RESTATED
CERTIFICATE OF INCORPORATION
OF
OLD REPUBLIC INTERNATIONAL CORPORATION
The Board of Directors, in a procedure authorized by Section
245 of the General Corporation Law of Delaware, approved and
adopted at a meeting held on May 19, 1994 the following Restated
Certificate of Incorporation. This document only restates and
integrates and does not further amend the provisions of the
corporation's Certificate of Incorporation duly filed with the
Secretary of State of Delaware on March 9, 1969 as heretofore
amended or supplemented, and there is no discrepancy between those
provisions and the provisions of this restated certificate.
FIRST: The name of the corporation is Old Republic International
Corporation.
SECOND: The address of its registered office in the State
of Delaware is 32 Loockerman Square, Suite L-100,
in the City of Dover 19901, County of Kent. The
name of its registered agent at such address is
Prentice-Hall Corporation System, Inc.
THIRD: The nature of the business or purposes to be conducted or
promoted are:
To acquire, own and dispose of the whole or any
part of the capital stock, securities, assets, or
obligations of other corporations; and
To engage in any lawful act or activity for which
corporations may be organized under the General
Corporation Law of Delaware.
FOURTH: The total number of shares of all classes of
capital stock which the Corporation shall have
authority to issue is Three Hundred Seventy-Five
Million (375,000,000) shares, divided into three
classes as follows:
Seventy Five Million (75,000,000) shares of
Preferred Stock of the par value of one cent ($.01)
per share (Preferred Stock).
Two Hundred Fifty Million (250,000,000) shares of
Common Stock of the par value of $1.00 per share
(Common Stock).
Fifty Million (50,000,000) shares of Class B Common
Stock of the par value of $1.00 per share (Class B
Common Stock).
The designations, powers, preferences and rights, and the
qualifications, limitations or restrictions of the above classes of
stock are as follows:
DIVISION I
Preferred Stock
1. The Board of Directors is expressly authorized at any
time, and from time to time, to issue shares of Preferred Stock in
one or more series, and for such consideration as the Board may
determine, with such voting powers, full or limited but not to
exceed one vote per share, or without voting powers, and with such
designations, preferences and relative, participating optional or
other special rights, and qualifications, limitation or
restrictions thereof, as shall be stated in the resolution or
resolutions providing for the issue thereof, and as are not stated
in this Certificate of Incorporation, or any amendment thereto.
All shares of any one series shall be of equal rank and identical
in all respects.
2. No dividend shall be paid or declared on any particular
series of Preferred Stock unless dividends shall be paid or
declared pro rata on all shares of Preferred Stock at the time
outstanding of each other series which ranks equally as to
dividends with such particular series.
3. Unless and except to the extent otherwise required by law
or provided in the resolution or resolutions of the Board of
Directors creating any series of Preferred Stock pursuant to this
Division I, the holders of the Preferred Stock shall have no voting
power with respect to any matter whatsoever. In no event shall the
Preferred Stock be entitled to more than one vote in respect of
each share of stock. Subject to the protective conditions or
restrictions of any outstanding series of Preferred Stock, any
amendment to this Certificate of Incorporation which shall increase
or decrease the authorized capital stock of any class or classes
may be adopted by the affirmative vote of the holders of a majority
of the outstanding shares of the voting stock of the Corporation.
4. Shares of Preferred Stock redeemed, converted, exchanged,
purchased, retired or surrendered to the Corporation, or which have
been issued and reacquired in any manner, shall, upon compliance
with any applicable provisions of The General Corporation Law of
the State of Delaware, have the status of authorized and unissued
shares of Preferred Stock and may be reissued by the Board of
Directors as part of the series of which they were originally a
part or may be reclassified into and reissued as part of a new
series or as a part of any other series, all subject to the
protective conditions or restrictions of any outstanding series of
Preferred Stock.
