Item 14(c) Exhibit #3(i)
CERTIFICATE OF AMENDMENT
OF
THE CERTIFICATE OF INCORPORATION
OF
CORNING INCORPORATED
Under Section 805 of the Business Corporation Law
(as amended by the Certificate of Correction filed pursuant
to Section 105 of the Business Corporation Law on July 26, 1994)
WE, JAMES R. HOUGHTON and A. JOHN PECK, JR., being, respectively,
the Chairman and the Secretary of Corning Incorporated, a corporation
organized under the laws of the State of New York, DO HEREBY CERTIFY as
follows:
FIRST: The name of the Corporation is Corning Incorporated. The
Corporation was formed under the name Corning Glass Works.
SECOND: The Certificate of Incorporation of the Corporation
(being the Preliminary Certificate of Consolidation Forming the Corporation)
was filed in the Office of the Secretary of State of the State of New York
on December 24, 1936.
THIRD: This amendment of the Certificate of Incorporation was
authorized by resolutions duly adopted by the Board of Directors of the
Corporation at a meeting thereof duly called and held on April 28, 1994,
at which a quorum was present and acting throughout, and by the Executive
Committee of the Board of Directors of the Corporation, acting pursuant
to delegated authority, by unanimous written consent on July 14, 1994.
FOURTH: The said Certificate of Incorporation, as heretofore
amended and restated, is hereby amended pursuant to Section 801(b) of the
Business Corporation Law by the addition of the following provisions
stating the number, designation, relative rights, preferences and limitations
of a series of Series Preferred Stock, par value $100 per share, as fixed by
the Board of Directors of the Corporation before the issuance of such shares,
such provisions so added to be designated as paragraph 4C of the Restated
Certificate of Incorporation of the Corporation and to read as follows:
4C. Series C 6% Cumulative Convertible Preferred Stock
SECTION 1. Designation and Amount; Special Purpose; Restriction
on Senior Series.
(A) The shares of this series of Preferred Stock shall be
designated as "Series C 6% Cumulative Convertible Preferred Stock" (the
"Series C Preferred Stock") and the number of shares constituting such
series shall be 3,737,500 with a par value of $100 per share.
(B) Shares of Series C Preferred Stock shall be issued only
upon exchange of all of the 6% convertible subordinated debentures due
July 21, 2024 of the Corporation (the "Subordinated Debentures") by
Corning Delaware, L.P., a Delaware limited partnership ("Corning Delaware"),
pursuant to a valid exchange election (the "Exchange Election") by the
holders of a majority of the aggregate liquidation preference of preferred
securities, liquidation preference of $50 per security, of Corning
Delaware (the "Corning Delaware Preferred Securities") then outstanding.
(C) So long as any Corning Delaware Preferred Securities are
outstanding, the Corporation shall not issue any other class or series of
capital stock ranking senior as to the payment of dividends or amounts
upon liquidation, dissolution or winding-up to the Series C Preferred
Stock without the approval of the holders of not less than 66 % of the
aggregate liquidation preference of the Corning Delaware Preferred
Securities then outstanding.
SECTION 2. Dividends and Distributions.
(A) (1) The holders of shares of Series C Preferred Stock
shall be entitled to receive, when, as and if declared by the Board of
Directors of the Corporation out of funds legally available therefor,
cumulative cash dividends in an amount per share per annum equal to
$6.00 (equivalent to a rate per annum of 6% of the stated liquidation
preference of $100 per share of Series C Preferred Stock), calculated
on the basis of a 360-day year consisting of 12 months of 30 days each,
and for any period shorter than a full monthly dividend period, dividends
will be computed on the basis of the actual number of days elapsed in
such period, and payable in United States dollars monthly in arrears on
the last day of each calendar month of each year.
(2) Dividends, when, as and if declared by the Board of
Directors of the Corporation out of funds legally available therefor,
must be paid on the last day of each month. Such dividends will accrue
and be cumulative whether or not they have been earned or declared and
whether or not there are funds of the Corporation legally available for
the payment of dividends. Dividends on the Series C Preferred Stock shall
be cumulative from the date of the Exchange Election. Accrued but unpaid
interest on the Subordinated Debentures, if any, on the date of the
issuance of the Series C Preferred Stock in exchange for such Subordinated
Debentures shall constitute, and be treated as, accumulated and unpaid
dividends on the Series C Preferred Stock; provided, however, that the
amount which shall constitute such accumulated and unpaid dividends on
the Corning Series C Preferred Stock shall be neither less than nor
greater than the amount of accumulated and unpaid dividends (including
Additional Dividends), if any, on the Preferred Securities on the date of
such Exchange Election. The record date for each dividend payment date
shall be the Business Day (as defined below) immediately preceding such
dividend payment date. In the event that any date on which dividends are
payable on the Series C Preferred Stock is not a day other than a day on
which banking institutions in The City of New York or Chicago are authorized
or required by law to close (a "Business Day"), then payment of the dividend
payable on such date will be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of any
such delay) except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding
Business Day, in each case with the same force and effect as if made on
such date.
(B) In the event that full cumulative dividends on the Series
C Preferred Stock have not been declared and paid or set apart for payment
when due, then the Corporation shall not, and shall not permit any
majority-owned subsidiary to declare or pay any dividend on, or redeem,
purchase, acquire for value or make a liquidation payment with respect to,
any Junior Stock (other than as a result of a reclassification of Junior
Stock or the exchange or conversion of one class or series of Junior
Stock for another class or series of Junior Stock), or make any
guarantee payments with respect to the foregoing (other than payments
under the Guarantee or dividends or guarantee payments to Corning).
When dividends are not paid in full, all dividends declared upon
the Series C Preferred Stock and all dividends declared upon any Pari Passu
Stock (as defined herein) shall be declared ratably in proportion to the
respective amounts of dividends accumulated and unpaid on the Series C
Preferred Stock and accumulated and unpaid on such Pari Passu Stock. "Pari
Passu Stock" means the Corporation's Series B Cumulative Convertible
Preferred Stock, par value $100 per share (the "Series B Preferred Stock"),
and any preference stock or preferred stock of the Corporation, or any
guarantee now or hereafter entered into by the Corporation in respect of
any preferred or preference stock of any affiliate of the Corporation,
ranking, in such case, as to the payment of dividends and amounts upon
liquidation, dissolution and winding-up on a parity with the Series B
Preferred Stock. "Junior Stock" means Common Stock, the Series A
Preferred Stock, par value $100 per share, of the Corporation and any
other class or series of capital stock of the Corporation or any of its
affiliates which by its express terms ranks junior in the payment of
dividends or amounts upon liquidation, dissolution or winding-up to
the Series C Preferred Stock.
SECTION 3. Voting Rights.
