RESTATED
CERTIFICATE OF INCORPORATION
of
EXXON CORPORATION
Exxon Corporation, a corporation organized and existing under the laws of
the State of New Jersey, restates and integrates its Certificate of
Incorporation, as heretofore restated and amended, to read in full as herein
set forth:
FIRST. The name of the corporation is:
EXXON CORPORATION
SECOND. The address of the corporation's registered office is 830 Bear
Tavern Road, West Trenton, New Jersey 08628-1020. The name of the
corporation's registered agent at such address, upon whom process against the
corporation may be served, is Corporation Service Company.
THIRD. The purposes for which the corporation is organized are to engage
in any or all activities within the purposes for which corporations now or at
any time hereafter may be organized under the New Jersey Business Corporation
Act and under all amendments and supplements thereto, or any revision thereof
or any statute enacted to take the place thereof, including but not limited to
the following:
(1) To do all kinds of mining, manufacturing and trading business;
transporting goods and merchandise by land or water in any manner; to buy,
sell, lease and improve lands; to build houses, structures, vessels, cars,
wharves, docks and piers; to lay and operate pipelines; to erect and operate
telegraph and telephone lines and lines for conducting electricity; to enter
into and carry out contracts of every kind pertaining to its business; to
acquire, use, sell and grant licenses under patent rights; to purchase or
otherwise acquire, hold, sell, assign and transfer shares of capital stock and
bonds or other evidences of indebtedness of corporations, and to exercise all
the privileges of ownership including voting upon the securities so held; to
carry on its business and have offices and agencies therefor in all parts of
the world; and to hold, purchase, mortgage and convey real estate and personal
property within or without the State of New Jersey;
(2) To engage in any activities encompassed within this Article Third
directly or through a subsidiary or subsidiaries and to take any and all acts
deemed appropriate to promote the interests of such subsidiary or subsid-
iaries, including, without limiting the foregoing, the following: making
contracts and incurring liabilities for the benefit of such subsidiary or
subsidiaries; transferring or causing to be transferred to any such subsidiary
or subsidiaries assets of this corporation; guaranteeing dividends on any
shares of the capital stock of any such subsidiary; guaranteeing the principal
and interest or either of the bonds, debentures, notes or other evidences of
indebtedness issued or obligations incurred by any such subsidiary
or subsidiaries; securing said bonds, debentures, notes or other evidences of
indebtedness so guaranteed by mortgage of or security interest in the property
of this corporation; and contracting that said bonds, debentures, notes or
other evidences of indebtedness so guaranteed, whether secured or not, may be
convertible into shares of this corporation upon such terms and conditions as
may be approved by the board of directors;
(3) To guarantee the bonds, debentures, notes or other evidences of
indebtedness issued, or obligations incurred, by any corporation, partnership,
limited partnership, joint venture or other association in which this
corporation at the time such guarantee is made has a substantial interest or
where such guarantee is otherwise in furtherance of the interests of this
corporation; and
(4) To exercise as a purpose or purposes each power granted to corpora-
tions by the New Jersey Business Corporation Act or by any amendment or
supplement thereto or by any statute enacted to take the place thereof,
insofar as such powers authorize or may hereafter authorize corporations to
engage in activities.
FOURTH. The aggregate number of shares which the corporation shall have
authority to issue is three billion two hundred million (3,200,000,000)
shares, divided into two hundred million (200,000,000) shares of preferred
stock without par value and three billion (3,000,000,000) shares of common
stock without par value.
(1) The board of directors of the corporation is authorized at any time
or from time to time (i) to divide the shares of preferred stock into classes
and into series within any class or classes of preferred stock; (ii) to
determine for any such class or series its designation, relative rights,
preferences and limitations; (iii) to determine the number of shares in any
such class or series (including a determination that such class or series
shall consist of a single share); (iv) to increase the number of shares of any
such class or series previously determined by it and to decrease such
previously determined number of shares to a number not less than that of the
shares of such class or series then outstanding; (v) to change the designation
or number of shares, or the relative rights, preferences and limitations of
the shares, of any theretofore established class or series no shares of which
have been issued; and (vi) to cause to be executed and filed without further
approval of the shareholders such amendment or amendments to the Restated
Certificate of Incorporation as may be required in order to accomplish any of
the foregoing. In particular, but without limiting the generality of the
foregoing, the board of directors is authorized to determine with respect to
the shares of any class or series of preferred stock:
(a) whether the holders thereof shall be entitled to cumulative, non-
cumulative or partially cumulative dividends or to no dividends and, with
respect to shares entitled to dividends, the dividend rate or rates (which may
be fixed or variable and may be made dependent upon facts ascertainable
outside of the Restated Certificate of Incorporation) and any other terms and
conditions relating to such dividends;
(b) whether the holders thereof shall be entitled to receive dividends
payable on a parity with or subordinate or in preference to the dividends
payable on any other class or series of shares of the corporation;
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(c) whether, and if so to what extent and upon what terms and
conditions, the holders thereof shall be entitled to preferential rights upon
the liquidation of, or upon any distribution of the assets of, the
corporation;
(d) whether, and if so upon what terms and conditions, such shares shall
be convertible into other securities;
(e) whether, and if so upon what terms and conditions, such shares shall
be redeemable;
(f) the terms and amount of any sinking fund provided for the purchase
or redemption of such shares; and
(g) the voting rights, if any, to be enjoyed by such shares and the
terms and conditions for the exercise thereof.
(2) Each holder of shares of common stock shall be entitled to one vote
for each share of common stock held of record by such holder on all matters on
which holders of shares of common stock are entitled to vote.
(3) No holder of any shares of common or preferred stock of the
corporation shall have any right as such holder (other than such right, if
any, as the board of directors in its discretion may determine) to purchase,
subscribe for or otherwise acquire any unissued or treasury shares, or any
option rights, or securities having conversion or option rights, of the
corporation now or hereafter authorized.
(4) The relative voting, dividend, liquidation and other rights,
preferences and limitations of the shares of the class of preferred stock
designated "Class A Preferred Stock" and the class of preferred stock
designated "Class B Preferred Stock" are as set forth in this Article FOURTH
and in Exhibit A to this Restated Certificate of Incorporation.
FIFTH. The following is a list of the names and residences of the
original shareholders, and of the number of shares held by each:
H. M. Flagler of New York City, one share.
Paul Babcock, Jr. of Jersey City, one share.
James McGee of Plainfield, New Jersey, one share.
Thos. C. Bushnell of Morristown, New Jersey, one share.
John D. Rockefeller of Cleveland, Ohio, }
Wm. Rockefeller of New York City, }
J. A. Bostwick of New York City, }
John D. Archbold of New York City, }
O. H. Payne of Cleveland, Ohio, }
Wm. G. Warden of Philadelphia, Pa., }
Benj. Brewster of New York City, }
Chas. Pratt of Brooklyn, N.Y., }
and H. M. Flagler of New York City. }
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Trustees of Standard Oil Trust, twenty-nine thousand nine hundred and
ninety-six shares (29,996), of which twenty-one thousand seven hundred
and twenty-four shares (21,724) were issued for property purchased and
necessary for the business of this corporation.
SIXTH. The number of directors of the corporation as of March 1, 1997 is
12 and their names and business office addresses are:
Dr. Michael J. Boskin Mr. Harry J. Longwell
Hoover Institution 5959 Las Colinas Boulevard
Stanford University Irving, Texas 75039-2298
Stanford, California 94305-6010
Mr. D. Wayne Calloway Mrs. Marilyn Carlson Nelson
PepsiCo, Inc. Carlson Holdings, Inc.
700 Anderson Hill Road 12755 Highway 55
Purchase, New York 10577 Minneapolis, Minnesota 55441
Mr. Jess Hay Mr. Lee R. Raymond
Texas Commerce Tower 5959 Las Colinas Boulevard
2200 Ross Avenue Irving, Texas 75039-2298
Dallas, Texas 75201-2764
Mr. James R. Houghton Dr. John H. Steele
Corning Incorporated Woods Hole Oceanographic Institution
80 E. Market Street Woods Hole, Massachusetts 02543
Corning, New York 14830
Mr. William R. Howell Mr. Robert E. Wilhelm
J. C. Penney Company, Inc. 5959 Las Colinas Boulevard
6501 Legacy Drive Irving, Texas 75039-2298
Plano, Texas 75024-3698
Mr. Philip E. Lippincott Mr. Joseph D. Williams
P.O. Box 2159 Warner-Lambert Company
Park City, Utah 84060 182 Tabor Road
Morris Plains, New Jersey 07950
SEVENTH. The number of directors at any time may be increased or
diminished by vote of the board of directors, and in case of any such increase
the board of directors shall have power to elect each such additional director
to hold office until the next succeeding annual meeting of shareholders and
until his successor shall have been elected and qualified.
