferred Stock with respect to payment of dividends and distribution of assets upon the liquidation, winding up or dissolution of the Corporation.
“Person” shall mean any individual, corporation, general or limited partnership, limited liability partnership, joint venture, association, joint-stock company, trust, limited liability company, unincorporated organization or government or any agency or political subdivision thereof.
“Preferred Dividend Default” shall have the meaning set forth in Section 5(b) of this Certificate.
“Preferred Directors” shall have the meaning set forth in Section 5(b) of this Certificate.
“Preferred Stock” shall mean the preferred stock, par value $1.00 per share, of the Corporation.
“Record Date” shall mean the March 1, June 1, September 1 or December 1 next preceding the applicable Dividend Payment Date.
“Reference Period” shall have the meaning set forth in Section 7(d)(2) of this Certificate.
“Repurchase Right” shall have the meaning set forth in Section 12(a) of this Certificate.
“Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Senior Stock” shall mean each class of Capital Stock or series of Preferred Stock established after the Original Issue Date by the Board of Directors the terms of which expressly provide that such class or series shall rank senior to the Series E Preferred Stock as to dividend rights or rights upon the liquidation, winding up or dissolution of the Company.
“Series B Preferred Stock” shall mean the 5.375% Series B Cumulative Convertible Preferred Stock, par value $1.00 per share, of the Corporation outstanding on the Original Issue Date.
“Series C Preferred Stock” shall mean the 10.00% Series C Cumulative Preferred Stock, par value $1.00 per share, of the Corporation outstanding on the Original Issue Date.
“Series D Preferred Stock” shall mean the 9.75% Series D Cumulative Preferred Stock, par value $1.00 per share, of the Corporation outstanding on the Original Issue Date.
“Series E Preferred Shares” or “Series E Preferred Stock” shall mean the depositary shares each representing a 1/1000th ownership interest in a share of 10.00% Series E Cumulative Convertible Preferred Stock, par value $1.00 per share, of the Corporation.
“Settlement Notice Period” shall have the meaning set forth in Section 6(d) of this Certificate.
“Spin-Off” shall have the meaning set forth in Section 7(d)(3) of this Certificate.
“Trading Day” shall mean a day during which trading in securities generally occurs on the New York Stock Exchange or, if the Common Stock is not listed on the New York Stock Exchange, on the principal other United States national or regional securities exchange on which the Common Stock is then listed or, if the Common Stock is not listed on a United States national or regional securities exchange, on Nasdaq or, if the Common Stock is not quoted on Nasdaq, on the principal other market on which the Common Stock is then traded.
“Transfer Agent” shall mean American Stock Transfer & Trust Company, LLC, the Company’s duly appointed transfer agent, registrar and conversion and dividend disbursing agent for the Series E Preferred Stock. The Company may, in its sole discretion, remove the Transfer Agent with ten (10) days’ prior notice to the Transfer Agent; provided, however, that the Company shall appoint a successor Transfer Agent who shall accept such appointment prior to the effectiveness of such removal.
“Trigger Event” shall have the meaning set forth in Section 7(d)(4) of this Certificate.
“Undisrupted Trading Day” shall mean a Trading Day on which trading of shares of Common Stock does not experience any of the following for more than one half hour period in the aggregate on any scheduled Trading Day:
| (1) | any suspension of or limitation imposed on the trading of shares of Common Stock on any United States national or regional securities exchange or association or over-the-counter market; |
| (2) | any event (other than an event listed in clause (3) below) that disrupts or impairs the ability of market participants in general to (i) effect transactions in or obtain market values for shares of Common Stock on any relevant United States national or regional securities exchange or association or over-the-counter market or (ii) effect transactions in or obtain market values for futures or options contracts relating to shares of Common Stock on any relevant United States national or regional securities exchange or association or over-the-counter market; or |
| (3) | any relevant United States national or regional securities exchange or association or over-the-counter market on which shares of Common Stock trade closes on any Trading Day prior to its scheduled closing time unless such earlier closing time is announced by the exchange at least one hour prior to the earlier of (i) the actual closing time for the regular trading session on such exchange or (ii) the submission deadline for orders to be entered into the exchange for execution on such Trading Day, |
if, in the case of clauses (1) and (2), the Board of Directors determines that the effect of such suspension, limitation, disruption or impairment is material.
| Section 3. | Dividends and Distributions. |
(a) Subject to the preferential rights of any other class or series of Capital Stock of the Corporation ranking senior to the Series E Preferred Shares as to dividends, the holders of the Series E Preferred Shares shall be entitled to receive, when, as and if declared by the Board of Directors, out of funds legally available for the payment of dividends, cumulative dividends at the rate of 10.00% per annum of the $10.00 liquidation preference per share of the Series E Preferred Stock (equivalent to the annual rate of $1.00 per share of the Series E Preferred Stock). Such dividends shall accumulate and be cumulative from and including the most recent Dividend Payment Date or, if no dividends have been paid on the Series E Preferred Stock, from and including the Original Issue Date, and shall be payable quarterly in arrears on each Dividend Payment Date, commencing March 15, 2016; provided, however, that if any Dividend Payment Date is not a Business Day, then the dividend which would otherwise have been payable on such Dividend Payment Date may be paid on the next succeeding Business Day with the same force and effect as if paid on such Dividend Payment Date, and no interest or additional dividends or other sums shall accrue on the amount so payable from such Dividend Payment Date to such next succeeding Business Day. The amount of any dividend payable on the Series E Preferred Shares for each full Dividend Period shall be computed by dividing the annual dividend by four (4). The amount of any dividend payable on the Series E Preferred Shares for any partial Dividend Period, including the initial Dividend Period, shall be prorated and computed on the basis of a 360-day year consisting of twelve 30-day months. Dividends shall be payable to holders of record as they appear in the stockholder records of the Corporation at the close of business on the applicable Record Date.
(b) Except for dividends or other distributions payable with respect to any class or series of Capital Stock ranking senior to the Series E Preferred Stock as to dividend rights, no dividends or other distributions (other than dividends or other distributions payable solely in Common Stock or other Capital Stock ranking junior as to dividend rights to the Series E Preferred Stock) may be declared, paid or set apart for payment, and no purchases, redemptions or other acquisitions of shares of Common Stock or other Capital Stock ranking junior to the Series E Preferred Stock as to dividend rights may be made unless, in each of the foregoing instances, all accumulated and unpaid dividends (including the full dividend for the then current Dividend Period) on the Series E Preferred Stock shall have been paid or declared and set apart for payment.
(c) No dividends or other distributions (other than a dividend or other distribution payable solely in shares of Parity Stock or Junior Stock (in the case of Parity Stock) or Junior Stock (in the case of Junior Stock) and cash in lieu of fractional shares) may be declared, made or paid, or set apart for payment upon, any Parity Stock or Junior Stock, nor may any Parity Stock or Junior Stock be redeemed, purchased or otherwise acquired for any consideration (or any money paid to or made available for a sinking fund for the redemption of any Parity Stock or Junior Stock) by the Corporation or on its behalf (except by conversion into or exchange for shares of Parity Stock or Junior Stock (in the case of Parity Stock) or Junior Stock (in the case of Junior Stock)) unless, in each of the foregoing instances, all accumulated and unpaid dividends have been or contemporaneously are declared and paid, or are declared and a sum sufficient for the payment thereof is set apart for such payment, on the Series E Preferred Stock and any Parity Stock for all dividend payment periods terminating on or prior to the date of such declaration, payment, redemption, purchase or acquisition. Notwithstanding the preceding, if full dividends have not been paid on the Series E Preferred Stock and any Parity Stock, dividends may be declared and paid on the Series E Preferred Stock and such Parity Stock so long as the dividends are declared and paid pro rata so that the amounts of dividends declared per share on the Series E Preferred Stock and such Parity Stock shall in all cases bear to each other the same ratio that accumulated and unpaid dividends per share on the Series E Preferred Stock and such Parity Stock bear to each other.
(d) Notwithstanding anything contained herein to the contrary, dividends on the Series E Preferred Shares shall accumulate whether or not the Corporation has earnings, whether or not there are funds legally available for the payment of such dividends, and whether or not such dividends are declared.
(e) Holders of Series E Preferred Shares shall not be entitled to any dividend, whether payable in cash, property or shares of Capital Stock, in excess of full cumulative dividends on the Series E Preferred Shares as provided herein. Any dividend payment made on the Series E Preferred Shares shall first be credited against the earliest accumulated but unpaid dividends due with respect to such shares which remains payable. Accumulations of dividends on the Series E Preferred Shares shall not bear interest.
| Section 3A. | Method of Payment of Dividends. |
(a) Subject to the restrictions set forth herein, dividends on the Series E Preferred Stock may be paid, at the option of the Company:
(1) in cash;
(2) by delivery of shares of Common Stock; or
(3) through any combination of cash and Common Stock.
(b) If the Company elects to make any such payment, or any portion thereof, in shares of Common Stock, such shares shall be valued for such purpose, in the case of any dividend payment, at 95% of the Market Value as determined on the second Trading Day immediately prior to the Record Date for such dividend;provided that in no event shall such shares be valued less than $0.70 per share for such purpose.
(c) The Company shall make each dividend payment on the Series E Preferred Stock in cash, except to the extent the Company elects to make all or any portion of such payment in shares of the Common Stock. The Company shall give Holders notice of any such election and the portion of such payment that will be made in cash and the portion that will be made in Common Stock 20 Business Days prior to the Record Date for such dividend.