(A) In the event that full cumulative dividends on the
Series C Preferred Stock have not been paid for 18 monthly dividend
periods, the number of directors of the Corporation constituting the
entire Board of Directors shall be increased by two persons and the
holders of the Series C Preferred Stock shall have the right to elect
such persons to fill such positions at any annual meeting of
shareholders or special meeting held in place thereof, or at a special
meeting of the holders of the Series C Preferred Stock called as
hereinafter provided. Whenever all arrears in dividends on the Series C
Preferred Stock then outstanding shall have been paid and dividends
thereon for the current monthly period shall have been paid or declared
and set apart for payment, then the right of the holders of the Series C
Preferred Stock to elect such additional two directors shall cease (but
subject always to the same provisions for the vesting of such voting
rights in the case of any similar future arrearages in dividends), and
the terms of office of all persons elected as directors by the holders of
the Series C Preferred Stock shall forthwith terminate and the number of
directors of the Corporation constituting the entire Board of Directors
shall be reduced accordingly. At any time after such voting power shall
have been so vested in the holders of shares of the Series C Preferred
Stock, the Secretary of the Corporation may, and upon the written request
of any holder of Series C Preferred Stock (addressed to the Secretary at
the principal office of the Corporation) shall, call a special meeting of
the Series C Preferred Stock for the election of the two directors to be
elected by them as herein provided, such call to be made by notice similar
to that provided in the by-laws for a special meeting of the shareholders or
as required by law. If any such special meeting required to be called as
above provided shall not be called by the Secretary within 20 days after
receipt of any such request, then any holder of Series C Preferred Stock
may call such meeting, upon the notice above provided, and for that purpose
shall have access to the stock books and records of the Corporation.
The directors elected at any such special meeting shall hold office until
the next annual meeting of the shareholders or special meeting held in
place thereof if such office shall not have previously terminated as above
provided. In case any vacancy shall occur among the directors elected by
the holders of the Series C Preferred Stock, a successor shall be elected
by the Board of Directors to serve until the next annual meeting of the
shareholders or special meeting held in place thereof upon the nomination
of the then remaining director elected by the holders of the Series C
Preferred Stock or the successor of such remaining director.
(B) Except as otherwise required by law or set forth herein,
holders of Series C Preferred Stock shall have no special voting rights
and their consent shall not be required for the taking of any corporate
action. So long as any shares of Series C Preferred Stock are outstanding,
the consent of the holders of not less than 66 2/3% of the outstanding
shares of Series C Preferred Stock, given in person or by proxy either at a
regular meeting or at a special meeting called for that purpose, at which
the holders of Series C Preferred Stock shall vote separately as a series,
shall be necessary for effecting, validating or authorizing any one or
more of the following:
(1) the amendment, alteration or repeal of any of the provisions
of the Certificate of Incorporation, as amended, of the Corporation,
or any amendment thereto or any other certificate filed pursuant to
law (including any such amendment, alteration or repeal effected by
any merger or consolidation to which the Corporation is a party)
that would adversely affect any of the rights, powers or preferences
of outstanding shares of Series C Preferred Stock, provided, however,
that the amendment of the provisions of the Certificate of
Incorporation so as to authorize or create, or increase the authorized
amount of, any Junior Stock or Pari Passu Stock shall not be deemed to
affect adversely the voting powers, rights or preferences of the
holders of the Series C Preferred Stock;
(2) The creation of any shares of any class or series or any
security convertible into shares of any class or series of capital
stock ranking prior to the Series C Preferred Stock in the
distribution of assets on any liquidation, dissolution or winding-up
of the Corporation or in the payment of dividends; or
(3) any merger or consolidation with or into, or any sale,
transfer, exchange or lease of all or substantially all of the assets
of the Corporation to, any other corporation, in either case that
would adversely affect any of the rights, powers or preferences of
outstanding shares of Series C Preferred Stock.
SECTION 4. Redemption.
(A) The shares of Series C Preferred Stock are redeemable, at the
option of the Corporation, in whole or in part from time to time, on or after
August 5, 1998 during the twelve-month periods beginning on August 5 in each
of the following years, at the following redemption prices (expressed as a
percentage of liquidation preference), plus accumulated and unpaid dividends,
whether or not earned or declared, to the date of redemption (the "Redemption
Price"):
Date Redemption Price
August 5, 1998 103.6%
August 5, 1999 103.0%
August 5, 2000 102.4%
August 5, 2001 101.8%
August 5, 2002 101.2%
August 5, 2003 100.6%
August 5, 2004 and thereafter 100.0%
From and after the date fixed for redemption, dividends on shares of Series
C Preferred Stock called for redemption will cease to accrue, such shares
will no longer be deemed to be outstanding and all rights in respect of such
shares of the Corporation shall cease, except the right to receive the
Redemption Price, provided that shares of Series C Preferred Stock may be
converted pursuant to Section 6 hereof at any time prior to the close of
business on the date fixed for redemption of such shares. If less than all
of the outstanding shares of Series C Preferred Stock are to be redeemed,
the Corporation shall either redeem a portion of the shares held by each
holder or shall select the shares to be redeemed by lot, as may be determined
by the Board of Directors of the Corporation.
(B) Unless otherwise required by law, notice of redemption will
be sent to the holders of Series C Preferred Stock by first-class mail,
postage prepaid, mailed not less than thirty, nor more than sixty days prior
to the redemption date. Each such notice shall state: (i) the redemption
date; (ii) the total number of shares of Series C Preferred Stock to be
redeemed and, if fewer than all the shares held by such holder are to be
redeemed, the number of such shares to be redeemed from such holder;
(iii) the Redemption Price; (iv) the place or places where certificates for
such shares are to be surrendered for payment of the Redemption Price;
(v) that dividends on the shares to be redeemed will cease to accrue on
such redemption date; and (vi) the conversion rights of the shares to be
redeemed, the period within which conversion rights may be exercised, and
the conversion price of a share of Series C Preferred Stock on the date
such notice is sent. Upon surrender of the certificates for any shares
so called for redemption and not previously converted (properly endorsed
or assigned for transfer, if the Board of Directors of the Corporation
shall so require and the notice shall so state), such shares shall be
redeemed by the Corporation on the date fixed for redemption and at the
Redemption Price set forth in this Section 4.
SECTION 5. Liquidation, Dissolution or Winding-Up.
(A) Upon any voluntary or involuntary liquidation, dissolution,
winding-up or termination of the Corporation, the holders of Series C
Preferred Stock at the time outstanding will be entitled to receive out of
the net assets of the Corporation available for payment to stockholders and
subject to the rights of the holders of any stock of the Corporation ranking
senior to or on a parity with the Series C Preferred Stock in respect of
distributions upon liquidation, dissolution, winding-up or termination of
the Corporation, before any amount shall be paid or distributed with respect
to any Junior Stock liquidating distributions in the amount of $100 per
share plus an amount equal to all accrued and unpaid dividends thereon
(whether or not earned or declared) to the date fixed for distribution.
If, upon any liquidation, dissolution, winding-up or termination of the
Corporation, the amounts payable with respect to the Series C Preferred
Stock and any Pari Passu Stock are not paid in full, the holders of the
Series C Preferred Stock and such Pari Passu Stock shall share ratably in
any distribution of assets based on the proportion of their full respective
liquidation preference to the entire amount of unpaid liquidation preference.