DIVISION II
Common Stock and Class B Common Stock
1. Dividends. Subject to the preferential dividend rights,
if any, applicable to shares of the Preferred Stock and subject to
applicable requirements, if any, with respect to the setting aside
of sums for purchase, retirement or sinking funds for the Preferred
Stock, the holders of the Common Stock and the Class B Common Stock
shall be entitled to receive to the extent permitted by law, such
dividends as may be declared from time to time by the Board of
Directors; provided that whenever a cash dividend is paid to the
holders of Class B Common Stock, the Corporation shall also pay to
the holders of the Common Stock a cash dividend per share at least
equal to the cash dividend per share at least equal to the cash
dividend per share paid to the holders of the Class B Common Stock
and further provided that the Corporation may pay cash dividends to
the holders of the Common Stock in excess of cash dividends paid,
or without paying cash dividends, to holders of the Class B Common
Stock.
2. Liquidation. In the event of the voluntary or
involuntary liquidation, dissolution, distribution of assets or
winding up of the Corporation, after distribution in full of the
preferential amounts, if any, to be distributed to the holders of
shares of the Preferred Stock, holders of the Common Stock and the
Class B Common Stock shall be entitled to receive all the remaining
assets of the Corporation of whatever kind available for
distribution to stockholders ratably in proportion to the number of
shares of Common Stock and the Class B Common Stock held by them,
respectively.
3. Voting Rights. Except as may be otherwise required by
law or this Certificate of Incorporation, each holder of the Common
Stock shall have one vote in respect of each share of Common Stock
held by him of record on the books of the Corporation on all
matters voted upon by the stockholders and each holder of the Class
B Common Stock shall have one-tenth (1/10) of one vote in respect
of each share of Class B Common Stock held by him of record on the
books of the Corporation on all matters voted upon by the
stockholders; provided that the holders of the Common Stock and the
Class B Common Stock shall vote together as a single class.
4. Definition. Notwithstanding the provisions of section
11.(a) of Designations, Preferences and Rights of Series B
Cumulative Convertible Preferred Stock, section 12.(a) of
Designations, Preferences and Rights of Series D Cumulative
Convertible Preferred Stock, and section 10.(a) of Designations,
Preferences and Rights of Series E Cumulative Convertible Preferred
Stock, for the purposes of the Corporation's Restated Certificate
of Incorporation, as amended, the term "Common Stock" shall mean
Common Stock as defined in the first paragraph of this Article
FOURTH and shall not include the Class B Common Stock of the
Corporation, provided, however, that for the purposes of the
section titled "Voting", the first five paragraphs of the section
titled "Dividends" and the last paragraph of the Resolutions
Regarding Issuance of a Series of Preferred Stock; sections 9. and
10. of Designations, Preferences and Rights of Series B Cumulative
Convertible Preferred Stock; sections 10. and 11. of Designations,
Preferences and Rights of Series D Cumulative Convertible Preferred
Stock; and section 9. of Designations, Preferences and Rights of
Series E Cumulative Convertible Preferred Stock, the term "Common
Stock" shall mean both the Common Stock as defined in the first
paragraph of this Article FOURTH and the Class B Common Stock of
the Corporation."
DIVISION III
Elimination of Preemptive Rights
No holder of stock of any class of the Corporation shall be
entitled as a matter of right to purchase or subscribe for any part
of any unissued stock of any class, or of any additional stock of
any class of capital stock of the Corporation, or of any bonds,
certificates of indebtedness, debentures, or other securities
convertible into stock of the Corporation, now or hereafter
authorized, but any such stock of other securities convertible into
stock may be issued and disposed of pursuant to resolution by the
Board of Directors to such persons, firms, corporations or
associations and upon such terms and for such consideration (not
less than the par value or stated value thereof) as the Board of
Directors in the exercise of its discretion may determine and as
may be permitted by law without action by the stockholders.
DESIGNATIONS, PREFERENCES AND RIGHTS OF
SERIES B CUMULATIVE CONVERTIBLE PREFERRED STOCK
1. Designation.
4,750,000 shares of Preferred Stock of the Corporation are
hereby constituted as a series of Preferred Stock designated as
"Series B Cumulative Convertible Preferred Stock" (hereinafter
called "Series B Preferred Stock").
2. Voting Rights.
Each holder of Series B Preferred Stock shall have one vote in
respect of each share of stock held by him of record on the books
of the Corporation on all matters voted upon by the stockholders,
in addition to any other voting rights provided by law.