(d) Notwithstanding the foregoing, the Company shall not pay any portion of a dividend on the Series E Preferred Stock by delivery of Common Stock unless the Common Stock to be delivered as payment therefor is freely transferable under United States securities laws by the recipient without further action on its behalf, other than by reason of the fact that such recipient is the Company’s affiliate.
| Section 4. | Liquidation Preference. |
Upon any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation, after full distribution or payment shall be made to holders of the Series B Preferred Stock, the Series C Preferred Stock, the Series D Preferred Stock and any other class or series of Capital Stock ranking, as to liquidation rights, senior to the Series E Preferred Shares but before any distribution or payment shall be made to holders of shares of Common Stock or any other class or series of Capital Stock ranking, as to liquidation rights, junior to the Series E Preferred Shares, the holders of Series E Preferred Shares shall be entitled to be paid out of the assets of the Corporation legally available for distribution to its stockholders a liquidation preference of $10.00 per share, plus an amount equal to any accumulated and unpaid dividends to the date of payment (whether or not declared). In the event that, upon such voluntary or involuntary liquidation, dissolution or winding up, the available assets of the Corporation are insufficient to pay the full amount of the liquidating distributions on all outstanding Series E Preferred Shares and the corresponding amounts payable on all shares of other classes or series of Capital Stock ranking, as to liquidation rights, on a parity with the Series E Preferred Shares, then the holders of the Series E Preferred Shares and each such other class or series of shares of Capital Stock ranking, as to liquidation rights, on a parity with the Series E Preferred Shares, shall share ratably in any such distribution of assets in proportion to the full liquidating distributions to which they would otherwise be respectively entitled. Written notice of any such liquidation, dissolution or winding up of the Corporation, stating the payment date or dates when, and the place or places where, the amounts distributable in such circumstances shall be payable, shall be given by first class mail, postage pre-paid, not less than 30 nor more than 60 days prior to the payment date stated therein, to each holder of Series E Preferred Shares at the respective addresses of such holders as the same shall appear on the stock transfer records of the Corporation. After payment of the full amount of the liquidating distributions to which they are entitled, the holders of Series E Preferred Shares shall have no right or claim to any of the remaining assets of the Corporation. The consolidation or merger of the Corporation with or into any other Person, or the sale or other disposition of all or substantially all of the property and assets of the Corporation, shall not be deemed to constitute a liquidation, dissolution or winding up of the affairs of the Corporation for purposes of this Section 4.
| Section 5. | Voting Rights. |
(a) Holders of the Series E Preferred Shares shall not have any voting rights, except as provided by applicable law and as set forth in this Section 5.
(b) Whenever dividends on any Series E Preferred Shares shall be in arrears for six or more consecutive or non-consecutive Dividend Periods (a “Preferred Dividend Default”), the holders of such Series E Preferred Shares (voting as a single class with all other classes or series of Parity Stock upon which like voting rights have been conferred and are exercisable (“Parity Preferred”)) shall be entitled to vote for the election of a total of two additional directors of the Corporation (the “Preferred Directors”) at the next annual meeting of stockholders and at each subsequent meeting, until all dividends accumulated on such Series E Preferred Shares and Parity Preferred for the past dividend periods and the then current dividend period shall have been fully paid or declared and a sum sufficient for the payment thereof set aside for payment. In such case, the entire Board of Directors shall be increased by two directors. Notwithstanding the foregoing, if, prior to the election of any additional directors in the manner set forth herein, all accumulated dividends are paid on the Series E Preferred Shares and all Parity Preferred, no such additional directors shall be so elected. If and when all accumulated dividends shall have been paid on such Series E Preferred Shares and all Parity Preferred, the right of the holders of Series E Preferred Shares and the Parity Preferred to elect the Preferred Directors shall immediately cease (subject to revesting in the event of each and every Preferred Dividend Default), and the term of office of each Preferred Director so elected shall immediately terminate and the entire Board of Directors shall be reduced accordingly. So long as a Preferred Dividend Default shall continue, any vacancy in the office of a Preferred Director may be filled by written consent of the Preferred Director remaining in office, or if none remains in office, by a vote of the holders of record of a majority of the outstanding Series E Preferred Shares and Parity Preferred (voting as a single class). Each of the Preferred Directors shall be entitled to one vote on any matter.
(c) So long as any Series E Preferred Shares remain outstanding, the affirmative vote or consent of the holders of two-thirds of the Series E Preferred Shares, given in person or by proxy, either in writing or at a meeting (voting as a single class), shall be required to: (i) authorize or issue, or increase the authorized amount of, any class or series of Senior Stock or any security convertible into Senior Stock; or (ii) amend, alter or repeal the provisions of the Charter, or this Certificate, whether by merger, consolidation, sale or other disposition of all or substantially all of the Company’s property and assets or otherwise, so as to materially and adversely affect any right, preference, privilege or voting power of the Series E Preferred Shares. Holders of Series E Preferred Shares shall not be entitled to vote with respect to the authorization or issuance of, or any increase or decrease in the authorized amount of, any Parity Stock or Junior Stock.
(d) The voting provisions of this Section 5 shall not apply if, at or prior to the time when the act with respect to which such vote would otherwise be required shall be effected, (i) all outstanding Series E Preferred Shares are subject to the Company Conversion Option upon proper notice and sufficient Common Stock (or if the Corporation has elected to make the settlement in cash, sufficient funds) shall have been deposited in trust with the Transfer Agent to effect such Company Conversion Option, or (ii) a notice of redemption shall have been issued
pursuant to the provisions described under Section 15 below and funds sufficient to pay the redemption price, including accumulated and unpaid dividends, for all of such shares of Series E Preferred Stock called for redemption have been set aside for payment.
(e) For purposes of the foregoing provisions of this Section 5, each share of Series E Preferred Shares shall have one (1) vote per share, except that when any other series of Preferred Stock shall have the right to vote with the Series E Preferred Stock as a single class on any matter, then the Series E Preferred Stock and such other series of Preferred Stock shall have with respect to such matters one (1) vote per $50.00 of stated liquidation preference. For the avoidance of doubt, in those situations where the Series E Preferred Stock votes with any other series of Preferred Stock, including Series B Preferred Stock, which has a stated liquidation preference of $50.00 per share, and assuming a stated liquidation preference of the Series E Preferred Stock of $10.00, then each share of the Series E Preferred Stock would be entitled to 0.20 votes.
(f) The Company may, from time to time, without notice to or consent of the Series E Preferred Holders, issue additional shares of Series E Preferred Stock.
(g) For the purposes of this Section 5, the following shall not be deemed to materially and adversely affect the rights, preferences or voting powers of the Series E Preferred Holders:
(1) any filing with the Delaware Secretary of State by the Company, including in connection with a merger, consolidation or otherwise, in which (1) the Company is the surviving entity and the Series E Preferred Stock remain outstanding with the terms thereof materially unchanged in any respect adverse to the holders thereof; (2) the resulting, surviving or transferee entity is organized under the laws of any state and substitutes or exchanges the Series E Preferred Stock for other preferred equity or shares having preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends, qualifications and terms and conditions of redemption thereof identical to that of the Series E Preferred Stock (except for changes that do not materially and adversely affect the Series E Preferred Stock); or (3) upon effectiveness of such merger, consolidation or other transaction giving rise to the filing (and if such effectiveness occurs before April 10, 2018, a Change of Control shall have occurred on or prior to such effectiveness), the Series E Preferred Holders will be entitled to receive in exchange for their Series E Preferred Stock without further action by such holder cash consideration equal to the Fundamental Change Repurchase Price including all accumulated and unpaid dividends (whether or not declared) to, but not including, the date of such effectiveness and funds sufficient to pay the Fundamental Change Repurchase Price for all shares of Series E Preferred Stock will be set aside for payment.
| Section 6. | Conversion. |
(a)Conversion Rights.
(1) Subject to and upon compliance with the provisions of this Section 6, a holder of any share or shares of Series E Preferred Stock shall have the right, at its option, (unless, prior to the Conversion Date, the Company has provided or provides irrevocable notice
of its election to redeem the Series E Preferred Stock as described in Section 5 above, in which case such holder will only have the right with respect to the shares of Series E Preferred Stock not called for redemption (unless the Company defaults in the payment of the redemption price and accumulated and unpaid dividends in which case such holder will again have a conversion right with respect to the shares of Series E Preferred Stock subject to default in payment)) to convert all or any portion of such holder’s outstanding Series E Preferred Shares (the “Conversion Right”), subject to the conditions described below, into the number of fully paid and non-assessable shares of Common Stock initially at a conversion rate of 5.0 shares of Common Stock per $10.00 liquidation preference (the “Conversion Rate”), which is equivalent to an initial Conversion Price of approximately $2.00 per share of Common Stock (subject to adjustment in accordance with the provisions of Section 7 of this Certificate); provided, however, that the Corporation shall have the right to elect to deliver cash or a combination of cash and shares of Common Stock in lieu of shares of Common Stock in accordance with the provisions of Section 6(d) of this Certificate. Such holder shall surrender to the Corporation such Series E Preferred Shares to be converted in accordance with the provisions in paragraph (b) and (c) of this Section 6, as applicable.
(2) In connection with the conversion of any Series E Preferred Shares, no fractional shares of Common Stock shall be issued, but the Corporation shall pay a cash amount in lieu of issuing any fractional share in an amount equal to the fractional interest multiplied by the Closing Sale Price on the Trading Day immediately prior to the Conversion Date or the Company Conversion Option Date. If more than one Series E Preferred Share will be surrendered for conversion by the same holder at the same time, the number of full shares of Common Stock issuable on conversion of those Series E Preferred Shares shall be computed on the basis of the total number of Series E Preferred Shares so surrendered.