The board of directors, by the affirmative vote of a majority of the
directors in office, may remove a director or directors for cause where, in
the judgment of such majority, the continuation of the director or directors
in office would be harmful to the corporation and may suspend the director or
directors for a reasonable period pending final determination that cause
exists for such removal.
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The board of directors from time to time shall determine whether and to
what extent, and at what times and places, and under what conditions and
regulations, the accounts and books of the corporation, or any of them, shall
be open to the inspection of the shareholders; and no shareholder shall have
any right of inspecting any account or book or document of the corporation,
except as conferred by statute or authorized by the board of directors, or by
a resolution of the shareholders.
EIGHTH. The following action may be taken by the affirmative vote of a
majority of the votes cast by the holders of shares of the corporation
entitled to vote thereon:
(1) The adoption by the shareholders of a proposed amendment of the
certificate of incorporation of the corporation;
(2) The adoption by the shareholders of a proposed plan of merger or
consolidation involving the corporation;
(3) The approval by the shareholders of a sale, lease, exchange, or
other disposition of all, or substantially all, the assets of the corporation
otherwise than in the usual and regular course of business as conducted by the
corporation; and
(4) Dissolution.
NINTH. Except as otherwise provided by statute or by this certificate of
incorporation or the by-laws of the corporation as in each case the same may
be amended from time to time, all corporate powers may be exercised by the
board of directors. Without limiting the foregoing, the board of directors
shall have power, without shareholder action:
(1) To authorize the corporation to purchase, acquire, hold, lease,
mortgage, pledge, sell and convey such property, real, personal and mixed,
without as well as within the State of New Jersey, as the board of directors
may from time to time determine, and in payment for any property to issue, or
cause to be issued, shares of the corporation, or bonds, debentures, notes or
other obligations or evidence of indebtedness thereof secured by pledge,
security interest or mortgage, or unsecured; and
(2) To authorize the borrowing of money, the issuance of bonds,
debentures, notes and other obligations or evidences of indebtedness of the
corporation, secured or unsecured, and the inclusion of provisions as to
redeemability and convertibility into shares of stock of the corporation or
otherwise, and, as security for money borrowed or bonds, debentures, notes and
other obligations or evidences of indebtedness issued by the corporation, the
mortgaging or pledging of any property, real, personal, or mixed, then owned
or thereafter acquired by the corporation.
TENTH. To the full extent from time to time permitted by law, no
director or officer of the corporation shall be personally liable to the
corporation or its shareholders for damages for breach of any duty owed to the
corporation or its shareholders. Neither the amendment or repeal of this
Article, nor the adoption of any provision of this certificate of
incorporation inconsistent with this Article, shall eliminate or reduce the
protection afforded by this Article to
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a director or officer of the corporation with respect to any matter which
occurred, or any cause of action, suit or claim which but for this Article
would have accrued or arisen, prior to such amendment, repeal or adoption.
IN WITNESS WHEREOF, Exxon Corporation has caused this Restated
Certificate of Incorporation to be duly executed as of March 17, 1997.
EXXON CORPORATION
L. R. RAYMOND
Chairman of the Board
FILED AND RECORDED
March 17, 1997
Lonna R. Hooks
Secretary of State New Jersey
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EXHIBIT A
PART I
Class A Preferred Stock
Section 1. Designation and Amount; Special Purpose Restricted Transfer Issue.
_________ _________________________________________________________________
(A) The shares of this class of preferred stock shall be designated as
"Class A Preferred Stock" (referred to herein as the "Class A Preferred
Stock") and the aggregate number of shares constituting such class which the
Corporation shall have the authority to issue is 16,500,000. The shares of
this class shall have a stated value of $61.50 per share (the "Stated Value").
(B) Shares of Class A Preferred Stock shall be issued only to a trustee
acting on behalf the Plan (as defined in Section 9(F)(vii)). In the event of
any transfer of shares of Class A Preferred Stock to any person other than the
Corporation or the trustee of the Plan, the shares of Class A Preferred Stock
so transferred, upon such transfer and without any further action by the
Corporation or the holder, shall be automatically converted into shares of the
Corporation's Common Stock without par value (the "Common Stock") pursuant to
Section 5 hereof and no such transferee shall have any of the voting powers,
preferences and relative, participating, optional or special rights ascribed
to shares of Class A Preferred Stock hereunder but, rather, only the powers
and rights pertaining to the Common Stock into which such shares of Class A
Preferred Stock shall be so converted. In the event of such a conversion, the
transferee of the shares of Class A Preferred Stock shall be treated for all
purposes as the record holder of the shares of Common Stock into which such
shares of Class A Preferred Stock have been automatically converted as of the
date of such transfer; provided, however, that the pledge of Class A Preferred
________ _______
Stock as collateral under any credit agreement for the financing or
refinancing of the initial purchase of the Class A Preferred Stock by the Plan
shall not constitute a transfer for purposes of this Section 1. Certificates
representing shares of Class A Preferred Stock shall be legended to reflect
such restrictions on transfer. Notwithstanding the foregoing provisions of
this Section 1(B), shares of Class A Preferred Stock (i) upon allocation to
the account of a participant in the Plan, shall be converted into shares of
Common Stock or Class B Preferred Stock, as the case may be, pursuant to
Section 5 hereof and the shares of Common Stock issued upon such conversion
may be transferred by the holder thereof as permitted by law and the shares of
Class B Preferred Stock issued upon such conversion may be transferred by the
holder only as permitted by Part II hereof and (ii) shall be redeemable by the
Corporation upon the terms and conditions provided by Sections 6, 7 and 8
hereof.
Section 2. Dividends and Distributions.
__________ ___________________________
(A) Subject to the provisions for adjustment hereinafter set forth, the
holders of shares of Class A Preferred Stock shall be entitled to receive,
when, as and if declared by the Board of Directors out of funds available
under applicable law and the Certificate of Incorporation, cumulative cash
dividends ("Preferred Dividends") in an amount per share equal to $4.68 per
annum and no more, payable (x) monthly in arrears, one-twelfth on the 20th day
of each month, commencing on July 20, 1989 and ending on June 20, 1990, and
thereafter (y) quarterly in arrears, one-quarter on the 20th day of each
March, June, September and December in each year (each such monthly and
quarterly date a "Dividend Payment Date"), to holders of record at the start
of business on such Dividend Payment Date. In the event that
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any Dividend Payment Date shall occur on any day other than a "Business Day"
(as defined in Section 9(F)(i)), the dividend payment due on such Dividend
Payment Date shall be paid on the Business Day immediately succeeding such
Dividend Payment Date. Preferred Dividends shall begin to accrue on
outstanding shares of Class A Preferred Stock from the date of issuance of
such shares of Class A Preferred Stock. Preferred Dividends shall accrue on a
daily basis whether or not the Corporation shall have earnings or surplus at
the time. Preferred Dividends accrued after the date of issuance for any
period less than a full monthly or quarterly period, as the case may be,
between Dividend Payment Dates shall be computed on the basis of a 360-day
year consisting of twelve 30-day months and such a proportional dividend shall
accrue for the period from the date of issuance until the end of the dividend
payment period in which such issuance occurs. Accumulated but unpaid
Preferred Dividends shall accumulate as of the Dividend Payment Date on which
they first become payable, but no interest shall accrue on accumulated but
unpaid Preferred Dividends.
(B) So long as any Class A Preferred Stock shall be outstanding, no
dividend shall be declared or paid or set apart for payment on any other class
of stock ranking on a parity with the Class A Preferred Stock as to dividends
("Parity Stock"), unless there shall also be or have been declared and paid or
set apart for payment on the Class A Preferred Stock dividends ratably in
proportion to the respective amounts of dividends (a) accumulated and unpaid
through all dividend payment periods for the Class A Preferred Stock ending on
or before the dividend payment date of such Parity Stock and (b) accumulated
and unpaid on such Parity Stock through the dividend payment period on such
Parity Stock next preceding such dividend payment date. So long as any Class
A Preferred Stock shall be outstanding, in the event that full cumulative
dividends on the Class A Preferred Stock have not been declared and paid or
set apart for payment for all prior dividend payment periods, the Corporation
shall not declare or pay or set apart for payment any dividends or make any
other distributions on, or make any payment on account of the purchase,
redemption or other retirement of, any other class of stock or series thereof
of the Corporation ranking as to dividends junior to the Class A Preferred
Stock ("Junior Stock") until full cumulative and unpaid dividends on the Class
A Preferred Stock shall have been paid or declared and set apart for payment;
provided, however, that the foregoing shall not apply to (i) any dividend
________ _______
payable solely in any shares of any Junior Stock, or (ii) the acquisition of
shares of any Junior Stock either (x) pursuant to any employee or director
incentive or benefit plan or arrangement (including any employment, severance
or consulting agreement) of the Corporation or any subsidiary of the
Corporation heretofore or hereafter adopted or (y) in exchange solely for
shares of any other Junior Stock.