After payment of the full amount to which they are entitled as provided by
the foregoing provisions of this Section 5(A), the holders of shares Stock
shall not be entitled to any further right or claim to any of the remaining
assets of the Corporation.
(B) Neither the merger or consolidation of the Corporation with
or into any other corporation, nor the merger or consolidation of any other
corporation with or into the Corporation, nor the sale, transfer, exchange
or lease of all or any portion of the assets of the Corporation, shall be
deemed to be a dissolution, liquidation or winding-up of the affairs
of the Corporation for purposes of this Section 5.
(C) Written notice of any voluntary or involuntary liquidation,
dissolution or winding-up of the Corporation, stating the payment date or
dates when, and the place or places where, the amounts distributable to
holders of Series C Preferred Stock in such circumstances shall be payable,
shall be given by first-class mail, postage prepaid, mailed not less than
twenty days prior to any payment date stated therein, to the holders of
Series C Preferred Stock, at the address shown on the books of the
Corporation or the transfer agent for the Series C Preferred Stock;
provided, however, that a failure to give notice as provided above or any
defect therein shall not affect the Corporation's ability to consummate a
voluntary or involuntary liquidation, dissolution or winding-up of the
Corporation.
SECTION 6. Conversion Rights of Series C Preferred Stock.
(A) The shares of Series C Preferred Stock are convertible at
any time at the option of the holder thereof into shares of Common Stock at
the initial conversion price $39.00, subject to adjustment as provided in
Section 7. For this purpose, each share of Series C Preferred Stock shall
be taken at $100.00.
(B) Holders of record of Series C Preferred Stock at the close
of business on a dividend payment record date will be entitled to receive
the dividend payable on such shares of Series C Preferred Stock on the
corresponding dividend payment date notwithstanding the conversion thereof
following such dividend payment record date. Except as provided in the
immediately preceding sentence, the Corporation will make no payment or
allowance for accumulated and unpaid dividends, whether or not in arrears,
on converted shares of Series C Preferred Stock.
(C) No fractional shares of Common Stock will be issued as a
result of conversion, but in lieu thereof, the Corporation shall pay a cash
adjustment in an amount equal to the same fraction of the Closing Price (as
hereinafter defined) on the date on which the certificate or certificates
for such shares were duly surrendered for conversion, or, if such date is
not a Trading Day (as hereinafter defined), on the next Trading Day.
(D) Shares of Series C Preferred Stock that have been called
for redemption will not be convertible after the close of business on the
second calendar day preceding the date fixed for redemption, unless the
Corporation defaults in making payment of the amount payable upon such
redemption.
(E) Any holder of shares of Series C Preferred Stock desiring
to convert such shares into shares of Common Stock shall surrender the
certificate or certificates representing the shares of Series C Preferred
Stock being converted, duly assigned or endorsed for transfer to the
Corporation (or accompanied by duly executed stock powers relating thereto),
at the principal executive office of the Corporation or the offices of the
transfer agent for the Series C Preferred Stock or such office or offices
in the continental United States of an agent for conversion as may from
time to time be designated by notice to the holders of the Series C
Preferred Stock by the Corporation or the transfer agent for the Series C
Preferred Stock, accompanied by written notice of conversion, on any day
that is a Business Day in The City of New York. Such notice of conversion
shall specify (i) the number of shares of Series C Preferred Stock to be
converted and the name or names in which such holder desires the certificate
or certificates for Common Stock and for any shares of Series C Preferred
Stock not to be so converted to be issued (subject to compliance with
applicable legal requirements if any of such certificates are to be issued
in a name other than the name of the holder), and (ii) the address to which
such holder wishes delivery to be made of such new certificates to be
issued upon such conversion.
(F) Upon surrender of a certificate representing a share or
shares of Series C Preferred Stock for conversion, the Corporation shall
issue and send by hand delivery (with receipt to be acknowledged) or by
first-class mail, postage prepaid, to the holder thereof, at the address
designated by such holder, a certificate or certificates representing
the number of shares of Common Stock to which such holder shall be entitled
upon conversion. In the event that there shall have been surrendered a
certificate or certificates representing shares of Series C Preferred
Stock, only part of which are to be converted, the Corporation shall issue
and deliver to such holder or such holder's designee in the manner
provided in the immediately preceding sentence a new certificate or
certificates representing the number of shares of Series C Preferred Stock
that shall not have been converted.
(G) The issuance by the Corporation of shares of Common Stock
upon a conversion of shares of Series C Preferred Stock into shares of
Common Stock made at the option of the holder thereof shall be effective
upon the surrender by such holder or such holder's designee of the
certificate or certificates for the shares of Series C Preferred Stock
to be converted, duly assigned or endorsed for transfer to the Corporation
(or accompanied by duly executed stock powers relating thereto). The
person or persons entitled to receive the Common Stock issuable upon such
conversion shall be treated for all purposes as the record holder or
holders of such shares of Common Stock as of the close of business on the
effective date of the conversion. No allowance or adjustment shall be
made in respect of dividends payable to holders of Common Stock of record
as of any date prior to such effective date.
(H) Whenever the Corporation shall issue shares of Common
Stock upon conversion of shares of Series C Preferred Stock as contemplated
by this Section 6, the Corporation shall issue, together with each such
share of Common Stock, one right to purchase Series A Junior Participating
Preferred Stock of the Corporation (or other securities in lieu thereof)
pursuant to the Amended Rights Agreement, dated as of October 4, 1989 (the
"Rights Agreement"), between the Corporation and Harris Trust and Savings
Bank, as Rights Agent, as such Rights Agreement may from time to time be
amended, or any similar rights issued to holders of Common Stock of the
Corporation in addition thereto or in replacement therefor (such rights,
together with any additional or replacement rights, being collectively
referred to as the "Rights"), whether or not such Rights shall be
exercisable at such time, but only if such Rights are issued and
outstanding and held by other holders of Common Stock of the Corporation
(or are evidenced by outstanding share certificates representing Common
Stock) at such time and have not expired or been redeemed.
(I) The Corporation shall at all times reserve and keep
available out of its authorized and unissued Common Stock, solely for
issuance upon the conversion of shares of Series C Preferred Stock as
herein provided, free from any preemptive or other similar rights, such
number of shares of Common Stock as shall from time to time be issuable
upon the conversion of all the shares of Series C Preferred Stock then
outstanding. Notwithstanding the foregoing, the Corporation shall be
entitled to deliver upon conversion of shares of Series C Preferred Stock,
as herein provided, shares of Common Stock reacquired and held in the
treasury of the Corporation (in lieu of the issuance of authorized and
unissued shares of Common Stock), so long as any such treasury shares
are free and clear of all liens, charges, security interests or
encumbrances. All shares of Common Stock delivered upon conversion of
the Series C Preferred Stock shall be duly authorized, validly issued,
fully paid and non-assessable, free and clear of all liens, claims,
security interests and other encumbrances. The Corporation shall
prepare and shall use its best efforts to obtain and keep in force such
governmental or regulatory permits or other authorizations as may be
required by law, and shall comply with all applicable requirements as to
registration or qualification of the Common Stock (and all requirements
to list the Common Stock issuable upon conversion of Class C Preferred
Stock that are at the time applicable), in order to enable the
Corporation lawfully to issue and deliver to each holder of record of
Series C Preferred Stock such number of shares of its Common Stock as
shall from time to time be sufficient to effect the conversion of all
shares of Series C Preferred Stock then outstanding and convertible
into shares of Common Stock.