(3) A holder of Series E Preferred Shares is not entitled to any rights of a holder of shares of Common Stock until that holder has converted its Series E Preferred Shares, and only to the extent the Series E Preferred Shares are deemed to have been converted to shares of Common Stock in accordance with the provisions of this Section 6.
(4) The Corporation shall, prior to issuance of any Series E Preferred Shares hereunder, and from time to time as may be necessary, reserve and keep available, free from preemptive rights, out of its authorized but unissued Common Stock or its treasury shares, for the purpose of effecting the conversion of the Series E Preferred Shares, such number of its duly authorized Common Stock as shall from time to time be sufficient to effect the conversion of all Series E Preferred Shares then outstanding into such Common Stock at any time (assuming that, at the time of the computation of such number of Common Stock, all such Series E Preferred Shares would be held by a single holder). The Corporation covenants that all Common Stock which may be issued upon conversion of Series E Preferred Shares shall upon issue be fully paid and nonassessable and free from all liens and charges and not subject to any preemptive rights and, except as provided in Section 6(c), taxes with respect to the issue thereof. The Corporation further covenants that, if at any time the Common Stock shall be listed on the New York Stock Exchange or any other national securities exchange or quoted on the Nasdaq Global Market or Nasdaq Capital Market or any other automated quotation system, the Corporation will, if permitted by the rules of such exchange or automated quotation system, list and keep listed or quoted, so long as the Common Stock shall be so listed or quoted on such exchange or automated
quotation system, all Common Stock issuable upon conversion of the Series E Preferred Shares. Before the delivery of any securities that the Corporation shall be obligated to deliver upon conversion of the Series E Preferred Shares, the Corporation shall comply with all applicable federal and state laws and regulations that require action to be taken by the Corporation.
(b)Company Conversion Option.
(1) The Corporation shall have the option to cause all of the outstanding Series E Preferred Shares to be automatically converted at any time into that number of shares of Common Stock that are issuable at the then-prevailing Conversion Rate (“Company Conversion Option”). The Corporation may exercise the Company Conversion Option only if the Closing Sale Price equals or exceeds 150% of the Conversion Price of the Series E Preferred Shares for at least twenty (20) Trading Days in a period of thirty (30) consecutive Trading Days, ending on the Trading Day immediately prior to the Corporation’s issuance of a press release announcing the Company Conversion Option in accordance with this Certificate.
(2) To exercise the Company Conversion Option right set forth in this Section 6(b), the Corporation must issue a press release for publication through the Dow Jones News Service or Bloomberg Business News (or, if such organizations are not in existence at the time of issuance of such press release, such other news or press organization as is reasonably calculated to broadly disseminate the relevant information to the public) prior to the opening of business on the first Trading Day following any date on which the conditions set forth in Section 6(b)(1) shall have been satisfied, announcing such a Company Conversion Option. The Corporation shall also give notice by mail or by publication (with subsequent prompt notice by mail) to the holders of the Series E Preferred Shares (“Notice”) (not more than four (4) Trading Days after the date of the press release) of the Company Conversion Option announcing the Corporation’s intention to exercise the Company Conversion Option. The Corporation shall select a conversion date (the “Company Conversion Option Date”), which date shall be no more than five (5) days after the date on which the Corporation issues such press release. In addition to any information required by applicable law or regulation, the press release and Notice of a Company Conversion Option shall state, as appropriate: (i) the Company Conversion Option Date; (ii) the number of shares of Common Stock to be issued upon conversion of each Series E Preferred Share; (iii) the number of Series E Preferred Shares to be converted; and (iv) that dividends on the Series E Preferred Shares to be converted will cease to accumulate on the Company Conversion Option Date.
(3) In addition to the Company Conversion Option Right set forth in Section 6(b)(1), if there are fewer than 50,000 shares of Series E Preferred Stock outstanding, the Corporation shall have the option to cause all of the outstanding shares of the Series E Preferred Stock to be automatically converted into that number of shares of Common Stock equal to $10.00 (the liquidation preference per share of the Series E Preferred Stock) divided by the lesser of (i) the then-prevailing Conversion Price and (ii) the average of the daily Closing Sale Prices for the five Trading Day period ending on the second Trading Day immediately prior to the Company Conversion Option Date. The provisions of Section 6(b)(2) shall apply to the Company Conversion Option Right set forth in this Section 6(b)(3), provided, however, that (1) the Company Conversion Option Date shall not be fewer than fifteen (15) days nor more than thirty (30) days after the date on which the Corporation issues a press release announcing such
Company Conversion Option and (2) the press release and Notice of Company Conversion Option shall not state the number of shares of Common Stock to be issued upon conversion of each share of Series E Preferred Stock.
(4) Subject to the terms of Section 6(b)(8), upon exercise of the Company Conversion Option and surrender of the Series E Preferred Shares by a holder thereof, the Corporation shall issue and shall deliver or cause to be issued and delivered to such holder, or to such other person on such holder’s written order, (a) by book-entry transfer the number of validly issued, fully paid and non-assessable full shares of Common Stock to which a holder of the Series E Preferred Shares being converted, or a holder’s transferee, shall be entitled and (b) any fractional interest in respect of a share of Common Stock arising upon such conversion shall be settled as provided in Section 6(a)(2).
(5) Each conversion shall be deemed to have been made at the close of business on the Company Conversion Option Date so that the rights of the holder thereof as to the Series E Preferred Shares being converted will cease except for the right to receive the Conversion Value, and, if applicable, the Person entitled to receive shares of Common Stock shall be treated for all purposes as having become the record holder of those shares of Common Stock at that time.
(6) If the Series E Preferred Shares are held in global form, each holder of beneficial interests in such global security must comply with the procedures of DTC to convert such holder’s beneficial interests in respect of the Series E Preferred Shares evidenced by the global security.
(7) In case any Series E Preferred Shares are to be converted pursuant to this Section 6(b), such holder’s right to voluntarily convert its Series E Preferred Shares shall terminate at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Company Conversion Option Date.
(8) Notwithstanding any other provision contained herein, in connection with the Corporation’s election to exercise the Company Conversion Option under this Section 6(b), the Corporation shall have the right to elect to deliver to holders of shares of Series E Preferred Shares in lieu of shares of Common Stock, an equivalent amount of cash (subject to the existence of legally available funds) or a combination of cash and shares of Common Stock generally in accordance with Section 6(d) without reference to those provisions applicable solely to a Conversion Right, including, without limitation, Sections 6(d)(4)(ii) and 6(d)(4)(iii), which are only applicable to a Conversion Right.
(c)Conversion Right Procedures.
(1) In order to exercise a Conversion Right, a holder of the Series E Preferred Shares may convert any or all of such shares by surrendering to the Corporation at its principal office or at the office of the Transfer Agent, the certificate or certificates for the Series E Preferred Shares to be converted, if applicable, accompanied by a written notice stating that the holder of such Series E Preferred Shares elects to convert all or a specified whole number of those shares in accordance with this Section 6(c) and specifying the name or names in which the
holder wishes the certificate or certificates for the shares of Common Stock to be issued (“Conversion Notice”). In case the notice specifies that the shares of Common Stock are to be issued in a name or names other than that of the holder of the Series E Preferred Shares, the notice shall be accompanied by payment of all transfer taxes payable upon the issuance of shares of Common Stock in that name or names. Other than those taxes, the Corporation shall pay any documentary, stamp or similar issue or transfer taxes that may be payable in respect of any issuance or delivery of shares of Common Stock upon conversion of the Series E Preferred Shares.
(2) As promptly as practicable after the surrender of the certificate or certificates for the Series E Preferred Shares as aforesaid and as applicable, the receipt of the Conversion Notice and payment of all required transfer taxes, if any, or the demonstration to the Corporation’s satisfaction that those taxes have been paid, subject to the terms of Section 6(d), the Corporation shall issue and shall deliver or cause to be issued and delivered to such holder, or to such other Person on such holder’s written order (a) by book-entry transfer the number of validly issued, fully paid and non-assessable full shares of Common Stock to which the holder of the Series E Preferred Shares being converted, or the holder’s transferee, shall be entitled, (b) if less than the full number of Series E Preferred Shares evidenced by the surrendered certificate or certificates (if any) is being converted, a new certificate or certificates, of like tenor (if applicable), for the number of Series E Preferred Shares evidenced by the surrendered certificate or certificates, less the number of shares being converted and (c) any fractional interest in respect of a share of Common Stock arising upon such conversion shall be settled as provided in Section 6(a)(2).
(3) Each conversion shall be deemed to have been made at the close of business on the date of giving the notice and of surrendering the certificate or certificates representing the Series E Preferred Shares to be converted (the “Conversion Date”) so that the rights of the holder thereof as to the Series E Preferred Shares being converted shall cease except for the right to receive the Conversion Value, and, if applicable, the Person entitled to receive shares of Common Stock shall be treated for all purposes as having become the record holder of those shares of Common Stock at that time.
(4) If the Series E Preferred Shares are held in global form, each holder of beneficial interests in such global security must comply with the procedures of DTC to convert such holder’s beneficial interests in respect of the Series E Preferred Shares evidenced by the global security.