Section 3. Voting Rights. The holders of shares of Class A Preferred
_________ _____________
Stock shall have the following voting rights:
(A) The holders of Class A Preferred Stock shall be entitled to vote on
all matters submitted to a vote of the holders of Common Stock of the
Corporation, voting together as one class with the holders of Common Stock and
any other class or series of preferred stock so voting as one class. Each
share of the Class A Preferred Stock shall entitle the holder thereof to a
number of votes equal to the number of shares of Common Stock into which such
share of Class A Preferred Stock could be converted pursuant to the first
sentence of Section 5(A) hereof on the record date for determining the
shareholders entitled to vote, rounded to the nearest one-tenth of a vote; it
being understood that whenever the "Conversion Ratio" (as defined in Section 5
hereof) is adjusted pursuant to Section 9 hereof, the voting rights of the
Class A Preferred Stock shall also be similarly adjusted.
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(B) Except as otherwise required by law, holders of Class A Preferred
Stock shall have no special voting rights and their consent shall not be
required (except to the extent they are entitled to vote with holders of
Common Stock or any other class or series of preferred stock) for the taking
of any corporate action.
Section 4. Liquidation, Dissolution or Winding-Up.
_________ ______________________________________
(A) Upon any voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation, the holders of Class A Preferred Stock shall be
entitled to receive out of assets of the Corporation which remain after
satisfaction in full of all valid claims of creditors of the Corporation and
which are available for payment to shareholders, and subject to the rights of
the holders of any class of stock of the Corporation ranking senior to or on a
parity with the Class A Preferred Stock in respect of distributions upon
liquidation, dissolution or winding-up of the Corporation, before any amount
shall be paid or distributed among the holders of Common Stock or any other
class of stock ranking junior to the Class A Preferred Stock in respect of
distributions upon liquidation, dissolution or winding-up of the Corporation,
liquidating distributions in an aggregate amount of $61.50 per share of Class
A Preferred Stock plus an amount equal to all accrued and unpaid dividends
thereon to the date fixed for distribution, and no more. If upon any
liquidation, dissolution or winding-up of the Corporation, the amounts payable
with respect to the Class A Preferred Stock and any other class of stock
ranking as to any such distribution on a parity with the Class A Preferred
Stock are not paid in full, the holders of the Class A Preferred Stock and
such other class of stock shall share ratably in any distribution of assets in
proportion to the full respective preferential amounts to which they are
entitled. After payment of the full amount to which they are entitled as
provided by the foregoing provisions of this Section 4(A), the holders of
shares of Class A Preferred Stock shall not be entitled to any further right
or claim to any of the remaining assets of the Corporation.
(B) Neither the merger, consolidation or combination of the Corporation
with or into any other corporation, nor the sale, lease, transfer or other
exchange of all or any portion of the assets of the Corporation (or any
purchase or redemption of some or all of the shares of any class or series of
stock 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 4,
but the holders of Class A Preferred Stock shall nevertheless be entitled in
the event of any such transaction to the rights provided by Section 8 hereof.
(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
Class A Preferred Stock and any other class or series of preferred stock in
such circumstances shall be payable, and stating that, except in the case of
Class A Preferred Stock represented by uncertificated shares, such payment will
be made only after the surrender (or submission for notation of any partial
payment) of such holder's certificates representing shares of Class A Preferred
Stock, shall be given by first class mail, postage prepaid, mailed not less
than twenty (20) days prior to any payment date stated therein, to the holders
of Class A Preferred Stock, at the address shown on the books of the
Corporation or any transfer agent for the Class A Preferred Stock.
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Section 5. Conversion into Common Stock or Class B Preferred Stock.
_________ _______________________________________________________
(A) A holder of shares of Class A Preferred Stock shall be entitled at
any time, but not later than the close of business on the Redemption Date (as
hereinafter defined) of such shares pursuant to Section 6, 7 or 8 hereof, to
cause any or all of such shares to be converted into a number of shares of
Common Stock for each share of Class A Preferred Stock which initially shall
be one and which shall be adjusted as hereinafter provided (and, as so
adjusted, is hereinafter sometimes referred to as the "Conversion Ratio"). In
addition to the foregoing and subject to Section 5(B) hereof, a holder of
shares of Class A Preferred Stock upon allocation of such shares to the
account of a participant in the Plan shall be required to convert each such
share of Class A Preferred Stock into the greater of (i) that number of shares
of Common Stock or Class B Preferred Stock, as the case may be, which shall be
the quotient obtained by dividing the Stated Value of each share of Class A
Preferred Stock by the greater of (x) $15 divided by the Conversion Ratio or
(y) the average of the high and low sales prices for a share of Common Stock
on the trading day next preceding the Conversion Date (as hereinafter defined)
on which one or more sales of shares of Common Stock occur, all as reported on
the Composite Tape (as hereinafter defined), or (ii) that number of shares of
Common Stock or Class B Preferred Stock equal to the Conversion Ratio. The
Corporation's determination in good faith in respect of the number of shares
to be issued upon any and all conversions pursuant to the preceding sentence
shall be conclusive.
(B) Any holder of shares of Class A Preferred Stock desiring or required
to convert such shares into shares of Common Stock or Class B Preferred Stock,
as the case may be, shall surrender the certificate or certificates
representing the shares of Class A Preferred Stock being converted, duly
assigned or endorsed for transfer to the Corporation (or accompanied by duly
executed stock powers relating thereto) in case of a request for registration
in a name other than that of such holder, at the offices of the Corporation or
the transfer agent for the Common Stock or Class B Preferred Stock, as the
case may be, accompanied by written notice of conversion. Such notice of
conversion shall specify (i) the number of shares of Class A Preferred Stock
to be converted, and the name or names in which such holder wishes the
certificate or certificates for Common Stock or Class B Preferred Stock, as
the case may be, and for any shares of Class A Preferred Stock not to be so
converted to be issued (or the name or names in which ownership of such shares
is to be registered in the event that they are to be uncertificated), (ii) the
address or addresses to which such holder wishes delivery to be made of such
new certificates to be issued upon such conversion, and (iii) whether the
conversion is being effected pursuant to the second sentence of Section 5(A)
hereof, and if so, whether the shares issued upon conversion will be shares of
Common Stock or Class B Preferred Stock. In the case of a conversion of
shares of Class A Preferred Stock required pursuant to the second sentence of
Section 5(A), if such notice fails to specify the class of stock desired, the
holder thereof shall receive shares of Class B Preferred Stock.
(C) A conversion of shares of Class A Preferred Stock into shares of
Common Stock or Class B Preferred Stock, as the case may be, pursuant to
Section 5(A) shall be effective immediately before the close of business on
the day of the later of (i) the surrender to the Corporation of the
certificate or certificates for the shares of Series A Preferred Stock to be
converted, duly assigned or endorsed for transfer to the Corporation (or
accompanied by duly executed stock powers relating thereto) in case of a
request for registration in a name other than that of such holder and (ii) the
giving of the notice of conversion as provided herein (the "Conversion Date").
On and after such Conversion Date, the person or persons entitled to receive
the Common Stock or Class B Preferred Stock, as the case may be, issuable upon
such conversion shall be treated for all purposes as the record holder or
holders of such shares of Common Stock or Class B Preferred Stock, as the case
may be.
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(D) Promptly after the Conversion Date for shares of Class A Preferred
Stock to be converted, the Corporation or the transfer agent for the Common
Stock or the Class B Preferred Stock, as the case may be, shall issue and send
by hand delivery (with receipt to be acknowledged) or by first class mail,
postage prepaid, to the holder of such shares or to such holder's designee, at
the address designated by such holder, a certificate or certificates for the
number of shares of Common Stock or Class B Preferred 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 Class A
Preferred Stock only part of which are to be converted, the Corporation or the
transfer agent for the Common Stock or Class B Preferred Stock, as the case
may be, shall issue and deliver to such holder or such holder's designee a new
certificate or certificates representing the number of shares of Class A
Preferred Stock which shall not have been converted.