SECTION 7. Adjustment of Conversion Price.
(A) Adjustment of Conversion Price. The conversion price at
which a share of Series C Preferred Stock is convertible into Common Stock
shall be subject to adjustment from time to time as follows:
(i) In case the Corporation shall pay or make a dividend or other
distribution on any class or series of capital stock of the
Corporation exclusively in Common Stock, the conversion price in
effect at the opening of business on the day following the date
fixed for the determination of stockholders entitled to receive such
dividend or other distribution shall be reduced by multiplying such
conversion price by a fraction of which the numerator shall be the
number of shares of Common Stock outstanding at the close of business
on the date fixed for such determination and the denominator shall be
the sum of such number of shares and the total number of shares
constituting such dividend or other distribution or exchange, such
reduction to become effective immediately after the opening of
business on the day following the date fixed for such determination.
For the purposes of this subparagraph (i), the number of shares of
Common Stock at any time outstanding shall not include shares held
in the treasury of the Corporation. The Corporation shall not pay
any dividend or make any distribution on shares of any class or
series of capital stock of the Corporation exclusively in Common
Stock held in the treasury of the Corporation.
(ii) In case the Corporation shall pay or make a dividend or
other distribution on its Common Stock consisting exclusively of,
or shall otherwise issue to all holders of its Common Stock, rights
or warrants entitling the holders thereof to subscribe for or
purchase shares of Common Stock at a price per share less than
the current market price per share (determined as provided in
subparagraph (vii) of this Section 7(A)) of the Common Stock on the
date fixed for the determination of stockholders entitled to receive
such rights or warrants, the conversion price in effect at the
opening of business on the day following the date fixed for such
determination shall be reduced by multiplying such conversion price
by a fraction of which the numerator shall be the number of shares
of Common Stock outstanding at the close of business on the date
fixed for such determination plus the number of shares of Common
Stock which the aggregate of the offering price of the total number
of shares of Common Stock so offered for subscription or purchase
would purchase at such current market price and the denominator
shall be the number of shares of Common Stock outstanding at the
close of business on the date fixed for such determination plus the
number of shares of Common Stock so offered for subscription or
purchase, such reduction to become effective immediately after the
opening of business on the day following the date fixed for such
determination. For the purposes of this subparagraph (ii), the
number of shares of Common Stock at any time outstanding shall not
include shares held in the treasury of the Corporation. The
Corporation shall not issue any rights or warrants in respect of
shares of Common Stock held in the treasury of the Corporation.
In case any rights or warrants referred to in this subparagraph
(ii) in respect of which an adjustment shall have been made shall
expire unexercised within 45 days after the same shall have been
distributed or issued by the Corporation, the conversion price
shall be readjusted at the time of such expiration to the conversion
price that would have been in effect if no adjustment had been made
on account of the distribution or issuance of such expired rights or
warrants.
(iii) In case outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the
conversion price in effect at the opening of business on the day
following the day upon which such subdivision becomes effective
shall be proportionately reduced, and conversely, in case outstanding
shares of Common Stock shall each be combined into a smaller number
of shares of Common Stock, the conversion price in effect at the
opening of business on the day following the day upon which such
combination becomes effective shall be proportionately increased,
such reduction or increase, as the case may be, to become effective
immediately after the opening of business on the day following the
day upon which such subdivision or combination becomes effective.
(iv) Subject to the last sentence of this subparagraph (iv), in
case the Corporation shall, by dividend or otherwise, distribute to
all holders of its Common Stock evidences of its indebtedness,
shares of any class or series of capital stock, cash or assets
(including securities, but excluding any rights or warrants referred
to in subparagraph (ii) of this Section 7(A), any dividend or
distribution paid exclusively in cash and any dividend or distribution
referred to in subparagraph (i) of this Section 7(A)), the conversion
price shall be reduced so that the same shall equal the price
determined by multiplying the conversion price in effect immediately
prior to the effectiveness of the conversion price reduction
contemplated by this subparagraph (iv) by a fraction of which the
numerator shall be the current market price per share (determined
as provided in subparagraph (vii) of this Section 7(A)) of the
Common Stock on the date fixed for the payment of such distribution
(the "Reference Date") less the fair market value (as determined
in good faith by the Board of Directors, whose determination shall
be conclusive and described in a resolution of the Board of
Directors), on the Reference Date, of the portion of the evidences
of indebtedness, shares of capital stock, cash and assets so
distributed applicable to one share of Common Stock and the
denominator shall be such current market price per share of
the Common Stock, such reduction to become effective immediately
prior to the opening of business on the day following the Reference
Date. If the Board of Directors determines the fair market value
of any distribution for purposes of this subparagraph (iv) by
reference to the actual or when issued trading market for any
securities comprising such distribution, it must in doing so
consider the prices in such market over the same period used in
computing the current market price per share of Common Stock
pursuant to subparagraph (vii) of this Section 7(A). For
purposes of this subparagraph (iv), any dividend or distribution
that includes shares of Common Stock or rights or warrants to
subscribe for or purchase shares of Common Stock shall be deemed
instead to be (1) a dividend or distribution of the evidences of
indebtedness, shares of capital stock, cash or assets other than
such shares of Common Stock or such rights or warrants (making
any conversion price reduction required by this subparagraph (iv))
immediately followed by (2) a dividend or distribution of such
shares of Common Stock or such rights or warrants (making any
further conversion price reduction required by subparagraph (i)
or (ii) of this Section 7(A), except (A) the Reference Date of
such dividend or distribution as defined in this subparagraph (iv)
shall be substituted as "the date fixed for the determination of
stockholders entitled to receive such dividend or other
distribution," "the date fixed for the determination of
stockholders entitled to receive such rights or warrants" and
"the date fixed for such determination" within the meaning of
subparagraphs (i) and (ii) of this Section 7(A) and (B) any
shares of Common Stock included in such dividend or distribution
shall not be deemed "outstanding at the close of business on the
date fixed for such determination" within the meaning of
subparagraph (i) of this Section 7(A).