(5) If a holder of Series E Preferred Shares has exercised its right to require the Corporation to repurchase Series E Preferred Shares in accordance with Section 12 hereof, such holder’s Conversion Rights with respect to the Series E Preferred Shares so subject to repurchase shall expire at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Fundamental Change Repurchase Date, unless the Corporation defaults on the payment of the Fundamental Change Repurchase Price. If a holder of Series E Preferred Shares has submitted any such share for repurchase, such share may be converted only if such holder submits a notice of withdrawal as provided in Section 12(f) or complies with applicable DTC procedures.
(6) In the event that the Corporation exercises its right of redemption pursuant to Section 15 hereof, such holder’s Conversion Rights with respect to the Series E Preferred Shares so subject to redemption shall expire at 5:00 p.m., New York City time, on the Trading Day immediately preceding the date fixed for such redemption, unless the Corporation defaults on the payment of the applicable redemption price.
(d)Settlement Upon Conversion.
(1) Pursuant to the procedures set forth in this Section 6(d), upon a conversion, the Corporation shall have the right to deliver the Conversion Value, in lieu of shares of Common Stock, in cash (subject to the existence of legally available funds), or a combination of cash and shares of Common Stock.
(2) The Corporation can elect at any time to obligate itself to satisfy solely in cash (subject to the existence of legally available funds) the portion of the Conversion Value that is equal to 100% of the liquidation preference amount of the Series E Preferred Shares, with any remaining amount of the Conversion Value to be satisfied in cash (subject to the existence of legally available funds), shares of Common Stock or a combination of cash and shares of Common Stock, at the Corporation’s election. If the Corporation elects to do so, the Corporation shall notify holders of the Series E Preferred Shares at any time that the Corporation intends to settle in cash (subject to the existence of legally available funds) the portion of the Conversion Value that is equal to the liquidation preference amount of Series E Preferred Shares (the “Liquidation Preference Conversion Settlement Election”). This notification, once provided to holders of Series E Preferred Shares, shall be irrevocable and shall apply to future conversions of Series E Preferred Shares.
(3) Except to the extent the Corporation makes a Liquidation Preference Conversion Settlement Election, the Corporation shall not be required to notify holders of Series E Preferred Shares of the method for settling the Corporation’s conversion obligation relating to the Conversion Value or, if the Corporation shall have made a Liquidation Preference Conversion Settlement Election, the excess of the Corporation’s conversion obligation relating to the portion of the Conversion Value above the liquidation preference amount, if any, until the Series E Preferred Shares are submitted for conversion.
(4) If the Corporation receives a Conversion Notice from a holder of Series E Preferred Shares, the following procedures shall apply:
(i) Settlement of the Corporation’s conversion obligation that is equal to 100% of the liquidation preference amount of the Series E Preferred Shares shall be according to the Liquidation Preference Conversion Settlement Election, if any, already made.
(ii) The Corporation shall provide notice to any holders of Series E Preferred Shares exercising a Conversion Right, at any time on the date that is three (3) Trading Days following receipt of such holder’s Conversion Notice (the “Settlement Notice Period”), if the Corporation elects to settle its conversion obligation in any method other than the issuance solely of shares of Common Stock, and such notice shall set forth the method the Corporation chooses to settle its conversion obligation or, if the Corporation has made a Liquidation
Preference Conversion Settlement Election, the method the Corporation chooses to settle the excess of its conversion obligation. In addition, the Corporation shall indicate whether settlement of any excess conversion obligation will be solely in shares of Common Stock, solely in cash or a combination of cash and shares of Common Stock. If the Corporation elects to settle the conversion obligation in a combination of cash and shares of Common Stock, the Corporation shall specify the percentage of the conversion obligation relating to the Series E Preferred Shares surrendered for conversion that the Corporation shall pay in cash. Any portion of the Corporation’s conversion obligation which the Corporation has not decided to settle in cash shall be settled in shares of Common Stock (except that the Corporation shall pay cash in lieu of issuing any fractional shares). The Corporation shall treat all holders of Series E Preferred Shares converting on the same Trading Day in the same manner. The Corporation shall not, however, have any obligation to settle its conversion obligation, except to the extent the Corporation has made a Liquidation Preference Conversion Settlement Election, arising on different Trading Days in the same manner. For example, the Corporation may choose on one (1) Trading Date to settle in Common Stock only and choose on another Trading Day to settle in cash or a combination of Common Stock and cash.
No notice shall be required if the Corporation is settling its conversion obligation solely in Common Stock (other than cash in lieu of issuing fractional shares).
(iii) If the Corporation timely elects to pay cash for any portion of the conversion obligation, the holder of Series E Preferred Shares may retract its Conversion Notice at any time during the two (2) Trading Day period beginning on the Trading Day after the final day of the Settlement Notice Period (the “Conversion Retraction Period”); no such retraction may be made (and a Conversion Notice shall be irrevocable) if the Corporation does not elect to deliver cash in lieu of shares of Common Stock (other than cash in lieu of fractional shares) or if the Corporation has previously made a Liquidation Preference Conversion Settlement Election.
(iv) Settlement that is solely in shares of Common Stock of the Corporation’s conversion obligation (and cash in lieu of fractional shares) shall occur as soon as practicable, but in any event not more than three (3) Trading Days after the Conversion Date.
(v) Settlement of any portion of the Corporation’s conversion obligation, including the portion of the Conversion Value that is equal to 100% of the liquidation preference amount or the excess conversion obligation, in cash or in a combination of cash and shares of Common Stock (and cash in lieu of fractional shares) shall occur on the third Trading Day following the final day of the20-Trading Day period beginning on the Trading Day following the final Trading Day of the Conversion Retraction Period (the “Cash Settlement Averaging Period”).
(5)Settlement amounts shall be computed as follows:
(i) If the Corporation elects to satisfy the entire conversion obligation, including the Conversion Value that is equal to 100% of the liquidation preference amount and the excess conversion obligation, solely in shares of Common Stock (other than with respect to fractional shares), the Corporation shall deliver to the holder of Series E Preferred Shares, for each Series E Preferred Share, a number of shares of Common Stock equal to the applicable Conversion Rate (as adjusted).
(ii) If the Corporation elects to satisfy the entire conversion obligation, including the Conversion Value that is equal to 100% of the liquidation preference amount and the excess conversion obligation, solely in cash, the Corporation shall deliver to the holder of Series E Preferred Shares, for each Series E Preferred Share, cash in an amount equal to the Conversion Value.
(iii) If the Corporation elects to satisfy the conversion obligation, including the Conversion Value that is equal to 100% of the liquidation preference amount and the excess conversion obligation, in a combination of cash and shares of Common Stock, the Corporation shall deliver to the holder of Series E Preferred Shares, for Series E Preferred Share:
(A) a cash amount (the “Cash Amount”) (excluding any cash paid for fractional shares) equal to the sum of: (I) the product of $10.00 multiplied by the percentage of the liquidation preference amount to be satisfied in cash, plus (II) if greater than zero, the product of (i) the amount of cash that would be paid pursuant to Section 6(d)(5)(ii) above minus $10.00 and (ii) the percentage of the excess conversion obligation above the liquidation preference amount to be satisfied in cash; and
(B) a number of shares of Common Stock equal to the difference between: (I) the number of shares of Common Stock that would be issued pursuant to Section 6(d)(5)(i) above, minus (II) the number of shares of Common Stock equal to the quotient of (i) the Cash Amount divided by (ii) the arithmetic average of the Closing Sale Prices of shares of Common Stock during the Cash Settlement Averaging Period.
(6) If any Trading Day during a Cash Settlement Averaging Period is not an Undisrupted Trading Day, then determination of the Closing Sales Price for that day shall be delayed until the next Undisrupted Trading Day on which a pricing is not otherwise observed (that is, such day shall not count as one of the twenty (20) Trading Days that constitute the Cash Settlement Averaging Period). If this would result in a price being observed later than the eighth Trading Day after the last of the original twenty (20) Trading Days in the Cash Settlement Averaging Period, then the Board of Directors shall determine all prices for all delayed and undetermined prices on that eighth Trading Day based on its good faith estimate of the Common Stock’s value on that date.
(e)Payment of Dividends.
(1)Optional Conversion.
(i) If a holder of Series E Preferred Shares exercises a Conversion Right, upon delivery of the Series E Preferred Shares for conversion, those Series E Preferred Shares shall cease to accumulate dividends as of the end of the day immediately preceding the Conversion Date and the holder will not receive any cash payment representing accumulated and unpaid dividends on the Series E Preferred Shares, except in those circumstances set forth in this Section 6(e). Except as provided herein, the Corporation shall make no payment for accumulated and unpaid dividends, whether or not in arrears, on Series E Preferred Shares converted at a holder’s election pursuant to a Conversion Right, or for dividends on shares of Common Stock issued upon such conversion.
(ii) If the Corporation receives a Conversion Notice from a holder before the close of business on a Record Date, such holder shall not be entitled to receive any portion of the dividend payable on such converted Series E Preferred Shares on the corresponding Dividend Payment Date.
(iii) If the Corporation receives a Conversion Notice from a holder after the Record Date but prior to the corresponding Dividend Payment Date, such holder on the Record Date shall receive on that Dividend Payment Date accumulated dividends on those Series E Preferred Shares, notwithstanding the conversion of those Series E Preferred Shares prior to that Dividend Payment Date, because that holder shall have been the holder of record on the corresponding Divided Record Date. However, at the time that such holder surrenders its Series E Preferred Shares for conversion, such holder shall pay to the Corporation an amount equal to the dividend that has accumulated that will be paid on the related Dividend Payment Date.