(E) The Corporation shall not be obligated to deliver to holders of
Class A Preferred Stock any fractional share or shares of Common Stock or
Class B Preferred Stock, as the case may be, issuable upon any conversion of
such shares of Class A Preferred Stock, but in lieu thereof may make a cash
payment in respect thereof in any manner permitted by law. The determination
in good faith by the Corporation of the amount of any such cash payments shall
be conclusive.
(F) The Corporation shall at all times reserve and keep available out of
its authorized and unissued and/or treasury Common Stock and Class B Preferred
Stock solely for issuance upon the conversion of shares of Class A Preferred
Stock as herein provided, free from any preemptive rights, the maximum number
of shares of Common Stock and Class B Preferred Stock as shall from time to
time be issuable upon the conversion of all the shares of Class A Preferred
Stock then outstanding.
Section 6. Redemption at the Option of the Corporation.
_________ ___________________________________________
(A) The Class A Preferred Stock shall be redeemable, in whole or in
part, at the option of the Corporation at any time at the Stated Value, plus
an amount equal to all accrued and unpaid dividends thereon to the date fixed
for redemption (the close of business on such date being referred to as the
"Redemption Date"); provided that such redemption may be made on or after
________
December 20, 1990 and prior to July 20, 1995 only if (i) the Corporation shall
have requested that the trustee of the Plan repay the indebtedness incurred by
such trustee to purchase the shares of Class A Preferred Stock and (ii) either
(x) Section 404(k) of the Code (as hereinafter defined) is repealed or amended
or the Internal Revenue Service or the Treasury Department promulgates a
Revenue Ruling or Regulation or a federal Court of Appeals issues a decision
involving the Corporation, at any time on or after December 20, 1990 and prior
to July 20, 1995 with the effect that less than 100% of the dividends payable
on the shares of any capital stock of the Corporation including, without
limitation, Class A Preferred Stock, Class B Preferred Stock or Common Stock
held in the Plan is deductible by the Corporation, when paid to participants
in the Plan or their beneficiaries or used to repay indebtedness as described
in Section 404(k) of the Code, from its gross income for purposes of
determining its liability for the federal income tax imposed by Section 11 of
the Code or (y) the Code is amended at any time on or after December 20, 1990
and prior to July 20, 1995 (other than to change the rate of any existing tax
imposed by the Code) or the Internal Revenue Service or the Treasury
Department promulgates a Revenue Ruling or Regulation or a federal Court of
Appeals issues a decision involving the Corporation, with the effect that the
Corporation's liability for the alternative minimum tax imposed by Section 55
of the Code, the
-11-
general federal income tax imposed by Section 11 of the Code or any other tax
hereafter imposed by the Code is increased solely by reason of its claiming a
deduction in respect of dividends paid on the shares of any capital stock of
the Corporation including, without limitation, Class A Preferred Stock,
Class B Preferred Stock or Common Stock held in the Plan in a manner
consistent with Section 404(k) of the Code. Payment of the redemption price
shall be made by the Corporation in cash or shares of Common Stock or a
combination thereof, as permitted by paragraph (C) of this Section 6. From
and after the Redemption Date, dividends on shares of Class A 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. No
interest shall accrue on the redemption price after the Redemption Date. If
less than all of the outstanding shares of Class A Preferred Stock are to be
redeemed, the Corporation shall either redeem a portion of the shares of each
holder determined pro rata based on the number of shares held by each holder
or shall select the shares to be redeemed by lot or as may be otherwise
determined by the Board of Directors of the Corporation.
(B) Unless otherwise required by law, notice of redemption pursuant to
paragraph (A) of this Section 6 will be sent to the holders of Class A
Preferred Stock at the address shown on the books of the Corporation or any
transfer agent for the Class A Preferred Stock by first class mail, postage
prepaid, mailed not less than thirty (30) days nor more than sixty (60) days
prior to the Redemption Date. Such Class A Preferred Stock shall continue to
be entitled to the conversion rights provided in Section 5 hereof through such
Redemption Date. Each such notice shall state: (i) the Redemption Date; (ii)
the total number of shares of the Class A 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 and the intended form of payment; (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) a summary of the conversion rights
of the shares to be redeemed, the period within which conversion rights may be
exercised, and the Conversion Ratio in effect at the time. Upon surrender of
the certificate for any shares so called for redemption and not previously
converted (or upon giving the notice of redemption in the case of
uncertificated shares), but not earlier than the Redemption Date, the
Corporation shall pay to the holder of such shares or its designee the
redemption price set forth pursuant to this Section 6.
(C) The Corporation, at its option, may make payment of the redemption
price required upon redemption of shares of Class A Preferred Stock pursuant
to Section 6 or 7 hereof in cash or in shares of Common Stock or in a
combination of such shares and cash, any such shares of Common Stock to be
valued for such purpose at their Fair Market Value (as defined in Section
9(F)(iii)) on the Redemption Date. Any shares of Common Stock so issued or
delivered (or issued or delivered pursuant to Section 7) shall be deemed to
have been issued or delivered to the holder of the Class A Preferred Stock as
of the Redemption Date and such holder shall be deemed to have become the
record holder thereof as of the Redemption Date.
Section 7. Other Redemption Rights.
_________ _______________________
Shares of Class A Preferred Stock shall be redeemed by the Corporation
for cash or, if the Corporation so elects, in shares of Common Stock, or a
combination of such shares and cash (any such shares of Common Stock to be
valued for such purpose in accordance with Section 6(C)), at a redemption
price equal to the Stated Value plus accrued and unpaid dividends thereon to
the date fixed for redemption, at the option of the holder, at any time and
-12-
from time to time upon notice to the Corporation given not less than five (5)
Business Days prior to the Redemption Date fixed by the holder in such notice
(i) in the event that the Plan is determined by the Internal Revenue Service
not to be qualified within the meaning of Sections 401(a) and 4975(e)(7) of
the Internal Revenue Code of 1986, as amended from time to time (the "Code")
or (ii) in the event that the Plan is terminated in accordance with its terms.
Section 8. Consolidation, Combination, Merger, etc.
_________ ________________________________________
(A) In the event that the Corporation shall consummate any
consolidation, combination, merger or substantially similar transaction,
pursuant to which the outstanding shares of Common Stock are by operation of
law exchanged solely for or changed, reclassified or converted solely into
stock of any successor or resulting corporation (including the Corporation)
that constitutes "qualifying employer securities" with respect to a holder of
Class A Preferred Stock within the meaning of Section 409(1) of the Code and
Section 407(d)(5) of the Employee Retirement Income Security Act of 1974, as
amended, or any successor provisions of law, and, if applicable, for a cash
payment in lieu of fractional shares, if any, the shares of Class A Preferred
Stock of such holder shall in connection therewith be exchanged for or
converted into preferred stock of such successor or resulting corporation,
having in respect of such corporation insofar as possible the same powers,
preferences and relative, participating, optional or other special rights
(including the redemption rights provided by Sections 6, 7 and 8 hereof), and
the qualifications, limitations or restrictions thereon, that the Class A
Preferred Stock had immediately prior to such transaction, except that after
such transaction each share of the Class A Preferred Stock shall be
convertible, otherwise on the terms and conditions provided by Section 5
hereof, into the number and kind of qualifying employer securities so
receivable by a holder of the number of shares of Common Stock into which such
shares of Class A Preferred Stock could have been converted pursuant to the
first sentence of Section 5(A) hereof immediately prior to such transaction;
provided, however, that if by virtue of the structure of such transaction, a
________ _______
holder of Common Stock is required to make an election with respect to the
nature and kind of consideration to be received in such transaction, such
holder of shares of Class A Preferred Stock shall be entitled to make an
equivalent election as to the nature and kind of consideration it shall
receive, and if such election cannot practicably be made by the holders of the
Class A Preferred Stock, then the shares of Class A Preferred Stock shall, by
virtue of such transaction and on the same terms as apply to the holders of
Common Stock, be convertible into or exchangeable for the aggregate amount of
qualifying employer securities (payable in like kind and proportion)
receivable by a holder of the number of shares of Common Stock into which such
shares of Class A Preferred Stock could have been converted immediately prior
to such transaction if such holder of Common Stock failed to exercise any
rights of election to receive any kind or amount of qualifying employer
securities receivable upon such transaction (provided that, if the kind or
________
amount of qualifying employer securities receivable upon such transaction is
not the same for each non-electing share, then the kind and amount of
qualifying employer securities receivable upon such transaction for each such
non-electing share shall be the kind and amount so receivable per share by a
plurality of the non-electing shares). The conversion rights of the class of
preferred stock of such successor or resulting corporation for which the Class
A Preferred Stock is exchanged or into which it is converted, shall
successively be subject to adjustments pursuant to Section 9 hereof after any
such transactions as nearly equivalent as practicable to the adjustments
provided for by such Section prior to such transaction. The Corporation shall
not consummate any such merger, consolidation or similar transaction unless
the successor or resulting corporation shall have agreed to recognize and
honor the rights of the holders of Series A Preferred Stock set forth in this
Section 8(A).