3. Dividends.
(a) Each share of Series B Preferred Stock shall be entitled
to dividends, when and as declared by the Board of Directors, at a
rate of $.90 per share per annum, before any dividends or
distribution in cash or other property (other than dividends
payable in stock ranking junior to the Series B Preferred Stock) on
any class or classes of stock of the Corporation ranking junior to
the Series B Preferred Stock as to dividends or on liquidation
shall be declared or paid or set apart for payment.
(b) Dividends on the Series B Preferred Stock shall be paid
quarterly on the last business day of January, April, July and
October of each year (or on such other date or dates as may be
determined by the Board of Directors) to holders of record on the
respective dates not exceeding sixty days preceding such dividend
payment dates as may be determined by the Board of Directors in
advance of the payment of each particular dividend.
(c) Dividends on the Series B Preferred Stock shall be
cumulative from and after the date of original issuance thereof,
whether or not declared by the Board of Directors. Accruals of
dividends shall not bear interest.
(d) At the option of the Board of Directors, dividends on the
Series B Preferred Stock may be paid in the form of Common Stock or
Series B Preferred Stock of the Corporation, in lieu of cash. In
such event, the Common Stock shall be valued at its average "Market
Price" (as hereinafter defined) for the 30 consecutive "Trading
Days" (as hereinafter defined) commencing on the forty-fifth
Trading Day next preceding the record date established for the
payment of such dividend; and the value of the Series B Preferred
Stock shall be established as of the record date by an independent
appraisal to be obtained by the Board of Directors.
(e) At the option of the Board of Directors, any accumulated
dividends in arrears with respect to the Series B Preferred Stock
may be satisfied by the distribution of Common Stock of Series B
Preferred stock equal in value to the amount of such arrearages.
In such event, the Common Stock shall be valued at its average
Market Price for the 30 consecutive Trading Days commencing on the
forty-fifth Trading Day prior to the date established by the Board
of Directors for the payment of such arrearages; and the value of
the Series B Preferred Stock shall be established as of a date
within 30 days of such payment date by an independent appraisal to
be obtained by the Board of Directors.
4. Liquidation Rights; Certain Rights Upon Consolidation or
Merger.
(a) Upon the dissolution, liquidation or winding up of the
Corporation, whether voluntary or involuntary, the holders of the
shares of the Series B Preferred Stock shall be entitled to receive
out of the assets of the Corporation before any payment of
distribution shall be made on the Common Stock or on any other
class of stock ranking junior to the Preferred Stock upon
liquidation, cash in the amount of $15.00 per share, plus a sum
equal to all dividends on such shares accrued and unpaid thereon to
the date of final distribution, but they shall be entitled to no
further payment. If, upon any liquidation, dissolution or winding
up of the Corporation, the assets of the Corporation, or proceeds
thereof, distribute among the holders of the Series B Preferred
Stock or any other class of Preferred Stock ranking on a parity
with the Series B Preferred Stock shall be insufficient to pay in
full the preferential amount aforesaid, then such assets, or the
proceeds thereof, shall be distributed among such holders ratably
in accordance with the respective amounts which would be payable on
such shares if all amounts payable thereon were paid in full. For
the purposes of this paragraph 4(a), the merger or consolidation of
the Corporation with one or more corporations in which the
Corporation is the corporation surviving such consolidation or
merger shall not be deemed to be a liquidation, dissolution or
winding up, voluntary or involuntary.
(b) Prior to the merger of the Corporation into or the
consolidation of the Corporation with another corporation which the
Corporation is not the survivor, each share of the Series B
Preferred Stock shall be redeemed by the Corporation for cash in
the amount of $15.00 per share, plus a sum equal to all dividends
on such shares accrued and unpaid thereon to the date of such
merger or consolidation, plus 10% of such total amount.
5. Redemption after April 1, 1994 at the Option of the Holder;
Corporation's Option to Issue Common Stock in Such Event.
(a) At any time after April 1, 1994, a holder of Series B
Preferred Stock may request the Corporation, by giving to the
Corporation at least 60 days' prior written notice, to redeem as of
the July 31 or January 31 whichever next follows the date of such
notice part or all of the Series B Preferred Stock held by him, for
cash equal to the greater of (i) $15.00 per share, plus a sum equal
to all dividends on such shares accrued and unpaid thereon to the
redemption date, or (ii) the value of such shares, as of the
applicable June 30 or December 31 date next preceding the date
fixed for redemption, as established by an independent appraisal
obtained by the Board of Directors. The Board of Directors shall
obtain such appraisal following receipt of such notice and the
Corporation shall furnish a copy of such appraisal to each holder
who has requested redemption of shares.