(iv) A holder of Series E Preferred Shares on a Record Date who exercises its Conversion Right and converts such Series E Preferred Shares into Common Stock on or after the corresponding Dividend Payment Date shall be entitled to receive the dividend payable on such Series E Preferred Shares on such Dividend Payment Date, and the converting holder need not include payment of the amount of such dividend upon surrender for conversion of Series E Preferred Shares.
(v) If the Corporation receives a Conversion Notice on or before the close of business on a Record Date or following such Record Date but before the Dividend Payment Date therefor, and the settlement date for any shares of Common Stock to be issued upon such conversion is after the close of business on the record date for the payment of dividends for the corresponding period on such Common Stock, such holder shall be entitled to receive such Common Stock dividends upon the next payment date of dividends on the Common Stock as if it were the holder of such Common Stock on such record date.
(2)Company Conversion Option.
(i) If the Corporation exercises the Company Conversion Option, whether the Company Conversion Option Date is prior to, on or after the Record Date for the current Dividend Period, all accumulated and unpaid dividends which are in arrears as of the Company Conversion Option Date shall be payable to the holder of the converted shares.
(ii) If the Corporation exercises the Company Conversion Option and the Company Conversion Option Date is a date that is prior to the close of business on any Record Date, the holder shall not be entitled to receive any portion of the dividend payable for such period on such converted shares on the corresponding Dividend Payment Date.
(iii) If the Corporation exercises the Company Conversion Option and the Company Conversion Option Date is a date that is on, or after the close of business on, any Record Date and prior to the close of business on the corresponding Dividend Payment Date, all dividends, including accumulated and unpaid dividends, whether or not in arrears, with respect to the Series E Preferred Shares called for conversion on such date, shall be payable on such Dividend Payment Date to the record holder of such shares on such Record Date.
| Section 7. | Adjustment of Conversion Rate. |
(a) In case the Corporation shall, at any time or from time to time after the Original Issue Date while any Series E Preferred Shares are outstanding, issue Common Stock as a dividend or distribution to all or substantially all holders of Common Stock, then the Conversion Rate in effect immediately prior to the close of business on the Common Stock Record Date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction:
(1) the numerator of which shall be the sum of the total number of shares of Common Stock outstanding at the close of business on such Common Stock Record Date and the total number of shares of Common Stock constituting such dividend or other distribution; and
(2) the denominator of which shall be the number of shares of Common Stock outstanding at the close of business on such Common Stock Record Date.
Such increase shall become effective immediately prior to the opening of business on the day following the Common Stock Record Date fixed for such determination. If any dividend or distribution of the type described in this Section 7(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(b) In case the Corporation shall, at any time or from time to time after the Original Issue Date while any Series E Preferred Shares are outstanding, subdivide, reclassify or split its outstanding shares of Common Stock into a greater number of shares of Common Stock, the Conversion Rate in effect immediately prior to the opening of business on the day following the day upon which such subdivision, reclassification or split becomes effective shall be proportionately increased, and, conversely, in case the Corporation shall, at any time or from time to time after the Original Issue Date while any of the Series E Preferred Shares are outstanding, combine or reclassify its outstanding shares of Common Stock into a smaller number of shares of Common Stock, the Conversion Rate in effect immediately prior to the opening of business on the day following the day upon which such combination or reclassification becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately prior to the opening of business on the day following the day upon which such subdivision, reclassification, split or combination becomes effective, so that the holder of any Series E Preferred Share thereafter surrendered for conversion shall be entitled to receive that number of shares of Common Stock which it would have received had such Series E Preferred Share been converted immediately prior to the happening of such event adjusted as a result of such event.
(c) In case the Corporation shall, at any time or from time to time after the Original Issue Date while any Series E Preferred Shares are outstanding, issue rights or warrants for a period expiring within sixty (60) days to all or substantially all holders of its outstanding Common Stock entitling them to subscribe for or purchase Common Stock (or securities
convertible into or exchangeable or exercisable for Common Stock), at a price per share of Common Stock (or having a conversion, exchange or exercise price per share of Common Stock) less than the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the date of the announcement by public notice of such issuance or distribution (treating the conversion, exchange or exercise price per share of Common Stock of the securities convertible, exchangeable or exercisable into Common Stock as equal to (x) the sum of (i) the price for a unit of the security convertible into or exchangeable or exercisable for Common Stock and (ii) any additional consideration initially payable upon the conversion of or exchange or exercise for such security into Common Stock divided by (y) the number of shares of Common Stock initially underlying such convertible, exchangeable or exercisable security), then the Conversion Rate shall be increased by multiplying the Conversion Rate in effect at the opening of business on the date after such date of announcement by a fraction:
(1) the numerator of which shall be the number of shares of Common Stock outstanding at the close of business on the date of announcement, plus the total number of additional shares of Common Stock so offered for subscription or purchase (or into which the convertible, exchangeable or exercisable securities so offered are convertible, exchangeable or exercisable); and
(2) the denominator of which shall be the number of shares of Common Stock outstanding on the close of business on the date of announcement, plus the number of shares of Common Stock (or convertible, exchangeable or exercisable securities) which the aggregate offering price of the total number of shares of Common Stock (or convertible, exchangeable or exercisable securities) so offered for subscription or purchase (or the aggregate conversion, exchange or exercise price of the convertible, exchangeable or exercisable securities so offered) would purchase at such Closing Sale Price of the Common Stock.
Such increase shall become effective immediately prior to the opening of business on the day following the Common Stock Record Date for such determination. To the extent that shares of Common Stock (or securities convertible, exchangeable or exercisable into shares of Common Stock) are not delivered pursuant to such rights or warrants, upon the expiration or termination of such rights or warrants, the Conversion Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of the delivery of only the number of shares of Common Stock (or securities convertible, exchangeable or exercisable into shares of Common Stock) actually delivered. In the event that such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if the Common Stock Record Date fixed for the determination of stockholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the holders to subscribe for or purchase shares of Common Stock at less than such Closing Sale Price, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received for such rights or warrants, the value of such consideration if other than cash, to be determined by the Board of Directors.
(d) (1) In case the Corporation shall, at any time or from time to time after the Original Issue Date while any Series E Preferred Shares are outstanding, by dividend or otherwise, distribute to all or substantially all holders of its outstanding shares of Common Stock
(including any such distribution made in connection with a consolidation or merger in which the Corporation is the continuing corporation and the shares of Common Stock are not changed or exchanged), shares of its Capital Stock, evidences of its indebtedness or other assets, including securities (including capital stock of any subsidiary of the Corporation), but excluding (i) dividends or distributions of Common Stock referred to in Section 7(a), (ii) any rights or warrants referred to in Section 7(c), (iii) dividends and distributions paid exclusively in cash referred to in Section 7(e) and (iv) dividends and distributions of stock, securities or other property or assets (including cash) in connection with the reclassification, change, merger, consolidation, sale or other disposition to which Section 8 applies (such capital stock, evidence of its indebtedness, other assets or securities being distributed hereinafter in this Section 7(d) called the “Distributed Assets”), then, in each such case, subject to paragraphs (D) and (E) of this Section 7(d), the Conversion Rate shall be increased by multiplying the Conversion Rate in effect immediately prior to the close of business on the Common Stock Record Date with respect to such distribution by a fraction:
(i) the numerator of which shall be the Current Market Price; and
(ii) the denominator of which shall be such Current Market Price, less the Fair Market Value on such date of the portion of the Distributed Assets so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding on such Record Date) on such date.
Such increase shall become effective immediately prior to the opening of business on the day following the Common Stock Record Date for such distribution. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(2) If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 7(d) by reference to the actual or when issued trading market for any Distributed Assets comprising all or part of such distribution, it must in doing so consider the prices in such market over the same period (the “Reference Period”) used in computing the Current Market Price pursuant to this Section 7(d) to the extent possible, unless the Board of Directors determines in good faith that determining the Fair Market Value during the Reference Period would not be in the best interest of the holders of the Series E Preferred Shares.
(3) In the event any such distribution consists of shares of capital stock of, or similar equity interests in, one or more of the Corporation’s subsidiaries (a “Spin Off”), the Fair Market Value of the securities to be distributed shall equal the average of the Closing Sale Prices of such securities for the five consecutive Trading Days commencing on and including the sixth Trading Day of those securities after the effectiveness of the Spin Off, and the Current Market Price shall be measured for the same period. In the event, however, that an underwritten initial public offering of the securities in the Spin Off occurs simultaneously with the Spin Off, Fair Market Value of the securities distributed in the Spin Off shall mean the initial public offering price of such securities and the Current Market Price shall mean the Closing Sale Price for the Common Stock on the same Trading Day.
(4) Rights or warrants distributed by the Corporation to all holders of the outstanding shares of Common Stock entitling them to subscribe for or purchase equity securities of the Corporation (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (“Trigger Event”), (x) are deemed to be transferred with such shares of Common Stock, (y) are not exercisable and (z) are also issued in respect of future issuances of shares of Common Stock shall be deemed not to have been distributed for purposes of this Section 7(d) (and no adjustment to the Conversion Rate under this Section 7(d) shall be required) until the occurrence of the earliest Trigger Event. If such right or warrant is subject to subsequent events, upon the occurrence of which such right or warrant shall become exercisable to purchase different Distributed Assets, or entitle the holder to purchase a different number or amount of the foregoing Distributed Assets or to purchase any of the foregoing Distributed Assets at a different purchase price, then the occurrence of each such event shall be deemed to be the date of issuance and Common Stock Record Date with respect to a new right or warrant (and a termination or expiration of the existing right or warrant without exercise by the holder thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto, that resulted in an adjustment to the Conversion Rate under this Section 7(d):
(i) in the case of any such rights or warrants which shall all have been repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share repurchase price received by a holder of shares Common Stock with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Common Stock as of the date of such repurchase; and
(ii) in the case of such rights or warrants which shall have expired or been terminated without exercise, the Conversion Rate shall be readjusted as if such rights and warrants had never been issued.