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(B) In the event that the Corporation shall consummate any
consolidation, combination, merger or substantially similar transaction,
pursuant to which the outstanding shares of Common Stock are by operation of
law exchanged for or changed, reclassified or converted into other stock or
securities or cash or any other property, or any combination thereof, other
than solely qualifying employer securities (as referred to in Section 8(A))
and cash payments, if applicable, in lieu of fractional shares, outstanding
shares of Class A Preferred Stock shall, without any action on the part of the
Corporation or any holder thereof (but subject to Section 8(C)), be deemed to
have been converted pursuant to the first sentence of Section 5(A) hereof
immediately prior to the consummation of such merger, consolidation,
combination or similar business combination transaction into the number of
shares of Common Stock into which such shares of Class A Preferred Stock could
have been converted pursuant to the first sentence of Section 5(A) hereof at
such time so that each share of Class A Preferred Stock shall, by virtue of
such transaction and on the same terms as apply to the holders of Common
Stock, be converted into or exchanged for the aggregate amount of stock,
securities, cash or other property (payable in like kind and proportion)
receivable by a holder of the number of shares of Common Stock into which such
share of Class A Preferred Stock could have been converted pursuant to the
first sentence of Section 5(A) hereof immediately prior to such transaction;
provided, however, that if by virtue of the structure of such transaction, a
________ _______
holder of Common Stock is required to make an election with respect to the
nature and kind of consideration to be received in such transaction, the
holder of Class A Preferred Stock shall be entitled to make an equivalent
election as to the kind of consideration it shall receive, and if such
election cannot practicably be made by the holders of the Class A Preferred
Stock, then the shares of Class A Preferred Stock shall, by virtue of such
transaction and on the same terms as apply to the holders of Common Stock, be
converted into or exchanged for the aggregate amount of stock, securities,
cash or other property (payable in like kind and proportion) receivable by a
holder of the number of shares of Common Stock into which such shares of Class
A Preferred Stock could have been converted immediately prior to such
transaction if such holder of Common Stock failed to exercise any rights of
election as to the kind or amount of stock, securities, cash or other property
receivable upon such transaction (provided that, if the kind or amount of
________ ____
stock, securities, cash or other property receivable upon such transaction is
not the same for each non-electing share, then the kind and amount of stock,
securities, cash or other property receivable upon such transaction for each
such non-electing share shall be the kind and amount so receivable per share
by a plurality of the non-electing shares).
(C) In the event the Corporation shall enter into any agreement
providing for any consolidation, combination, merger or substantially similar
transaction described in Section 8(B), then the Corporation shall as soon as
practicable thereafter (and in any event at least twenty (20) business days
before consummation of such transaction) give notice of such agreement and the
material terms thereof to each holder of Class A Preferred Stock and each
holder shall have the right to elect, by written notice to the Corporation, to
receive, upon consummation of such transaction (if and when such transaction
is consummated), from the Corporation or the successor of the Corporation, in
redemption and retirement of such Class A Preferred Stock, a cash payment
equal to the amount payable in respect of shares of Class A Preferred Stock
upon redemption pursuant to Section 6(A) hereof as if the date of the
consummation of such transaction was the Redemption Date. No such notice of
redemption shall be effective unless given to the Corporation prior to the
close of business on the second Business Day prior to consummation of such
transaction, unless the Corporation or the successor of the Corporation shall
waive such prior notice, but any notice of redemption so given prior to such
time may be withdrawn by notice of withdrawal given to the Corporation prior
to the close of business on the second Business Day prior to consummation of
such transaction.
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Section 9. Anti-dilution Adjustments.
_________ _________________________
(A) In the event the Corporation shall, at any time or from time to time
while any of the shares of the Class A Preferred Stock are outstanding, (i)
pay a dividend or make a distribution in respect of the Common Stock in shares
of Common Stock, (ii) subdivide the outstanding shares of Common Stock or
(iii) combine the outstanding shares of Common Stock into a smaller number of
shares, in each case whether by reclassification of shares, recapitalization
of the Corporation (including a recapitalization effected by a merger or
consolidation to which Section 8 hereof does not apply) or otherwise, the
Conversion Ratio in effect immediately prior to such action shall be adjusted
by multiplying such Conversion Ratio by a fraction, the numerator of which is
the number of shares of Common Stock outstanding immediately after such event,
and the denominator of which is the number of shares of Common Stock
outstanding immediately before such event. An adjustment made pursuant to
this Section 9(A) shall be given effect, upon payment of such a dividend or
distribution, as of the record date for the determination of shareholders
entitled to receive such dividend or distribution (on a retroactive basis) and
in the case of a subdivision or combination shall become effective immediately
as of the effective date thereof.
(B) In the event the Corporation shall, at any time or from time to time
while any shares of Class A Preferred Stock are outstanding, issue rights,
options or warrants to all holders of its outstanding Common Stock, without
any charge to such holders, entitling them (for a period expiring within
forty-five (45) days after the record date mentioned below) to subscribe for
or purchase shares of Common Stock at a price per share which is more than 2%
lower at the record date mentioned below than the then Current Market Price
per share of Common Stock, the Conversion Ratio in effect immediately prior to
such action shall, subject to paragraphs (D) and (E) of this Section 9, be
adjusted by multiplying such Conversion Ratio by a fraction (i) the numerator
of which shall be the number of shares of Common Stock outstanding on the date
of issuance of such rights, options or warrants plus the number of additional
shares of Common Stock issued upon exercise thereof, and (ii) the denominator
of which shall be the number of shares of Common Stock outstanding on the date
of issuance of such rights, options or warrants plus the number of shares
which the aggregate offering price of the total number of shares of Common
Stock so issued would purchase at the then Current Market Price per share of
Common Stock. Such adjustment shall be made whenever such rights, options or
warrants have expired, and shall become effective retroactively immediately
after the record date for the determination of shareholders entitled to
receive such rights, options or warrants on the basis of the number of rights,
options or warrants actually exercised.
(C) In the event the Corporation shall, at any time or from time to time
while any of the shares of Class A Preferred Stock are outstanding, make an
Extraordinary Distribution (as defined in Section 9(F)(ii)) in respect of the
Common Stock, whether by dividend, distribution, reclassification of shares or
recapitalization of the Corporation (other than a recapitalization or
reclassification effected by a merger, combination or consolidation to which
Section 8 hereof applies), the Conversion Ratio in effect immediately prior to
such Extraordinary Distribution shall, subject to paragraphs (D) and (E) of
this Section 9, be adjusted by multiplying such Conversion Ratio by a
fraction, the numerator of which shall be the product of (i) the number of
shares of Common Stock outstanding immediately before such Extraordinary
Distribution and (ii) the Fair Market Value of a share of Common Stock on the
Valuation Date (as defined in Section 9(F)(vi)) with respect to an
Extraordinary Distribution, and the denominator of which shall be (i) the
product of (x) the number of shares of Common Stock outstanding immediately
before such Extraordinary Distribution and (y) the Fair Market Value of a
share of Common
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Stock on the Valuation Date with respect to an Extraordinary Distribution,
minus (ii) the Fair Market Value of the Extraordinary Distribution on the
_____
Valuation Date. The Corporation shall send each holder of Class A Preferred
Stock notice of its intent to make any Extraordinary Distribution at the same
time as, or as soon as practicable after, such intent is first communicated
(including by announcement of a record date in accordance with the rules of
the principal stock exchange on which the Common Stock is listed or admitted
to trading) to holders of Common Stock. Such notice shall indicate the
intended record date and the amount and nature of such dividend or
distribution, and the Conversion Ratio in effect at such time.
(D) Notwithstanding any other provisions of this Section 9, the
Corporation shall not be required to make any adjustment of the Conversion
Ratio unless such adjustment would require an increase or decrease of at least
one percent (1%) in the Conversion Ratio. Any lesser adjustment shall be
carried forward and shall be made no later than the time of, and together
with, the next subsequent adjustment which, together with any adjustment or
adjustments so carried forward, shall amount to an increase or decrease of at
least one percent (1%) in the Conversion Ratio.