(v) In case the Corporation shall pay or make a dividend or
other distribution on its Common Stock exclusively in cash
(excluding, in the case of any regular cash dividend on the
Common Stock, the portion thereof that does not exceed the per
share amount of the next preceding regular cash dividend on the
Common Stock (as adjusted to appropriately reflect any of the
events referred to in subparagraphs (i), (ii), (iii), (iv), (v)
and (vi) of this Section 7(A), or all of such regular cash dividend
if the annualized amount thereof per share of Common Stock
does not exceed 15% of the current market price per share
(determined as provided in subparagraph (vii) of this Section
7(A)) of the Common Stock on the Trading Day (as defined in Section
7(E)) next preceding the date of declaration of such dividend), the
conversion price shall be reduced so that the same shall equal the
price determined by multiplying the conversion price in effect
immediately prior to the effectiveness of the conversion price
reduction contemplated by this subparagraph (v) by a fraction of
which the numerator shall be the current market price per share
(determined as provided in subparagraph (vii) of this Section
7(A)) of the Common Stock on the date fixed for the payment of
such distribution less the amount of cash so distributed and not
excluded as provided above applicable to one share of Common Stock
and the denominator shall be such current market price per share
of the Common Stock, such reduction to become effective immediately
prior to the opening of business on the day following the date fixed
for the payment of such distribution.
(vi) In case a tender or exchange offer made by the Corporation
or any subsidiary of the Corporation for all or any portion of the
Corporation's Common Stock shall expire and such tender or exchange
offer shall involve the payment by the Corporation or such subsidiary
of consideration per share of Common Stock having a fair market value
(as determined in good faith by the Board of Directors, whose
determination shall be conclusive and described in a resolution of
the Board of Directors) at the last time (the "Expiration Time")
tenders or exchanges may be made pursuant to such tender or exchange
offer (as it shall have been amended) that exceeds 10% of the current
market price per share (determined as provided in subparagraph
(vii) of this Section 7(A)) of the Common Stock on the Trading Day
next succeeding the Expiration Time, the conversion price shall be
reduced so that the same shall equal the price determined by
multiplying the conversion price in effect immediately prior to the
effectiveness of the conversion price reduction contemplated by this
subparagraph (vi) by a fraction of which the numerator shall be the
number of shares of Common Stock outstanding (including any tendered
or exchanged shares) at the Expiration Time multiplied by the current
market price per share (determined as provided in subparagraph (vii)
of this Section 7(A)) of the Common Stock on the Trading Day next
succeeding the Expiration Time and the denominator shall be the
sum of (x) the fair market value (determined as aforesaid) of the
aggregate consideration payable to stockholders based on the
acceptance (up to any maximum specified in the terms of the tender
or exchange offer) of all shares validly tendered or exchanged and
not withdrawn as of the Expiration Time (the shares deemed so
accepted, up to any such maximum, being referred to as the
"Purchased Shares") and (y) the product of the number of shares of
Common Stock outstanding (less any Purchased Shares) at the
Expiration Time and the current market price per share (determined
as provided in subparagraph (vii) of this Section 7(A)) of the Common
Stock on the Trading Day next succeeding the Expiration Time, such
reduction to become effective immediately prior to the opening of
business on the day following the Expiration Time. Notwithstanding
anything contained in this Section 7(A)(vi) to the contrary, no
adjustment shall be made to the conversion price in the case of a
tender offer that complies with Rule 13e-4(h)(5) under the Exchange
Act, or any successor rule thereto.
(vii) For the purpose of any computation under subparagraphs
(ii), (iv), (v) and (vi) of this Section 7(A), the current market
price per share of Common Stock on any date in question shall be
deemed to be the average of the daily Closing Prices (as defined
in Section 7(E)) for the five consecutive Trading Days selected by
the Company commencing not more than 20 Trading Days before, and
ending not later than, the earlier of the day in question and, if
applicable, the day before the "ex" date with respect to the
issuance or distribution requiring such computation; provided,
however, that in each event another event occurs that would require
an adjustment pursuant to subparagraph (i) through (vi), inclusive,
the Board of Directors may make such adjustments to the Closing
Prices during such five Trading Day period as it deems appropriate
to effectuate the intent of the adjustments in this Section 7(A),
any such determination by the Board of Directors shall be set forth
in a Board Resolution and shall be conclusive. For purposes of this
paragraph, the term "ex" date, (1) when used with respect to any
issuance or distribution, means the first date on which the Common
Stock trades regular way on the relevant exchange or in the relevant
market from which the Closing Price was obtained without the right
to receive such issuance or distribution, and (2) when used with
respect to any tender or exchange offer means the first date on
which the Common Stock trades regular way on such exchange or in
such market after the Expiration Time of such offer.
(viii) The Corporation may make such reductions in the
conversion price, in addition to those required by subparagraphs
(i), (ii), (iii), (iv), (v) and (vi) of this Section 7(A), as it
considers to be advisable to avoid or diminish any income tax to
holders of Common Stock or rights to purchase Common Stock
resulting from any dividend or distribution of stock (or rights
to acquire stock) or from any event treated as such for income
tax purposes. The Corporation from time to time may reduce the
conversion price by any amount for any period of time if the
period is at least twenty days, the reduction is irrevocable
during the period, and the Board of Directors of the Corporation
shall have made a determination that such reduction would be in
the best interest of the Corporation, which determination shall
be conclusive. Whenever the conversion price is reduced
pursuant to the preceding sentence, the Corporation shall mail
to holders of record of the Series C Preferred Stock a notice
of the reduction at least fifteen days prior to the date the
reduced conversion price takes effect, and such notice shall
state the reduced conversion price and the period it will be
in effect.
(ix) No adjustment in the conversion price shall be required
unless such adjustment would require an increase or decrease of
at least 1% in the conversion price; provided, however, that any
adjustments which by reason of this subparagraph (ix) are not
required to be made shall be carried forward and taken into
account in any subsequent adjustment.
(x) Whenever the conversion price is adjusted as herein provided:
(1) the Corporation shall compute the adjusted conversion
price and shall prepare a certificate signed by the Treasurer
of the Corporation setting forth the adjusted conversion price
and showing in reasonable detail the facts upon which such
adjustment is based, and such certificate shall forthwith
be filed with the transfer agent for the Series C
Preferred Stock; and
(2) a notice stating the conversion price has been adjusted
and setting forth the adjusted conversion price shall forthwith
be required, and as soon as practicable after it is required such
notice shall be mailed by the Corporation to all record holders
of shares of Series C Preferred Stock at their last addresses as
they shall appear upon the stock transfer books of the
Corporation.
(B) Reclassification, Consolidation, Merger or Sale of Assets.
In the event that the Corporation shall be a party to any transaction
(including without limitation any recapitalization or reclassification
of the 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 of the Common Stock), any consolidation of
the Corporation with, or merger of the Corporation into, any other person,
any merger of another person into the Corporation (other than a merger
which does not result in a reclassification, conversion, exchange or
cancellation of outstanding shares of Common Stock of the Corporation),
any sale or transfer of all or substantially all of the assets of the
Corporation or any compulsory share exchange) pursuant to which the
Common Stock is converted into the right to receive other securities,
cash or other property), then lawful provisions shall be made as part of
the terms of such transaction whereby the holder of each share of Series C
Preferred Stock then outstanding shall have the right thereafter, to
convert such share only into (i) in the case of any such transaction
other than a Common Stock Fundamental Change (as defined in Section 7(E)),
the kind and amount of securities, cash and other property receivable upon
such transaction by a holder of the number of shares of Common Stock of
the Corporation into which such share of Series C Preferred Stock could
have been converted immediately prior to such transaction, after giving
effect, in the case of any Non-Stock Fundamental Change, to any
adjustment in the conversion price required by the provisions of Section
7(D), and (ii) in the case of a Common Stock Fundamental Change,
common stock of the kind received by holders of Common Stock as a result
of such Common Stock Fundamental Change in an amount determined pursuant
to the provisions of Section 7(D). The Corporation or the person formed
by such consolidation or resulting from such merger or which acquires
such assets or which acquires the Corporation's shares, as the case may
be, shall make provisions in its certificate or articles of incorporation
or other constituent document to establish such right. Such certificate
or articles of incorporation or other constituent document shall provide
for adjustments which, for events subsequent to the effective date of
such certificate or articles of incorporation or other constituent
document, shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section 7. The above provisions shall
similarly apply to successive transactions of the foregoing type.