(b) The Corporation, at the option of the Board of Directors,
may limit the number of shares redeemed pursuant to this paragraph
5 in any one year to 10% of the Series B Preferred Stock
outstanding on January 1 of such year. Shares will be redeemed in
the order that the notices specified in paragraph 5(a) are
received, and if shares exceeding such percentage are tendered,
shares redeemed will be selected by lot or in such other manner as
the Board of Directors may determine to be equitable.
(c) In the event a holder elects to cause shares of Series B
Preferred Stock to be redeemed for cash pursuant to this paragraph,
the Corporation, at the option of the Board of Directors, may
satisfy its obligation to pay for such shares by notifying the
holder and thereafter issuing shares of Common Stock in lieu of
cash in the amount of the redemption price specified in paragraph
5(a). In such event, the Common Stock shall be valued at its
average Market Price for the 30 consecutive Trading Days next
preceding the applicable June 30 or December 31 date specified in
paragraph 5(a).
6. Holder's Annual Right of Redemption or Conversion to Common
Stock in Certain Events.
(a) Notwithstanding the holder's rights of redemption
specified in paragraph 5(a), a holder of shares of Series B
Preferred Stock on behalf of the participants or beneficiaries of
a retirement plan (hereinafter "plan participants") shall have the
right annually to cause the Corporation to redeem or convert into
Common Stock certain of the shares of Series B Preferred Stock in
order to permit the payment of benefits to plan participants
pursuant to the provisions of such plan. Such redemptions or
conversions shall be effected in the following manner:
(i) Each year commencing with 1979, the Board of Directors
shall obtain an independent appraisal of the value of the Series
B Preferred Stock as of December 31 of such year. A copy of
such appraisal shall be furnished by the Corporation to each
holder of Series B Preferred Stock.
(ii) For a period of 30 days following receipt of such
appraisal, each holder of Series B Preferred Stock on behalf of
plan participants shall have the right to cause the Corporation
to (a) redeem for cash that number of shares of Series B
Preferred Stock determined by dividing the total dollar amount
of benefits payable in such year under the terms of the plan in
either cash or Corporation stock at the option of the plan
participants by the appraised value per share of the Series B
Preferred Stock as of December 31 of the immediately preceding
year or (b) convert the number of shares of Series B Preferred
Stock so determined into shares of Common Stock at the rate of
one (1) share of Common Stock for five (5 shares of Series B
Preferred Stock. (In the event the outstanding Common Stock of
the corporation is hereafter combined into a smaller number of
shares, then the rate of conversion shall be adjusted
proportionately.)
(iii) The holder of such shares to be redeemed or
converted shall give to the Corporation at least 30 days' prior
written notice of its request for conversion or redemption,
specifying the number of shares to be converted or redeemed, the
requested date of redemption or conversion, and certifying that
the dollar amount represented by such shares (at the above
specified appraisal value) is (or will be within such notice
period) distributable to plan participants pursuant to the
provisions of such plan.
(iv) The Corporation shall thereupon redeem such shares for
cash or issue Common Stock in exchange therefore in accordance
with the provisions hereof.
(b) In the event a holder elects to cause shares of Series B
Preferred Stock to be redeemed for cash pursuant to this paragraph,
the Corporation, at the option of the Board of Directors, may
satisfy its obligation to pay for the shares so to be redeemed by
converting such shares into shares of Common Stock valued at the
average Market Price of the Common Stock for the 30 consecutive
Trading Days next preceding the date of the notice specified in
paragraph 6(a)(111).
7. Certain Provisions Applicable to Redemptions of Shares
From and after the applicable date specified for redemption of
shares of Series B Preferred Stock in accordance with these
provisions, unless the Corporation shall default in paying or
providing the funds necessary for the payment of the redemptions
price of the shares so specified for redemption, the right to
receive dividends on all shares of Series B Preferred Stock so
specified for redemption shall cease to accrue, and all rights of
the holders of the shares of Series B Preferred Stock specified for
redemption shall forthwith, after the redemption date, cease and
terminate, excepting only the right of such holders to receive the
specified redemption price for such shares but without interest,
and such shares shall no longer be deemed outstanding.