(5) For purposes of this Section 7(d) and Section 7(a), Section 7(b) and Section 7(c), any dividend or distribution to which this Section 7(d) is applicable that also includes (x) shares of Common Stock, (y) a subdivision, split or combination of shares of Common Stock to which Section 7(b) applies or (z) rights or warrants to subscribe for or purchase shares of Common Stock to which Section 7(c) applies (or any combination thereof), shall be deemed instead to be:
(i) a dividend or distribution of the evidences of indebtedness, assets, shares of capital stock, rights or warrants, other than such shares of Common Stock, such subdivision, split or combination or such rights or warrants to which Section 7(a), Section 7(b) and Section 7(c) apply, respectively (and any Conversion Rate adjustment required by this Section 7(d) with respect to such dividend or distribution shall then be made), immediately followed by
(ii) a dividend or distribution of such shares of Common Stock, such subdivision, split or combination or such rights or warrants (and any further Conversion Rate increase required by Section 7(a), Section 7(b) and Section 7(c) with respect to such dividend or distribution shall then be made), except:
(A) the Common Stock Record Date of such dividend or distribution shall be substituted as (x) “the date fixed for the determination of stockholders entitled to receive such dividend or other distribution,” “Common Stock Record Date fixed for such determinations” and “Common Stock Record Date” within the meaning of Section 7(a), (y) “the day upon which such subdivision or split becomes effective” or “the day upon which such combination becomes effective” (as applicable) within the meaning of Section 7(b), and (z) as “the Common Stock Record Date fixed for the determination of the stockholders entitled to receive such rights or warrants” and such “Common Stock Record Date” within the meaning of Section 7(c); and
(B) any reduction or increase in the number of shares of Common Stock resulting from such subdivision, split or combination (as applicable) shall be disregarded in connection with such dividend or distribution.
(e) In case the Corporation shall, at any time or from time to time after the Original Issue Date while any Series E Preferred Shares are outstanding, by dividend or otherwise, distribute to all or substantially all holders of its outstanding shares of Common Stock during any quarterly fiscal period, cash (including any quarterly cash dividends, but excluding any cash that is distributed upon a reclassification, change, merger, consolidation, sale or other disposition to which Section 8 applies or as part of a distribution referred to in Section 7(d)) then, and in each case, immediately after the close of business on such date, the Conversion Rate shall be adjusted based on the following formula:
CR1 = CRo x (SP/(SP-DI)) where,
(1) CRo = the Conversion Rate in effect immediately prior to the Common Stock Record Date for such distribution;
(2) CR1 = the Conversion Rate in effect immediately after the Common Stock Record Date for such distribution;
(3) SP = the average of the Closing Sale Price per share of Common Stock over the ten (10) consecutive Trading Day period prior to the Trading Day immediately preceding the earlier of the Common Stock Record Date or the ex-dividend date of such cash excess dividend or cash excess distribution; and
(4) DI = the amount in cash per share the Corporation distributes to holders of shares of Common Stock.
Such increase shall become effective immediately prior to the opening of business on the day following the Common Stock Record Date for such distribution. In the event that such distribution is not so made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such distribution had not been declared.
(f) In case the Corporation or any of its subsidiaries or employee benefit plans of the Corporation funded with shares of the Common Stock make purchases of Common Stock pursuant to a tender offer or exchange offer that involves an aggregate consideration that exceeds ten percent (10%) of the aggregate market value of the Common Stock on the expiration of such tender offer or exchange offer (the “Expiration Time”), the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the date of the Expiration Time by a fraction:
(1) the numerator of which shall be the sum of (x) the product of (i) the number of shares of Common Stock outstanding (excluding any tendered or exchanged shares) at the Expiration Time and (ii) the Current Market Price of the Common Stock at the Expiration Time, and (y) the Fair Market Value of the aggregate consideration payable to stockholders based on acceptance (up to any maximum specified in the terms of the tender offer or exchange offer) of all shares validly tendered and not withdrawn as of the Expiration Time; and
(2) the denominator of which shall be the product of the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time and the Current Market Price of the Common Stock at the Expiration Time.
Such increase (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Corporation or any other Person is obligated to purchase shares pursuant to any such tender offer or exchange offer, but the Corporation or such other Person does not effect any such purchases or all or a portion of such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such (or such portion of the) tender offer or exchange offer had not been made. If the application of this Section 7(f) to any tender offer or exchange offer would result in a decrease in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this Section 7(f).
(g) For purposes of Section 7 of this Certificate, the following terms shall have the meanings indicated:
“Current Market Price” on any date means the average of the daily Closing Sale Prices per share of Common Stock for the ten (10) consecutive Trading Days immediately prior to such date; provided, however, that if:
(1) the “ex” date (as hereinafter defined) for any event (other than the issuance or distribution requiring such computation of Current Market Price) that requires an adjustment to the Conversion Rate pursuant to Section 7(a), Section 7(b), Section 7(c), Section 7(d), Section 7(e) or Section 7(f) occurs during such ten consecutive Trading Days, the Closing Sale Price for each Trading Day prior to the “ex” date for such other event shall be adjusted by multiplying such Closing Sale Price by the same fraction by which the Conversion Rate is so required to be adjusted as a result of such other event;
(2) the “ex” date for any event (other than the issuance or distribution requiring such computation of Current Market Price) that requires an adjustment to the Conversion Rate pursuant to Section 7(a), Section 7(b), Section 7(c), Section 7(d), Section 7(e)
or Section 7(f) occurs on or after the “ex” date for the issuance or distribution requiring such computation and prior to the day in question, the Closing Sale Price for each Trading Day on and after the “ex” date for such other event shall be adjusted by multiplying such Closing Sale Price by the reciprocal of the fraction by which the Conversion Rate is so required to be adjusted as a result of such other event; and
(3) the “ex” date for the issuance or distribution requiring such computation is prior to the day in question, after taking into account any adjustment required pursuant to clause (i) or (ii) of this proviso, the Closing Sale Price for each Trading Day on or after such “ex” date shall be adjusted by adding thereto the amount of any cash and the Fair Market Value (as determined by the Board of Directors in a manner consistent with any determination of such value for purposes of Section 7(d), Section 7(e) or Section 7(f)) of the evidences of indebtedness, shares of capital stock or assets being distributed applicable to one share of Common Stock as of the close of business on the day before such “ex” date.
For purposes of any computation under this Section 7, if the “ex” date for any event (other than the tender offer requiring such computation) that requires an adjustment to the Conversion Rate pursuant to Section 7(a), Section 7(b), Section 7(c), Section 7(d), Section 7(e) or Section 7(f) occurs on or after the Expiration Time for the tender or exchange offer requiring such computation and prior to the day in question, the Closing Sale Price for each Trading Day on and after the “ex” date for such other event shall be adjusted by multiplying such Closing Sale Price by the reciprocal of the fraction by which the Conversion Rate is so required to be adjusted as a result of such other event. For purposes of this paragraph, the term “ex” date, when used:
(i) with respect to any issuance or distribution, means the first date on which the Common Stock trade regular way on the relevant exchange or in the relevant market from which the Closing Sale Price was obtained without the right to receive such issuance or distribution;
(ii) with respect to any subdivision, split or combination of Common Stock, means the first date on which the Common Stock trade regular way on such exchange or in such market after the time at which such subdivision, split or combination becomes effective; and
(iii) with respect to any tender offer or exchange offer, means the first date on which the Common Stock trade regular way on such exchange or in such market after the Expiration Time of such offer.
Notwithstanding the foregoing, whenever successive adjustments to the Conversion Rate are called for pursuant to this Section 7, such adjustments shall be made to the Current Market Price as may be necessary or appropriate to effectuate the intent of this Section 7 and to avoid unjust or inequitable results as determined in good faith by the Board of Directors.
“Fair Market Value” means the amount which a willing buyer would pay a willing seller in an arm’s length transaction (as determined by the Board of Directors, whose determination shall be made in good faith and, absent manifest error, shall be final and binding on holders of the Series E Preferred Shares).
“Common Stock Record Date” means, with respect to any dividend, distribution or other transaction or event in which the holders of Common Stock have the right to receive any cash, securities or other property or in which the Common Stock (or other applicable security) is exchanged for or converted into any combination of cash, securities or other property, the date fixed for determination of stockholders entitled to receive such cash, securities or other property (whether such date is fixed by the Board of Directors or by statute, contract or otherwise).
(h) The Corporation shall be entitled to make such additional increases in the Conversion Rate, in addition to those required by Section 7(a), Section 7(b), Section 7(c), Section 7(d), Section 7(e) or Section 7(f), if the Board of Directors determines that it is advisable, in order that any dividend or distribution of Common Stock, any subdivision, reclassification or combination of Common Stock or any issuance of rights or warrants referred to above, or any event treated as such for United States federal income tax purposes, shall not be taxable to the holders of Common Stock for United States federal income tax purposes or to diminish any such tax.