(C) Prior Notice of Certain Events. In case:
(i) the Corporation shall (1) declare any dividend (or any
other distribution) on its Common Stock, other than (A) a dividend
payable in shares of Common Stock or (B) a dividend that would
not require an adjustment pursuant to Section 7(A)(iv) or (v) or
(2) authorize a tender or exchange offer that would require
an adjustment pursuant to Section 7(A)(vi); or
(ii) the Corporation shall authorize the granting to all
holders of Common Stock of rights or warrants to subscribe for
or purchase any shares of stock of any class or series or of
any other rights or warrants; or
(iii) of any reclassification of Common Stock (other
than a subdivision or combination of the outstanding Common
Stock, or a change in par value, or from par value to no par
value, or from no par value to par value), or of any
consolidation or merger to which the Corporation is a party
and for which approval of any stockholders of the Corporation
shall be required, or of the sale or transfer of all or
substantially all of the assets of the Corporation or of any
compulsory share exchange whereby the Common Stock is converted
into other securities, cash or other property; or
(iv) of the voluntary or involuntary dissolution, liquidation
or winding up of the Corporation;
then the Corporation shall cause to be filed with the transfer agent for
the Series C Preferred Stock, and shall cause to be mailed to the holders
of record of the Series C Preferred Stock, at their last addresses as
they shall appear upon the stock transfer books of the Corporation, at
least fifteen days prior to the applicable record or effective date here-
inafter specified, a notice stating (x) the date on which a record (if
any) is to be taken for the purpose of such dividend, distribution,
redemption, repurchase, rights or warrants or, if a record is not to
be taken, the date as of which the holders of Common Stock of record to
be entitled to such dividend, distribution, redemption, repurchase,
rights or warrants are to be determined or (y) the date on which such
reclassification, consolidation, merger, sale, transfer, share exchange,
dissolution, liquidation or winding up 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, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, share exchange, dissolution,
liquidation or winding up (but no failure to mail such notice or any
defect therein or in the mailing thereof shall affect the validity of
the corporate action required to be specified in such notice).
(D) Adjustments in Case of Fundamental Changes. Notwithstanding
any other provision in this Section 7 to the contrary, if any Fundamental
Change (as defined in Section 7(E)) occurs, then the conversion price in
effect will be adjusted immediately after such Fundamental Change as
described below. In addition, in the event of a Common Stock Fundamental
Change (as defined in Section 7(E)), each share of Series C Preferred Stock
shall be convertible solely into common stock of the kind and amount
received by holders of Common Stock as the result of such Common Stock
Fundamental Change as more specifically provided in the following clauses
(D)(i) and (D)(ii).
For purposes of calculating any adjustment to be made pursuant
to this Section 7(D) in the event of a Fundamental Change, immediately
after such Fundamental Change:
(i) in the case of a Non-Stock Fundamental Change (as defined
in Section 7(E)), the conversion price of the Series C Preferred
Stock shall thereupon become the lower of (A) the conversion price
in effect immediately prior to such Non-Stock Fundamental Change,
but after giving effect to any other prior adjustments effected
pursuant to this Section 7, and (B) the result obtained by
multiplying the greater of the Applicable Price (as defined in
Section 7(E)) or the then applicable Reference Market Price (as
defined in Section 7(E)) by a fraction of which the numerator shall
be $50.00 and the denominator shall be (x) the then-current
Redemption Price per share of Series C Preferred Stock or (y) for
any Non-Stock Fundamental Change that occurs before the Series C
Preferred Stock becomes redeemable by the Corporation pursuant to
Section 4, the applicable price per share set forth for the date
of such Non-Stock Fundamental Change in the following table:
Date of Non-Stock Fundamental Change Price
After date of original issuance of Series C
Preferred Stock and on or before August 5, 1995 $53.00
After August 5, 1995, and on or before August 5, 1996 52.70
After August 5, 1996, and on or before August 5, 1997 52.40
After August 5, 1997, and on or before August 5, 1998 52.10
plus, in any case referred to in this clause (y), an amount equal
to all dividends on the Series C Preferred Stock accrued and
unpaid thereon, whether or not earned or declared, to but excluding
the date of such Non-Stock Fundamental Change; and
(ii) in the case of a Common Stock Fundamental Change, the
conversion price of the Series C Preferred Stock in effect
immediately prior to such Common Stock Fundamental Change, but
after giving effect to any other prior adjustments effected pursuant
to this Section 7, shall thereupon be adjusted by multiplying such
conversion price by a fraction of which the numerator shall be the
Purchaser Stock Price (as defined in Section 7(E)) and the denominator
shall be the Applicable Price; provided, however, that in the event
of a Common Stock Fundamental Change in which (A) 100% by value of
the consideration received by a holder of Common Stock is common
stock of the successor, acquiror or other third party (and cash, if
any, is paid with respect to any fractional interests in such
common stock resulting from such Common Stock Fundamental Change)
and (B) all of the Common Stock shall have been exchanged for,
converted into or acquired for common stock (and cash with respect
to fractional interests) of the successor, acquiror or other third
party, the conversion price of the Series C Preferred Stock in
effect immediately prior to such Common Stock Fundamental Change
shall thereupon be adjusted by multiplying such conversion price
by a fraction of which the numerator shall be one (1) and the
denominator shall be the number of shares of common stock of the
successor, acquiror, or other third party received by a stockholder
for one share of Common Stock as a result of such Common Stock
Fundamental Change.
(E) Definitions. The following definitions shall apply to
terms used in this Section 7:
(1) "Applicable Price" shall mean (i) in the event of a
Non-Stock Fundamental Change in which the holders of the Common
Stock receive only cash, the amount of cash received by a
stockholder for one share of Common Stock and (ii) in the event
of any other Non-Stock Fundamental Change or any Common Stock
Fundamental Change, the average of the daily Closing Prices of
the Common Stock for the ten consecutive Trading Days prior to
and including the record date for the determination of the
holders of Common Stock entitled to receive securities, cash or
other property in connection with such Non-Stock Fundamental
Change or Common Stock Fundamental Change, or, if there is no
such record date, the date upon which the holders of the Common
Stock shall have the right to receive such securities, cash
or other property, in each case, as adjusted in good faith by
the Board of Directors of the Corporation to appropriately
reflect any of the events referred to in subparagraphs (i),
(ii), (iii), (iv), (v) and (vi) of Section 7(A).