8. Certain Provisions Applicable to Conversions of Shares
(a) Shares of the Series B Preferred Stock to be converted in
accordance with these provisions shall be convertible at such
office or offices as the Board of Directors of the Corporation may
designate. (For the purpose of this paragraph, the issuance of
Common Stock in lieu of cash upon a redemption of Series B
Preferred Stock shall be deemed to be a conversion unless the
context otherwise requires.)
(b) In order to effect the conversion of shares of the Series
B Preferred Stock into Common Stock in accordance with these
provisions, the holder thereof shall surrender at any office
hereinabove mentioned the certificate of certificates therefore,
duly endorsed to the Corporation or in blank, and give written
notice to the Corporation at said office in accordance with the
applicable provisions hereof, as to the conversion to be effected
and the name or names in which the certificate or certificates for
shares of Common Stock are to be issued. No payment or adjustment
shall be made upon any conversion on account of any dividends
accrued on the shares of the Series B Preferred Stock surrendered
for conversion or on account of any dividends on the Common Stock
issued upon such conversion. Shares of the Series B Preferred
Stock shall be deemed to have been converted immediately prior to
the close of business on the day specified for conversion and the
surrender of such shares for conversion in accordance with the
foregoing provisions, and 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 Common Stock
at such time. As promptly as practicable after the receipt of such
notice and the surrender of such shares as aforesaid, the
Corporation shall issue and deliver at said office a certificate or
certificates for the number of full shares of Common Stock issuable
upon such conversion, together with a cash payment in lieu of any
fraction of any share, as hereinafter provided, to the person or
persons entitled to receive the same. In case shares of the
Series B Preferred Stock are called for redemption, the right to
convert such shares shall cease and terminate at the close of
business on the applicable redemption date, unless default shall be
made in payment of the redemption price.
(c) No fractional shares of Common Stock shall be issued upon
conversion of shares of the Series B Preferred Stock but, in lieu
of any fraction of a share of Common Stock which would otherwise be
issuable in respect of the aggregate number of shares of the Series
B Preferred Stock surrendered for conversion at one time by the
same holder, the Corporation shall pay in cash as an adjustment of
such fraction an amount equal to the same fraction of the Market
Price of the Common Stock, on the date on which such shares of the
Series B Preferred Stock were duly surrendered for conversion, or,
if such date is not a Trading Day, on the next preceding date which
was a Trading Day.
(d) The Corporation shall at all times reserve and keep
available out of its authorized but unissued shares the full number
of shares of Common Stock into which all shares of the Series B
Preferred Stock from time to time outstanding are convertible.
(e) The Corporation will pay any and all issue and other
taxes that may be payable in respect of any issue or delivery of
shares on conversion of shares of the Series B Preferred Stock
pursuant hereto. The Corporation shall not, however, be required
to pay any tax which may be payable in respect of any transfer
involved in such issue and delivery of shares in a name other than
that in which the shares so converted were registered, and no such
issue or delivery shall be made unless and until the person
requesting such issue 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.
9. Distribution or Reclassification of Series B Preferred Stock
In the Event of Distribution or Reclassification of Common
Stock
In the event the Corporation shall at any time after the
issuance of Series B Preferred Stock pay a dividend or make a
distribution in shares of Common Stock or subdivide or reclassify
its outstanding shares of Common Stock into a greater number of
shares of Common Stock, then a proportionate dividend,
distribution, subdivision or reclassification of the outstanding
Series B Preferred Stock shall also be effected, as of the
effective date of the applicable distribution or adjustment with
respect to the Common Stock. In such event, the redemption price
of $15.00 per share specified in paragraphs 4(a), 4(b) and 5(a) and
the annual dividend rate of $.90 per share specified in paragraph
3(a) hereof shall be reduced proportionately as to all shares of
Series B Preferred Stock outstanding or thereafter issued.