(i) To the extent permitted by law, the Corporation may, from time to time, increase the Conversion Rate for a period of at least twenty (20) Trading Days if the Board of Directors determines that such an increase would be in the Corporation’s best interests. Any such determination by Board of Directors shall be conclusive. The Corporation shall give holders of Series E Preferred Shares at least fifteen (15) Trading Days’ notice of any such increase in the Conversion Rate.
(j) The Corporation shall not adjust the Conversion Rate pursuant to this Section 7 to the extent that the adjustments would reduce the Conversion Price below the par value of the Common Stock. The Corporation shall not be required to make an adjustment in the Conversion Rate unless the adjustment would require a change of at least one percent (1.0%) in the Conversion Rate. However, any adjustments that are not required to be made because they would have required an increase or decrease of less than one percent (1.0%) shall be carried forward and taken into account in any subsequent adjustment of the Conversion Rate or in connection with any conversion of the Series E Preferred Stock. Except as described in this Section 7, the Corporation shall not adjust the Conversion Rate for any issuance of our shares of Common Stock or any securities convertible into or exchangeable or exercisable for its shares of Common Stock or rights to purchase its shares of Common Stock or such convertible, exchangeable or exercisable securities.
(k) In the event that at any time, as a result of an adjustment made pursuant to this Section 7, the holder of any Series E Preferred Shares thereafter surrendered for conversion shall become entitled to receive any shares of Capital Stock of the Corporation other than Common Stock into which the Series E Preferred Shares originally were convertible, the Conversion Rate of such other shares so receivable upon conversion of any such Series E Preferred Share shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to Common Stock contained in subparagraphs (a) through (m) of this Section 7, and any other applicable provisions of this Certificate with respect to the Common Stock shall apply on like or similar terms to any such other shares.
(l) To the extent the Corporation has a rights plan in effect upon conversion of the Series E Preferred Shares into shares of Common Stock, the holder will receive (except to the extent the Corporation settles its conversion obligations in cash), in addition to the shares of Common Stock, the rights under the rights plan unless the rights have separated from the shares of Common Stock prior to the time of conversion, in which case the Conversion Rate shall be adjusted at the time of separation as if the Corporation made a distribution referred to in Section 7(d) above (without regard to any of the exceptions there).
| Section 8. | Consolidation or Merger of the Corporation. |
If any of the following events occurs, namely:
(a) any reclassification or change of the outstanding shares of Common Stock (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination);
(b) any merger or consolidation of the Corporation with another Person as a result of which holders of Common Stock shall be entitled to receive shares of stock, other securities or other property or assets (including cash) with respect to or in exchange for such Common Stock; or
(c) any sale or other disposition of all or substantially all of the property and assets of the Corporation to any other Person as a result of which holders of Common Stock shall be entitled to receive shares of stock, other securities or other property or assets (including cash) with respect to or in exchange for such Common Stock;
then the Series E Preferred Shares shall be convertible into the kind and amount of shares of stock or other securities or other property or assets (including cash) which the holders of Series E Preferred Shares would have been entitled to receive upon such reclassification, change, merger, consolidation, sale or other disposition had such Series E Preferred Shares been converted into Common Stock immediately prior to such reclassification, change, merger, consolidation, sale or other disposition. In the event that holders of the Common Stock shall have the opportunity to elect the form of consideration to be received in such reclassification, change, merger, consolidation, sale or other disposition, then the Corporation shall make adequate provision whereby the holders of the Series E Preferred Stock shall have a reasonable opportunity to determine the form of consideration into which all of the Series E Preferred Stock, treated as a single class, shall be convertible from and after the effective date of such reclassification, change, merger, consolidation, sale or other disposition. Such determination shall be: (i) made by holders representing a majority of the Series E Preferred Shares participating in such determination; (ii) subject to any limitations to which all of the holders of Common Stock are subject, including, but not limited to, pro rata reductions applicable to any portion of the consideration payable in such transaction; and (iii) conducted in such a manner as to be completed by the date that is the earlier of (a) the deadline for elections to be made by holders of Common Stock and (b) two Trading Days prior to the anticipated effective date of such reclassification, change, merger, consolidation, sale or other disposition. If, in the case of any such reclassification, change, merger, consolidation, sale or other disposition, the stock or other securities and assets receivable thereupon by a holder of Common Stock includes shares of
stock or other securities or other property or assets of a Person other than the successor or purchasing Person, as the case may be, in such reclassification, change, merger, consolidation, sale or other disposition, then such other person shall execute such documentation as the Board of Directors shall reasonably consider necessary by reason of the foregoing to protect the interests of the holders of the Series E Preferred Shares. The Corporation shall cause notice of the execution of any such documentation to be mailed to each holder, at the address of such holder as it appears on the register of the Series E Preferred Shares maintained by the Transfer Agent, within twenty (20) days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such documentation. The above provisions of this Section 8 shall similarly apply to successive reclassifications, mergers, consolidations, sales or other dispositions. If this Section 8 applies to any event or occurrence, Section 7 shall not apply however, the provisions of this Section 8 shall not limit the rights of Holders pursuant to Section 11, 12 or 13 hereof.
| Section 9. | Notice of Adjustment. |
Whenever an adjustment in the Conversion Rate with respect to the Series E Preferred Shares is required:
(a) the Corporation shall forthwith place on file with the Transfer Agent a certificate of a principal financial or accounting officer stating the adjusted Conversion Rate determined as provided herein and setting forth in reasonable detail such facts as shall be necessary to show the reason for and the manner of computing such adjustment; and
(b) a notice stating that the Conversion Rate has been adjusted and setting forth the adjusted Conversion Rate shall forthwith be given by the Corporation to each holder of Series E Preferred Shares. Any notice so given shall be conclusively presumed to have been duly given, whether or not the holder receives such notice.
| Section 10. | Notice in Certain Events. |
In case of:
(a) a consolidation or merger to which the Corporation is a party and for which approval of any holders of Common Stock is required, or of the sale or other disposition to another Person or group of Persons acting in concert as a partnership, limited partnership, syndicate or other group (within the meaning of Rule 13d-3 under the Exchange Act) of all or substantially all of the property and assets of the Corporation; or
(b) the voluntary or involuntary dissolution, liquidation or winding up of the Corporation; or
(c) any action triggering an adjustment of the Conversion Rate referred to in clauses (x) or (y) below; then, in each case, the Corporation shall cause to be given, to the holders of the Series E Preferred Shares, at least fifteen (15) days prior to the applicable date hereinafter specified, a notice stating:
(i) the date on which a record is to be taken for the purpose of any distribution or grant of rights or warrants triggering an adjustment to the Conversion Rate pursuant to Section 7 of this Certificate, or, if a record is not to be taken, the date as of which the holders of record of Common Stock entitled to such distribution, rights or warrants are to be determined; or
(d) the date on which any reclassification, consolidation, merger, sale, other disposition, dissolution, liquidation or winding up triggering an adjustment to the Conversion Rate pursuant to this Section 7 of this Certificate is expected to become effective, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their shares of Common Stock for securities or other property deliverable upon such reclassification, consolidation, merger, sale, conveyance, dissolution, liquidation or winding up.
Failure to give such Notice or any defect therein shall not affect the legality or validity of any proceeding described in Section 10(a), Section 10(b) or Section 10(c).
| Section 11. | [Reserved.] |
| Section 12. | Purchase of Series E Preferred Shares Upon a Fundamental Change. |
(a) In the event of a Fundamental Change, a holder of Series E Preferred Shares shall have the right, subject to the existence of legally available funds, to require the Corporation to purchase (the “Repurchase Right”) for cash all (or any part thereof in whole share) of such holder’s Series E Preferred Shares at a purchase price equal to 100% of the liquidation preference of the Series E Preferred Shares to be purchased plus accumulated and unpaid dividends to, but not including, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”).
(b) On or before the tenth Trading Day after the occurrence of a Fundamental Change, the Corporation shall provide to all holders of Series E Preferred Shares and the Transfer Agent a notice of the occurrence of the Fundamental Change and of the resulting Repurchase Right. Such notice shall state:
(1) the events constituting the Fundamental Change;
(2) the date of the Fundamental Change;
(3) the last date on which a holder may exercise the Repurchase Right;
(4) the Fundamental Change Repurchase Price;
(5) the Fundamental Change Repurchase Date;
(6) the name and address of the Transfer Agent;
(7) the Conversion Rate and any adjustment to the Conversion Rate that will result from the Fundamental Change pursuant to Section 11;
(8) that Series E Preferred Shares with respect to which a repurchase notice is given by the holder may be converted only if the repurchase notice has been properly withdrawn; and
(9) the procedures that a holder must follow to exercise the Repurchase Right. Such notice shall be accompanied by a form of written repurchase notice (as described in Section 12(d)) for the holders’ use in exercising their Repurchase Right.
(c) Simultaneously with providing such Notice, the Corporation shall publish a notice containing this information in a newspaper of general circulation in the City of New York or through such other public medium as the Corporation may use at that time and publish such information on its corporate website.
(d) To exercise the Repurchase Right, subject to Section 12(e), a holder of the Series E Preferred Shares must deliver, on or before the twentieth Trading Day after the date of the Corporation’s delivery of such notice of a Fundamental Change (subject to extension to comply with applicable law), the Series E Preferred Shares to be purchased, duly endorsed for transfer, together with a written repurchase notice duly completed to the Transfer Agent. The repurchase notice must state:
(1) the applicable Fundamental Change Repurchase Date;
(2) the portion of the liquidation preference of Series E Preferred Shares to be purchased, in integral multiples of $10.00; and
(3) that the Series E Preferred Shares are to be purchased by the Corporation pursuant to this Section 12.