(2) "Closing Price" of any common stock on any day
shall mean the last reported sale price regular way on such
day or, in case no such sale takes place on such day, the
average of the reported closing bid and asked prices regular
way of the common stock in each case on the principal national
securities exchange on which the Common Stock is traded, or if
the Common Stock is not listed or traded on any national
securities exchange, on the National Market System of the
National Association of Securities Dealers, Inc., or, if the
common stock is not quoted or admitted to trading on such
quotation system, on the quotation system on which the common
stock is listed or admitted to trading or quoted, or, if not
listed or admitted to trading or quoted on any national
securities exchange or quotation system, the average of the
closing bid and asked prices of the common stock in the
over-the-counter market on the day in question as reported
by the National Quotation Bureau Incorporated, or a similarly
generally accepted reporting service, or, if not so available
in such manner, as furnished by any New York Stock Exchange member
firm selected from time to time by the Board of Directors of
the Corporation for that purpose or, if not so available in
such manner, as otherwise determined in good faith by the Board
of Directors.
(3) "Common Stock Fundamental Change" shall mean any
Fundamental Change in which more than 50% by value (as determined
in good faith by the Board of Directors of the Corporation) of
the consideration received by holders of Common Stock consists
of common stock that for each of the ten consecutive Trading
Days referred to with respect to such Fundamental Change in
Section 7(E)(1) above has been admitted for listing or admitted
for listing subject to notice of issuance on a national
securities exchange or quoted on the National Market System of
the National Association of Securities Dealers, Inc.; provided,
however, that a Fundamental Change shall not be a Common Stock
Fundamental Change unless either (i) the Corporation continues
to exist after the occurrence of such Fundamental Change and
the outstanding shares of Series C Preferred Stock continue
to exist as outstanding shares of Series C Preferred Stock, or
(ii) not later than the occurrence of such Fundamental Change,
the outstanding shares of Series C Preferred Stock are converted
into or exchanged for shares of convertible preferred
stock of a corporation succeeding to the business of the
Corporation, which convertible preferred stock has powers,
preferences and relative, participating, optional or other rights,
and qualifications, limitations and restrictions, substantially
similar to those of the Series C Preferred Stock.
(4) "Fundamental Change" shall mean the occurrence of any
transaction or event in connection with a plan pursuant to which
all or substantially all of the Common Stock shall be exchanged
for, converted into, acquired for or constitute solely the right
to receive securities, cash or other property (whether by means of
an exchange offer, liquidation, tender offer, consolidation, merger,
combination, reclassification, recapitalization or otherwise);
provided, however, in the case of a plan involving more than one
such transaction or event, for purposes of adjustment of the
conversion price, such Fundamental Change shall be deemed to
have occurred when substantially all of the Common Stock of the
Corporation shall be exchanged for, converted into, or acquired
for or constitute solely the right to receive securities, cash
or other property, but the adjustment shall be based upon the
highest weighted average of consideration per share which a
holder of Common Stock could have received in such transactions
or events as a result of which more than 50% of the Common Stock
of the Corporation shall have been exchanged for, converted into,
or acquired for or constitute solely the right to receive securities,
cash or other property.
(5) "Non-Stock Fundamental Change" shall mean any Fundamental
Change other than a Common Stock Fundamental Change.
(6) "Purchaser Stock Price" shall mean, with respect to any
Common Stock Fundamental Change, the average of the daily Closing
Prices of the Common Stock received in such Common Stock Fundamental
Change for the ten consecutive Trading Days prior to and including
the record date for the determination of the holders of Common Stock
entitled to receive such common stock, or, if there is no such record
date, the date upon which the holders of the Common Stock shall have
the right to receive such Common Stock, in each case, as adjusted in
good faith by the Board of Directors of the Corporation to
appropriately reflect any of the events referred to in subparagraphs
(i), (ii), (iii), (iv), (v) and (vi) of Section 7(A);
(7) "Reference Market Price" shall initially mean $21.42 and
in the event of any adjustment to the conversion price other than as
a result of a Non-Stock Fundamental Change, the Reference Market
Price shall also be adjusted so that the ratio of the Reference Market
Price to the conversion price after giving effect to any such
adjustment shall always be the same as the ratio of $21.42 to the
initial conversion price per share.
(8) "Trading Day" shall mean a day on which securities are
traded on the national securities exchange or quotation system or
in the over-the-counter market used to determine the Closing Price.
(F) Dividend or Interest Reinvestment Plans. Notwithstanding
the foregoing provisions, the issuance of any shares of Common Stock
pursuant to any present or future plan providing for the reinvestment
of dividends or interest payable on securities of the Corporation and
the investment of additional optional amounts in shares of Common
Stock under any such plan, and the issuance of any shares of Common
Stock or options or rights to purchase such shares pursuant to any
present or future employee benefit plan or program of the Corporation
or pursuant to any option, warrant, right or exercisable, exchangeable
or convertible security outstanding as of the date the Subordinated
Debentures were first issued, shall not be deemed to constitute an
issuance of Common Stock or exercisable, exchangeable or convertible
securities by the Corporation to which any of the adjustment
provisions described above applies. There shall also be no adjustment
of the conversion price in case of the issuance of any stock (or
securities convertible into or exchangeable for stock) of the
Corporation except as specifically described in this Section 7.
If any action would require adjustment of the conversion price
pursuant to more than one of the provisions described above, only
one adjustment shall be made and such adjustment shall
be the amount of adjustment which has the highest absolute value
to holders of Series C Preferred Stock.
(G) Certain Additional Rights. In case the Corporation
shall, by dividend or otherwise, declare or make a distribution on its
Common Stock referred to in Section 7(A)(iv) or 7(A)(v) (including,
without limitation, dividends or distributions referred to in the last
sentence of Section 7(A)(iv)), the holder of each share of Series C
Preferred Stock, upon the conversion thereof subsequent to the close of
business on the date fixed for the determination of stockholders entitled
to receive such distribution and prior to the effectiveness of the conversion
price adjustment in respect of such distribution, shall also be entitled
to receive for each share of Common Stock into which such share of Series
C Preferred Stock is converted, the portion of the shares of Common Stock,
rights, warrants, evidences of indebtedness, shares of capital stock, cash
and assets so distributed applicable to one share of Common Stock;
provided, however, that, at the election of the Corporation (whose
election shall be evidenced by a resolution of the Board of Directors)
with respect to all holders so converting, the Corporation may, in lieu
of distributing to such holder any portion of such distribution not
consisting of cash or securities of the Corporation, pay such holder an
amount in cash equal to the fair market value thereof (as determined in
good faith by the Board of Directors, whose determination shall be
conclusive and described in a resolution of the Board of Directors).