(E) The Corporation shall be entitled to make such additional
adjustments in the Conversion Ratio, in addition to those required by the
foregoing provisions of this Section 9, as shall be necessary in order that
any dividend or distribution in shares of capital stock of the Corporation,
subdivision, reclassification or combination of shares of stock of the
Corporation or any recapitalization of the Corporation shall not be taxable to
holders of the Common Stock.
(F) For purposes of this Exhibit A, the following definitions shall
apply:
(i) "Business Day" shall mean each day that is not a Saturday, Sunday or
a day on which state or federally chartered banking institutions in New York
are required or authorized to be closed.
(ii) "Extraordinary Distribution" shall mean any dividend or other
distribution (effected while any of the shares of Class A Preferred Stock are
outstanding) of (x) cash to the extent that such dividend or distribution when
added to the amount of all cash dividends and distributions paid during the
preceding period of twelve (12) calendar months exceeds fifteen percent (15%)
of the aggregate Fair Market Value of all shares of Common Stock outstanding
on the declaration date for such Extraordinary Distribution and/or (y) any
shares of capital stock of the Corporation (other than shares of Common
Stock), other securities of the Corporation, evidences of indebtedness of the
Corporation or any other person or any other property (including shares of any
subsidiary of the Corporation), or any combination thereof, but excluding
rights, options or warrants to which Section 9(B) refers (without regard to
the subscription or purchase price provided for therein).
(iii) "Fair Market Value" shall mean, as to shares of Common Stock or
any other class of publicly traded capital stock or securities of the
Corporation or any other issuer which are publicly traded, the average of the
Current Market Prices of such shares or securities for each day of the
Adjustment Period. The "Fair Market Value" of any security which is not
publicly traded or of any other property shall mean the fair value thereof as
determined by an independent investment banking or appraisal firm experienced
in the valuation of such securities or property, which firm shall be selected
in good faith by the Board of Directors of the Corporation or a committee
thereof, or, if no such investment banking or appraisal firm is in the good
faith judgment of the Board
-16-
of Directors or such committee available to make such determination, as
determined in good faith by the Board of Directors of the Corporation or such
committee.
(iv) "Current Market Price" of publicly traded shares of Common Stock or
any other class of capital stock or other security of the Corporation or any
other issuer shall mean (I) the last reported sales price, regular way, or, if
no sale takes place on such day, the average of the reported closing bid and
asked prices, regular way, in either case as reported on the Composite Tape
for New York Stock Exchange transactions (the "Composite Tape") or, (II) if
such security is not listed or admitted to trading on the New York Stock
Exchange (the "NYSE"), on the principal national securities exchange on which
such security is listed or admitted to trading or, (III) if not listed or
admitted to trading on any national securities exchange, on the National
Market System of the National Association of Securities Dealers, Inc.
Automated Quotation System ("NASDAQ National Market System") or, (IV) if such
security is not quoted on the NASDAQ National Market System, the average of
the closing bid and asked prices on each such day in the over-the-counter
market as reported by NASDAQ or, (V) if bid and asked prices for such security
on each such day shall not have been reported through NASDAQ, the average of
the bid and asked prices for such day as furnished by any NYSE member firm
regularly making a market in such security selected for such purpose by the
Board of Directors of the Corporation or a committee thereof, in each case, on
each trading day during the Adjustment Period; provided, however, in
________ _______
determining the Current Market Price, the value (as reasonably determined by
the Board of Directors of the Corporation or a committee thereof) of any "due-
bill" or similar instrument which is then associated with a share of Common
Stock or any other class of capital stock or other security, shall be
deducted.
(v) "Adjustment Period" shall mean the period of five (5) consecutive
trading days preceding, and including, the date as of which the Fair Market
Value of a security is to be determined.
(vi) "Valuation Date" with respect to an Extraordinary Distribution
shall mean the date that is five (5) business days prior to the record date
for such Extraordinary Distribution.
(vii) "Plan" shall mean collectively the Corporation's Thrift and ESOP
plans and its Thrift and ESOP Trust.
(G) Whenever an adjustment to the Conversion Ratio and the related
voting rights of the Class A Preferred Stock is required pursuant hereto, the
Corporation shall forthwith deliver to the transfer agent(s) for the Common
Stock, the Class A Preferred Stock and Class B Preferred Stock, as the case
may be, and file with the Secretary of the Corporation, a statement signed by
an officer of the Corporation stating the adjusted Conversion Ratio determined
as provided herein, and the voting rights (as appropriately adjusted), of the
Class A Preferred Stock. Such statement shall set forth in reasonable detail
such facts as shall be necessary to show the reason and the manner of
computing such adjustment, including any determination of Fair Market Value
involved in such computation. Promptly after each adjustment to the
Conversion Ratio and the related voting rights of the Class A Preferred Stock,
the Corporation shall mail a notice thereof and of the then prevailing
Conversion Ratio to each holder of Class A Preferred Stock.
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Section 10. Ranking; Cancellation of Shares.
__________ _______________________________
(A) The Class A Preferred Stock shall rank senior to the Common Stock
and the Class B Preferred Stock as to the payment of dividends and senior to
the Common Stock as to the distribution of assets on liquidation, dissolution
and winding-up of the Corporation, and, unless otherwise provided in the
Certificate of Incorporation, as the same may be amended, the Class A
Preferred Stock shall rank on a parity with all other classes or series of the
Corporation's preferred stock, as to payment of dividends and the distribution
of assets on liquidation, dissolution or winding-up.
(B) Any shares of Class A Preferred Stock acquired by the Corporation by
reason of the conversion or redemption of such shares as provided hereby, or
otherwise so acquired, shall be cancelled as shares of Class A Preferred Stock
and restored to the status of authorized but unissued shares of preferred
stock of the Corporation, undesignated as to classes or series, and may
thereafter be reissued as part of a new class or series of such preferred
stock as permitted by law.
-18-
PART II
Class B Preferred Stock
Section 1. Designation and Amount; Special Purpose Restricted Transfer Issue.
_________ _________________________________________________________________
(A) The shares of this class of preferred stock shall be designated as
"Class B Preferred Stock" and the aggregate number of shares constituting such
class which the Corporation shall have the authority to issue is 100,000,000.
(B) Shares of Class B Preferred Stock shall be issued only to a trustee
acting on behalf the Plan. In the event of any transfer of shares of Class B
Preferred Stock to any person other than the Corporation or the trustee of the
Plan, the shares of Class B Preferred Stock so transferred, upon such transfer
and without any further action by the Corporation or the holder, shall be
automatically converted into shares of the Corporation's Common Stock (the
"Common Stock") pursuant to Section 5 hereof and no such transferee shall have
any of the voting powers, preferences or relative, participating, optional or
special rights ascribed to shares of Class B Preferred Stock hereunder but,
rather, only the powers and rights pertaining to the Common Stock into which
such shares of Class B Preferred Stock shall be so converted. In the event of
such a conversion, the transferee of the shares of Class B Preferred Stock
shall be treated for all purposes as the record holder of the shares of Common
Stock into which such shares of Class B Preferred Stock have been automatically
converted as of the date of such transfer. Certificates representing shares of
Class B Preferred Stock shall be legended to reflect such restrictions on
transfer. Notwithstanding the foregoing provisions of this Section 1(B),
shares of Class B Preferred Stock may be converted into shares of Common Stock
pursuant to Section 5 hereof and the shares of Common Stock issued upon such
conversion may be transferred by the holder thereof as permitted by law.
Section 2. Dividends and Distributions.
_________ ___________________________
(A) Class B Preferred Stock shall be entitled to receive such dividends
and other distributions in cash, stock or property of the Corporation as may
be declared thereon by the Board of Directors from time to time out of assets
or funds of the Corporation legally available therefor, but only to the extent
hereinafter provided and no more. If at any time a dividend or other
distribution is declared on the Common Stock (whether in cash, property or
other securities), including as a result of recapitalization or
reclassification, a dividend or distribution shall simultaneously be declared
on each share of Class B Preferred Stock in an amount per share equal to 115%
of the dividend or distribution declared on each share of Common Stock and
shall be payable on the same date as such Common Stock dividend or
distribution is payable. The record date for holders of shares of Class B
Preferred Stock for any such dividend or distribution shall be the same as the
record date for holders of shares of Common Stock for the related dividend or
distribution. Notwithstanding the foregoing, the Corporation shall not at any
time after the first issuance of a share of Class B Preferred Stock (i)
declare any dividend on Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock, or (iii) combine the outstanding
Common Stock into a smaller number of such shares, unless in each such case
shares of Class B Preferred Stock shall become entitled to a dividend in Class
B Preferred Stock, be subdivided or be combined in the same proportion as of
the effective date of such event.