(e) If the Series E Preferred Shares are not in certificated form, a holder’s repurchase notice must comply with applicable DTC procedures.
(f) A holder of Series E Preferred Shares may withdraw any repurchase notice (in whole or in part) by a written notice of withdrawal delivered to the Transfer Agent prior to the close of business on the Trading Day immediately prior to the Fundamental Change Repurchase Date. The notice of withdrawal shall state:
(1) the liquidation preference of the withdrawn Series E Preferred Shares, in integral multiples of $10.00;
(2) if certificated Series E Preferred Shares have been issued, the certificate numbers of the withdrawn Series E Preferred Shares; and
(3) the liquidation preference, if any, which remains subject to the repurchase notice.
(g) If the Series E Preferred Shares are not in certificated form, a holder’s notice of withdrawal must comply with applicable DTC procedures.
(h) The Corporation shall be required to purchase the Series E Preferred Shares no later than thirty-five (35) Trading Days after the date of the Corporation’s delivery of notice of the applicable Fundamental Change, subject to extension to comply with applicable law (as set forth in the notice of Fundamental Change, the “Fundamental Change Repurchase Date”). A holder of Series E Preferred Shares shall receive payment of the Fundamental Change Purchase Price promptly following the later of the Fundamental Change Repurchase Date or the time of book-entry transfer or delivery of the Series E Preferred Shares.
(i) If the Transfer Agent holds cash sufficient to pay the Fundamental Change Repurchase Price of the Series E Preferred Shares prior to 11:00 a.m., New York City time, on the Trading Day following the Fundamental Change Repurchase Date, then:
(1) the Series E Preferred Shares shall cease to be outstanding and dividends shall cease to accumulate (whether or not book-entry transfer of the Series E Preferred Shares is made or whether or not the Series B Preferred Share certificate, if applicable, is delivered to the Transfer Agent); and
(2) all other rights of the holder will terminate (other than the right to receive the Fundamental Change Repurchase Price upon delivery or transfer of the Series E Preferred Shares).
(j) A “Fundamental Change” shall be deemed to have occurred if any of the following occurs:
(1) The Corporation consolidates with or merges with or into any Person or conveys, transfers, sells or otherwise disposes of or leases all or substantially all of its property and assets to any Person, or any Person consolidates with or merges into or with the Corporation, in any such event pursuant to a transaction in which the Corporation’s outstanding voting shares are changed into or exchanged for cash, securities or other property, other than (a) any such transaction where the Corporation’s outstanding voting shares are not changed or exchanged at all (except to the extent necessary to reflect a change in the Corporation’s jurisdiction of formation), or (b) where (i) the Corporation’s outstanding voting shares are changed into or exchanged for cash, securities and other property (other than equity interests of the surviving Person) and (ii) the Corporation’s shareholders immediately before such transaction own, directly or indirectly, immediately following such transaction, more than 50% of the total outstanding voting shares of the surviving Person; or
(2) The Corporation is liquidated or dissolved or adopts a plan of liquidation or dissolution.
For purposes of the foregoing definition, “voting shares” means shares of the class or classes pursuant to which the holders thereof have the general voting power under ordinary circumstances to elect at least a majority of the board of directors of a corporation (irrespective of whether or not at the time shares of any other class or classes shall have or might have voting power by reason of the happening of any contingency).
(k) However, notwithstanding the foregoing, a Fundamental Change shall not be deemed to have occurred if in the case of a merger or consolidation described in Section 12(j)(1)
above, at least 90% of the consideration, excluding cash payments for fractional shares and cash payments pursuant to dissenters’ appraisal rights, in the merger or consolidation constituting the Fundamental Change consists of common shares traded on a U.S. national securities exchange or quoted on the Nasdaq Global Market (or which will be so traded or quoted when issued or exchanged in connection with such Fundamental Change) and as a result of such transaction or transactions the Series E Preferred Shares become convertible solely into such common shares, excluding cash payments for fractional shares.
(i) In connection with a Fundamental Change repurchase, the Corporation shall comply with all U.S. federal and state securities laws in connection with any offer by the Corporation to purchase the Series E Preferred Shares upon a Fundamental Change.
(l) The Corporation shall not be required to repurchase the Series E Preferred Shares upon a Fundamental Change if a third party (1) makes an offer to purchase the Series E Preferred Shares in the manner, at the times and otherwise in compliance with the requirements applicable to the Corporation to repurchase Series E Preferred Shares upon a Fundamental Change and (2) purchases all of the Series E Preferred Shares validly delivered and not withdrawn under such offer to purchase Series E Preferred Shares.
| Section 13. | [Reserved.] |
| Section 14. | Ranking. |
In respect of rights to the payment of dividends or rights upon any liquidation, dissolution or winding up of the affairs of the Corporation, the Series E Preferred Shares shall rank (i) senior to any Junior Stock, (ii) on a parity with any Parity Stock, and (iii) junior to any Senior Stock. For avoidance of doubt, debt securities of the Corporation which are convertible into or exchangeable for shares of Capital Stock of the Corporation shall not constitute a class or series of Capital Stock of the Corporation.
| Section 15. | Optional Redemption. |
(a) The Series E Preferred Shares shall not be redeemable prior to April 10, 2018. On or after that date, subject to any limitations which may be imposed by law, the Corporation may, at its option, redeem the Series E Preferred Shares, in whole or in part, at any time or from time to time, out of funds legally available therefor, at a redemption price equal to the $10.00 liquidation preference per share of the Series E Preferred Shares plus an amount equal to accumulated and unpaid dividends (whether or not declared), if any, to, but excluding, the redemption date unless the redemption date is after a Record Date and prior to the corresponding Dividend Payment Date, in which case no amount for such accumulated and unpaid dividends will be paid upon redemption and such accumulated and unpaid dividends will be paid to the holder of record on the Record Date. If less than all of the outstanding shares of Series E Preferred Shares are to be redeemed, the Corporation shall select the shares to be redeemed from the outstanding shares not previously called for redemption by lot or pro rata (as nearly as possible).
(b) In the event the Corporation shall redeem any or all of the Series E Preferred Shares as aforesaid in Section 15(a) above, the Corporation shall give notice of any such
redemption to the Series E Preferred Holders not more than 60 nor less than 30 days prior to the date fixed for such redemption. Failure to give notice to any Series E Preferred Holder shall not affect the validity of the proceedings for the redemption of shares of any Series E Preferred Holder being redeemed.
(c) Notice having been given as herein provided and so long as funds sufficient to pay the redemption price for all of the Series E Preferred Shares called for redemption have been set aside for payment, from and after the redemption date, dividends on the Series E Preferred Shares called for redemption shall cease to accrue and such Series E Preferred Shares called for redemption shall no longer be deemed outstanding, and all rights of the holders thereof shall cease other than the right to receive the redemption price, without interest.
(d) Other than as set forth in Section 12 of this Certificate, the Series E Preferred Holders shall have no right to require redemption of any Series E Preferred Shares.
(e) Any shares of Series E Preferred Shares which are redeemed shall thereafter not be cancelled and have the status of authorized but unissued Preferred Stock of the Corporation undesignated as to series, and may thereafter be reissued by the Board of Directors in the same manner as any other authorized and unissued Preferred Stock.
| Section 16. | SEC Reports. |
Whether or not the Company is required to file reports with the Commission, so long as any Series E Preferred Shares are outstanding, the Company shall file with the Commission all such reports and other information as it would be required to file with the Commission by Section 13(a) or 15(d) under the Exchange Act. The Company shall supply each holder of Series E Preferred Stock, upon request, without cost to such holder, copies of such reports or other information.
| Section 17. | [Reserved.] |
| Section 18. | Other Rights. |
The Series E Preferred Shares shall not have any voting rights or other powers, preferences or relative, participating, optional or other rights except as expressly set forth in the Charter or this Certificate.
| Section 19. | Notices. |
(a) Whenever the Corporation is required by this Certificate to give notice to holders of the Series E Preferred Stock by issuing a press release, rather than directly to holders, it shall do so in a public medium that is customary for such press release; provided, however, in such cases publication of a press release through the Dow Jones News Service (or any successor thereto) or Bloomberg Business News (or any successor thereto) shall be considered sufficient to comply with such notice requirement.
(b) Whenever the Corporation is required by this Certificate to give notice to holders of the Series E Preferred Stock within a specified number of Trading Days prior to a specified
event, it shall identify such Trading Days in good faith based on the definition of Trading Days set forth in Section 2 hereof. Any notice issued in reliance on such identification shall be deemed to satisfy the obligation of the Corporation with respect to the timing of such notice, notwithstanding any subsequent events that may cause such days to fail to be Trading Days.
| Section 20. | Headings of Subdivisions. |
The headings of the various subdivisions hereof are for convenience of reference only and shall not affect the interpretation of any of the provisions hereof.
| Section 21. | No Preemptive Rights. |
No holder of Series E Preferred Shares shall be entitled to any preemptive or preferential right to purchase or subscribe to any Capital Stock of the Corporation (whether now or hereafter authorized) or any obligations, warrants or other securities of the Corporation of any class, except as provided in Section 6 of this Certificate.
IN WITNESS WHEREOF, Goodrich Petroleum Corporation has caused these presents to be signed in its name and on its behalf by its President on December 18, 2015.
| GOODRICH PETROLEUM CORPORATION | ||
| By: | /s/ Robert C. Turnham, Jr. | |
| Robert C. Turnham, Jr., President | ||