If any conversion of a share of Series C PreferredStock described in the
immediately preceding sentence occurs prior to the payment date for
a distribution to holders of Common Stock which the holder of the share
of Series C Preferred Stock so converted is entitled to receive in
accordance with the immediately preceding sentence, the Corporation may
elect (such election to be evidenced by a resolution of the Board of
Directors) to distribute to such holder a due bill for the shares of Common
Stock, rights, warrants, evidences of indebtedness, shares of capital stock,
cash or assets to which such holder is so entitled, provided that such due
bill (i) meets any applicable requirements of the principal national
securities exchange or other market on which the Common Stock is then
traded and (ii) requires payment or delivery of such shares of Common
Stock, rights, warrants, evidences of indebtedness, shares of capital
stock, cash or assets no later than the date of payment or delivery
thereof to holders of shares of Common Stock receiving such distribution.
SECTION 8. Ranking; Attributable Capital and Adequacy of
Surplus; Retirement of Shares.
(A) The Series C Preferred Stock shall rank senior to all
shares of Junior Stock and pari passu with the Pari Passu Stock of the
Corporation as to the payment of dividends and amounts upon the liquidation,
dissolution or winding-up of the Corporation. The ranking of any subsequent
series of Preferred Stock, par value $100 per share, issued by the
Corporation as compared to the Series C Preferred Stock as to the payment
of dividends and amounts upon the liquidation, dissolution or winding-up of
the Corporation shall be as specified in the Certificate of Incorporation,
as amended, of the Corporation and, if appropriate, shall also be subject
to the provisions of paragraph (B) of Section 2 hereof.
(B) The capital of the Corporation allocable to the Series
C Preferred Stock for purposes of the New York Business Corporation Law
(the "BCL") shall be $100 per share.
(C) Any shares of Series C Preferred Stock acquired by the
Corporation by reason of the conversion or redemption of such shares, or
otherwise so acquired, shall be retired as shares of Series C Preferred
stock and restored to the status of authorized but unissued shares of
Preferred Stock, par value $100 per share, of the Corporation,
undesignated as to series, and may thereafter be reissued as part of a new
series of such Preferred Stock as permitted by law.
SECTION 9. Miscellaneous.
(A) All notices referred to herein shall be in writing,
and all notices hereunder shall be deemed to have been given upon the
earlier of receipt thereof or three business days after the mailing
thereof if sent by registered or certified mail (unless first-class mail
shall be specifically permitted for such notice under the terms of this
paragraph 4C) with postage prepaid addressed: (i) if to the Corporation,
to its office at Corning, New York 14831 (Attention: the Secretary) or
to the transfer agent for the Series C Preferred Stock, or other agent
of the Corporation designated as permitted by this paragraph 4C, or
(ii) if to any holder of the Series C Preferred Stock or Common Stock,
as the case may be, to such holder at the address of such holder as
listed in the stock record books of the Corporation (which may include
the records of any transfer agent for the Series C Preferred Stock or
Common Stock, as the case may be) or (iii) to such other address as the
Corporation or any such holder, as the case may be, shall have designated
by notice similarly given.
(B) The term "Common Stock" as used in this paragraph
4C means the Corporation's Common Stock, par value $0.50 per share, as
the same exists at the date of filing of a Certificate of Amendment to
the Certificate of Incorporation of the Corporation relating to the
Series C Preferred Stock or any other class of stock resulting from
successive changes or reclassifications of such Common Stock consisting
solely of changes in par value, or from par value to no par value, or
from no par value to par value. However, subject to the provisions of
Section 7(B), shares of Common Stock issuable on conversion of shares
of Series C Preferred Stock shall include only shares of the class
designated as Common Stock of the Corporation at the date of the filing
of this instrument with the State of New York or shares of any class or
classes resulting from any reclassification or reclassifications thereof
and which have no preference in respect of dividends or of amounts
payable in the event of any voluntary or involuntary liquidation,
dissolution or winding-up of the Corporation and which are not subject
to redemption by the Corporation; provided that if at any time there
shall be more than one such resulting class, the shares of each such
class then so issuable shall be substantially in the proportion which
the total number of shares of such class resulting from all such
reclassifications bears to the total number of shares of such classes
resulting from all such reclassifications.
(C) The Corporation shall pay any and all stock transfer
and documentary stamp taxes that may be payable in respect of any issuance
or delivery of shares of Series C Preferred Stock or shares of Common
Stock or other securities issued on account of Series C Preferred Stock
pursuant hereto or certificates representing such shares or securities.
The Corporation shall not, however, be required to pay any such tax that may
be payable in respect of any transfer involved in the issuance or delivery of
shares of Series C Preferred Stock or Common Stock or other securities in a
name other than that in which the shares of Series C Preferred Stock with
respect to which such shares or other securities are issued or delivered
were registered, or in respect of any payment to any person with respect to
any such shares or securities other than a payment to the registered holder
thereof, and shall not be required to make any such issuance, delivery or
payment unless and until the person otherwise entitled to such issuance,
delivery or payment has paid to the Corporation the amount of any such
tax or has established, to the satisfaction of the Corporation, that such
tax has been paid or is not payable.
(D) In the event that a holder of shares of Series C
Preferred Stock shall not by written notice designate the name in which
shares of Common Stock to be issued upon conversion of such shares should
be registered or to whom payment upon redemption of shares of Series C
Preferred Stock should be made or the address to which the certificate or
certificates representing such shares, or such payment, should be sent, the
Corporation shall be entitled to register such shares, and make such payment,
in the name of the holder of such Series C Preferred Stock as shown on the
records of the Corporation and to send the certificate or certificates
representing such shares, or such payment, to the address of such holder
shown on the records of the Corporation.
(E) The Corporation may appoint, and from time to time
discharge and change, a transfer agent for the Series C Preferred Stock.
Upon any such appointment or discharge of a transfer agent, the
Corporation shall send notice thereof by first-class mail, postage prepaid,
to each holder of record of Series C Preferred Stock.
IN WITNESS WHEREOF, we have signed this Certificate this 15th
day of July, 1994.
/s/ JAMES R. HOUGHTON
JAMES R. HOUGHTON
Chairman
[SEAL]
/s/ A. JOHN PECK, JR.
A. JOHN PECK, JR.
Secretary
STATE OF NEW YORK )
) s.s.:
COUNTY OF STEUBEN )
JAMES R. HOUGHTON and A. JOHN PECK, JR., being severally duly
sworn, say, and each for himself says, that the said James R. Houghton
is the Chairman and the said A. John Peck, Jr. is the Secretary of
Corning Incorporated, which is a corporation organized under the
laws of the State of New York and is the corporation described in the
foregoing Certificate; that they have read the said Certificate and
know the contents thereof and that the same is true to their own knowledge.
/s/ JAMES R. HOUGHTON
JAMES R. HOUGHTON
Chairman
/s/ A. JOHN PECK, JR.
A. JOHN PECK, JR.
Secretary
Subscribed and sworn to before
me this 15th day of July, 1994
/S/ SHERRY L. SMITH
Notary Public [NOTARIAL SEAL]
SHERRY L. SMITH
Notary Public, State of New York
Steuben County, No. 5009667
Commission Expires March 15, 1995