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Section 3. Voting Rights. The holders of shares of Class B Preferred
_________ _____________
Stock shall have the following voting rights:
(A) The holders of Class B Preferred Stock shall be entitled to vote on
all matters submitted to a vote of the holders of Common Stock of the
Corporation, voting together as one class with the holders of Common Stock and
any other class or series of preferred stock so voting as one class. Each
share of the Class B Preferred Stock shall entitle the holder thereof to one
vote.
(B) Except as otherwise required by law or set forth herein, holders of
Class B Preferred Stock shall have no special voting rights and their consent
shall not be required (except to the extent they are entitled to vote with
holders of Common Stock and any other class or series of Preferred Stock as
set forth herein) for the taking of any corporate action.
Section 4. Liquidation, Dissolution or Winding-Up.
_________ ______________________________________
(A) Upon any voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation, the holders of Class B Preferred Stock shall be
entitled to receive out of assets of the Corporation which remain after
satisfaction in full of all valid claims of creditors of the Corporation and
which are available for payment to shareholders, and subject to the rights of
the holders of any stock of the Corporation ranking senior to or on a parity
with the Class B Preferred Stock in respect of distributions upon liquidation,
dissolution or winding-up of the Corporation, before any amount shall be paid
or distributed among the holders of Common Stock or any other shares ranking
junior to the Class B Preferred Stock in respect of distributions upon
liquidation, dissolution or winding-up of the Corporation, liquidating
distributions in an amount of $45 per share (the "Liquidation Amount") of
Class B Preferred Stock plus an amount equal to all required and unpaid
dividends thereon to the date fixed for distribution and no more. In the
event shares of Class B Preferred Stock are subdivided or combined or any
dividend is declared in such shares to holders thereof, then the Liquidation
Amount shall be proportionately adjusted as of the effective date of such
event. If upon any liquidation, dissolution or winding-up of the Corporation,
the amounts payable with respect to the Class B Preferred Stock and any other
stock ranking as to a distribution on such event on a parity with the Class B
Preferred Stock are not paid in full, the holders of the Class B Preferred
Stock and such other stock shall share ratably in any distribution of assets
in proportion to the full respective preferential amounts to which they are
entitled.
(B) Neither the merger, consolidation or combination of the Corporation
with or into any other corporation, nor the sale, lease, transfer or other
exchange of all or any portion of the assets of the Corporation (or any
purchase or redemption of some or all of the shares of any class or series of
stock 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 4,
but the holders of Class B Preferred Stock shall nevertheless be entitled in
the event of any such transaction to the rights provided by Section 6 hereof.
(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 Class B Preferred Stock and any other class or series of preferred
stock in such circumstances shall be payable, and stating that such payment
will be made only after the surrender (or submission for notation of any
partial payment) of such
-20-
holder's certificates representing shares of Class B Preferred Stock, except
in the case of Class B Preferred Stock represented by uncertificated shares,
shall be given by first class mail, postage prepaid, mailed not less than
twenty (20) days prior to any payment date stated therein, to the holders of
Class B Preferred Stock, at the address shown on the books of the Corporation
or any transfer agent for the Class B Preferred Stock.
Section 5. Conversion into Common Stock.
_________ ____________________________
(A) A holder of shares of Class B Preferred Stock shall be entitled at
any time to cause any or all of such shares to be converted into one share of
Common Stock for each share of Class B Preferred Stock.
(B) Any holder of shares of Class B Preferred Stock desiring to convert
such shares into shares of Common Stock shall surrender the certificate or
certificates representing the shares of Class B Preferred Stock being
converted, duly assigned or endorsed for transfer to the Corporation (or
accompanied by duly executed stock powers relating thereto) in case of a
request for registration in a name other than that of such holder, at the
offices of the transfer agent for the Common Stock, accompanied by written
notice of conversion. Such notice of conversion shall specify (i) the number
of shares of Class B Preferred Stock to be converted and the name or names in
which such holder wishes the certificate or certificates for Common Stock and
for any shares of Class B Preferred Stock not to be so converted to be issued
(or the name or names in which such shares are to be registered in the event
that they are to be uncertificated) and (ii) the address or addresses to which
such holder wishes delivery to be made of such new certificates to be issued
upon such conversion.
(C) A conversion of shares of Class B Preferred Stock into shares of
Common Stock made at the option of the holder thereof shall be effective
immediately before the close of business on the day of the later of (i) the
surrender to the Corporation of the certificate or certificates for the shares
of Series B Preferred Stock to be converted, duly assigned or endorsed for
transfer to the Corporation (or accompanied by duly executed stock powers
relating thereto) in case of a request for registration in a name other than
that of such holder and (ii) the giving of the notice of conversion as
provided herein (the "Conversion Date"). On and after the Conversion Date,
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.
(D) Promptly after the Conversion Date for shares of Class B Preferred
Stock to be converted, the Corporation or the transfer agent for the Common
Stock shall issue and send by hand delivery (with receipt to be acknowledged)
or by first class mail, postage prepaid, to the holder of such shares or to
such holder's designee, at the address designated by such holder, a
certificate or certificates for 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
Class B Preferred Stock, only part of which are to be converted, the
Corporation or the transfer agent for the Common Stock shall issue and deliver
to such holder or such holder's designee a new certificate or certificates
representing the number of shares of Class B Preferred Stock which shall not
have been converted.
(E) The Corporation shall at all times reserve and keep available out of
its authorized and unissued and/or treasury Common Stock solely for issuance
upon the conversion of shares of Class B Preferred Stock as herein provided,
free from any preemptive rights, the
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maximum number of shares of Common Stock as shall from time to time be
issuable upon the conversion of all the shares of Class B Preferred Stock then
outstanding.
(F) At the option of the Corporation, all shares of the Class B
Preferred Stock may be converted at any time into Common Stock as provided in
this Section 5. Unless otherwise required by law, notice of conversion
pursuant to this paragraph will be sent to the holders of Class B Preferred
Stock at the address shown on the books of the Corporation or any transfer
agent for the Class B Preferred Stock by first class mail, postage prepaid,
mailed not less than one (1) day prior to the conversion date. Each such
notice shall state: (i) the date when such conversion shall be effective; and
(ii) the place or places where certificates for such shares are to be
surrendered in exchange for certificates for Common Stock. As of the
commencement of business on the conversion date, a holder shall be treated for
all purposes as the holder of the number of shares of Common Stock issuable
upon conversion, without any of the powers, preferences or rights of a holder
of Class B Preferred Stock. Upon surrender of the certificate for shares so
converted, the Corporation shall issue a certificate representing the shares
of Common Stock into which such shares of Class B Preferred Stock have been
converted.
Section 6. Consolidation, Combination, Merger, etc.
_________ _______________________________________
(A) In the event that the Corporation shall consummate any
consolidation, combination, merger or substantially similar transaction,
pursuant to which the outstanding shares of Common Stock are by operation of
law exchanged solely for or changed, reclassified or converted solely into
stock of any successor or resulting corporation (including the Corporation)
that constitutes "qualifying employer securities" with respect to a holder of
Class B Preferred Stock within the meaning of Section 409(1) of the Code and
Section 407(d)(5) of the Employee Retirement Income Security Act of 1974, as
amended, or any successor provisions of law, and, if applicable, for a cash
payment in lieu of fractional shares, if any, the shares of Class B Preferred
Stock of such holder shall in connection therewith be exchanged for or
converted into preferred stock of such successor or resulting corporation,
having in respect of such corporation insofar as possible the same powers,
preferences and relative, participating, optional or other special rights, and
the qualifications, limitations or restrictions thereon, that the Class B
Preferred Stock had immediately prior to such transaction, except that after
such transaction each share of the Class B Preferred Stock shall be
convertible, otherwise on the terms and conditions provided by Section 5
hereof, into the number and kind of qualifying employee securities so
receivable by a holder of one share of Common Stock; provided, however, that
________ _______
if by virtue of the structure of such transaction, a holder of Common Stock is
required to make an election with respect to the nature and kind of
consideration to be received in such transaction, such holder of shares of
Class B Preferred Stock shall be entitled to make an equivalent election as to
the nature and kind of consideration it shall receive, and if such election
cannot practicably be made by the holders of the Class B Preferred Stock, then
the shares of Class B Preferred Stock shall, by virtue of such transaction and
on the same terms as apply to the holders of Common Stock, be convertible into
or exchangeable for the aggregate amount of qualifying employer securities
(payable in like kind and proportion) receivable by a holder of one share of
Common Stock if such holder of Common Stock failed to exercise any rights of
election to receive any kind or amount of qualifying employer securities
receivable upon such transaction (provided that if the kind or amount of
________
qualifying employer securities receivable upon such transaction is not the
same for each non-electing share, then the kind and amount of qualifying
employer securities receivable upon such transaction for each non-electing
share shall be the kind and amount so receivable per share by a plurality of
the non-electing shares). The Corporation shall not consummate any such
merger, consolidation or similar transaction unless the successor or resulting
corporation shall
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have agreed to recognize and honor the rights of the holders of Class B
Preferred Stock set forth in this Section 6(A).
(B) In the event that the Corporation shall consummate any
consolidation, combination, merger or substantially similar transaction,
pursuant to which the outstanding shares of Common Stock are by operation of
law exchanged for or changed, reclassified or converted into other stock or
securities or cash or any other property, or any combination thereof, other
than solely qualifying employer securities (as referred to in Section 6(A))
and cash payments, if applicable, in lieu of fractional shares, each
outstanding share of Class B Preferred Stock shall, without any action on the
part of the Corporation or any holder thereof, be deemed to have been
converted immediately prior to the consummation of such merger, consolidation,
combination or similar transaction into one share of Common Stock so that each
share of Class B Preferred Stock shall, by virtue of such transaction and on
the same terms as apply to the holders of Common Stock, be converted into or
exchanged for the aggregate amount of stock, securities, cash or other
property (payable in like kind and proportion) receivable by a holder of one
share of Common Stock; provided, however, that if by virtue of the structure
________ _______
of such transaction, a holder of Common Stock is required to make an election
with respect to the nature and kind of consideration to be received in such
transaction, such holder of shares of Class B Preferred Stock shall be
entitled to make an equivalent election as to the nature and kind of
consideration it shall receive, and if such election cannot practicably be
made by the holders of the Class B Preferred Stock, then each share of Class B
Preferred Stock shall, by virtue of such transaction and on the same terms as
apply to the holders of Common Stock, be converted into or exchanged for the
aggregate amount of stock, securities, cash or other property (payable in like
kind and proportion) receivable by a holder of one share of Common Stock if
such holder of Common Stock failed to exercise any rights of election as to
the kind or amount of stock, securities, cash or other property receivable
upon such transaction (provided that if the kind or amount of stock,
________
securities, cash or other property receivable upon such transaction is not the
same for each non-electing share, then the kind and amount of stock,
securities, cash or other property receivable upon such transaction for such
non-electing share shall be the kind and amount so receivable per share by a
plurality of the non-electing shares).
Section 7. Ranking; Cancellation of Shares.
_________ _______________________________
(A) The Class B Preferred Stock shall rank on a parity with the Common
Stock as to the payment of dividends and senior to the Common Stock as to the
distribution of assets on liquidation, dissolution and winding-up of the
Corporation, and, unless otherwise provided in the Certificate of
Incorporation, as the same may be amended, the Class B Preferred Stock shall
rank junior to all other classes or series of the Corporation's preferred
stock as to payment of dividends and on a parity with all other such classes
or shares of preferred stock as to the distribution of assets on liquidation,
dissolution or winding-up.
(B) Any shares of Class B Preferred Stock acquired by the Corporation by
reason of the conversion of such shares as provided hereby, or otherwise so
acquired, shall be cancelled as shares of Class B Preferred Stock and restored
to the status of authorized but unissued shares of preferred stock, without
par value, of the Corporation, undesignated as to classes or series, and may
thereafter be reissued as part of a new class or series of such preferred
stock as permitted by law.
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PART III
Miscellaneous
Section 1. 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 (3) Business Days after the mailing thereof if sent by
registered mail (unless first class mail shall be specifically permitted for
such notice under the terms of this Exhibit A) with postage prepaid,
addressed: (i) if to the Corporation, to its office at 1251 Avenue of the
Americas, New York, NY 10020 (Attention: Treasurer) or to the transfer agent
(if any) for the Class A Preferred Stock or Class B Preferred Stock, as the
case may be or (ii) if to any holder of the Class A Preferred Stock, the Class
B Preferred Stock or the 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 Class
A Preferred Stock, the Class B Preferred Stock or the Common Stock, as the
case may be) or (iii) to such other address as the Corporation shall have
designated by notice similarly given.
(B) In the event that, at any time as a result of an adjustment made
pursuant to Section 8 or 9 of Part I, the holder of any share of the Class A
Preferred Stock upon thereafter surrendering such shares for conversion shall
become entitled to receive any shares or other securities of the Corporation
other than shares of Common Stock, the Conversion Ratio in respect of such
other shares or securities so receivable upon conversion of shares of Class A
Preferred Stock shall thereafter be adjusted, and shall be subject to further
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
Sections 8 or 9 of Part I, and the provisions of each of the other Sections
hereof with respect to the Common Stock shall apply on like or similar terms
to any such other shares or securities. Any determination in good faith by
the Corporation as to any adjustment of the Conversion Ratio pursuant to this
Section 1(B) shall be conclusive.
(C) The Corporation shall pay any and all issuance, stock transfer and
documentary stamp taxes that may be payable in respect of any issuance or
delivery of shares of Class A Preferred Stock, Class B Preferred Stock or
Common Stock or other securities issued upon conversion of Class A Preferred
Stock or Class B Preferred Stock, as the case may be, pursuant hereto or
certificates representing such shares or securities. The Corporation shall
not, however, be required to pay any such tax which may be payable in respect
of any transfer involved in the issuance or delivery of shares of Class B
Preferred Stock or Common Stock or other securities in a name other than that
in which the shares of Class A Preferred Stock or Class B 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 for
issuance, transfer or documentary stamp taxes or has established, to the
satisfaction of the Corporation, that such tax has been paid or is not
payable.
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(D) In the event that a holder of shares of Class A Preferred Stock or
Class B Preferred Stock, as the case may be, shall not by written notice
designate the name in which (i) shares of Common Stock or Class B Preferred
Stock in the case of Class A Preferred Stock, (ii) shares of Common Stock in
the case of Class B Preferred Stock and (iii) any other securities in
accordance with this Exhibit A, to be issued upon conversion of such shares
should be registered or to whom payment upon redemption of shares of Class A
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 Class A Preferred Stock or Class B Preferred
Stock, as the case may be, 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) Unless otherwise provided in the Certificate of Incorporation, as
the same may be amended, all payments of (x) dividends upon the shares of any
class of stock and upon any other class of stock ranking on a parity with such
first class of stock with respect to such dividends shall be made pro rata, so
that amounts paid per share on such first class of stock and such other class
of stock shall in all cases bear to each other the same ratio that the
required dividends then payable per share on the shares of such first class of
stock and such other class of stock bear to each other and (y) distributions
on voluntary or involuntary dissolution, liquidation or winding-up or
otherwise made upon the shares of any class of stock and upon any other class
of stock ranking on a parity with such first class of stock with respect to
such distributions shall be made pro rata, so that amounts paid per share on
such first class of stock and such other class of stock shall in all cases
bear to each other the same ratio that the required distributions then payable
per share on the shares of such first class of stock and such other class of
stock bear to each other.
(F) The Corporation may appoint, and from time to time discharge and
change, a transfer agent for the Class A Preferred Stock or Class B Preferred
Stock, as the case may be. 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 Class A Preferred Stock or Class
B Preferred Stock, as the case may be. So long as there is a transfer agent
for a class of stock, a holder thereof shall give any notices to the
Corporation required hereunder to the transfer agent at the address of the
transfer agent last given by the Corporation.
(G) All references to Section numbers in any Part in this Exhibit A
shall refer only to that Part unless otherwise indicated. All terms defined
within a Part of this Exhibit A shall have the same meanings when used in any
other Part hereof, unless otherwise indicated.
(H) If the Corporation and the holder so agree, any shares of Class A
Preferred Stock or Class B Preferred Stock or any shares of Common Stock into
which the shares of Class A Preferred Stock or Class B Preferred Stock shall
be converted, may be uncertificated shares, provided that the names of the
________
holders of all uncertificated shares and the number of such shares held by
each holder shall be registered at the offices of the Corporation or the
transfer agent for such shares. In the event that any shares shall be
uncertificated, all references herein to the surrender or issuance of stock
certificates shall have no application to such uncertificated shares.
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(..continued)