10. Relative Rights of Preferred Stock.
(a) So long as any of the Series B Preferred Stock is
outstanding the Corporation will not:
(i) Declare, or pay, or set apart for payment, any
dividends (other than dividends payable in stock ranking junior
to the Series B Preferred Stock) or make any distribution on any
other class or classes of stock of the Corporation ranking
junior to the Series B Preferred Stock either as to dividends or
upon liquidation and will not redeem, purchase or otherwise
acquire, any shares of any such junior class if at the time of
making such declaration, payment, distribution, redemption,
purchase or acquisition the Corporation shall be in default with
respect to any dividend payable on, or any obligation to retire
shares of, Series B Preferred Stock, provided that,
notwithstanding the foregoing, the Corporation may at any time
redeem, purchase or otherwise acquire shares of stock of any
such junior class in exchange for, or out of the net cash
proceeds from the sale or, other shares of stock of any junior
class;
(ii) Without the affirmative vote or consent of the holders
of at least 50% of all the Series B Preferred Stock at the time
outstanding, given in person or by proxy, either in writing or
by resolution adopted at an annual or special meeting called for
the purpose, amend, alter or repeal any of these resolutions so
as adversely to affect the new preferences, rights, or powers of
the Series B Preferred Stock; provided, that the creation of any
class of stock ranking prior to the Series B Preferred Stock
either as to dividends or upon liquidation or any increase in
the authorized number of shares of any such class of stock shall
not be deemed to adversely affect the preferences, rights or
powers of the Preferred Stock within the meaning of this
subparagraph (ii);
(iii) Without the affirmative vote or consent of the
holders of at least 50% of all the Series B Preferred Stock at
the time outstanding, given in person or by proxy, either in
writing or by resolution adopted at an annual or special meeting
called for the purpose, create any class or classes or stock
ranking prior to the Series B Preferred Stock either as to
dividends or upon liquidation, or increase the authorized number
of shares of any such class of stock.
11. Certain Definitions.
(a) For the purposes of these provisions the term "Common
Stock" means the Common Stock of the Corporation, $1 par value, as
the same exits as of the original date of issue of the Series B
Preferred Stock or as such stock may be reconstituted from time to
time.
(b) As used in these provisions, the term "Market Price" on
any day shall mean the reported last sales 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,
in each case on the New York Stock Exchange, or, if the Common
Stock is not listed or admitted to trading on such Exchange, on the
principal national securities exchange on which the Common Stock is
listed or admitted to trading, or, if not listed or admitted to
trading on any national securities exchange, the average of the
closing bid and asked prices in the over-the-counter market as
reported by the National Quotation Bureau or similar reporting
service; and the term "Trading Day" shall mean a date on which the
New York Stock Exchange (or any successor to such Exchange) is open
for the transaction of business.
(c) As used in these provisions, the term "retirement plan"
shall mean a retirement plan adopted by the Corporation or any of
its subsidiaries, including without limitation the Old Republic
International Corporation Employees Savings and Stock Ownership
Plan and similar plans.
DESIGNATIONS, PREFERENCES AND RIGHTS OF
SERIES D CUMULATIVE CONVERTIBLE PREFERRED STOCK
1. Designation.
25,000,000 shares of Preferred Stock of the Corporation are
hereby constituted as a series of Preferred Stock designated as
"Series D Cumulative Convertible Preferred Stock" (hereinafter
called "Series D Preferred Stock").
2. Voting Rights.
Each holder of Series D Preferred Stock shall have one vote in
respect of each share of stock held by him of record on the books
of the Corporation on all matters voted upon by the stockholders,
in addition to any other voting rights provided by law.
3. Dividends.
(a) Each share of Series D Preferred Stock shall be entitled
to dividends, when and as declared by the Board of Directors, at a
rate of $.50 per hare per annum, before any dividends or
distribution in cash or other property (other than dividends
payable in stock ranking junior to the Series D Preferred Stock) on
any class or classes of stock of the Corporation ranking junior to
the Series D Preferred Stock as to dividends or on liquidation hall
be declared or paid or set apart for payment.
(b) Dividends on the Series D Preferred Stock shall be paid
semi-annually on January 15 and July 15 of each year (or on such
other date or dates as may be determined by the Board of Directors)
to holders of record on the respective dates not exceeding sixty
days preceding such dividend payment dates as may be determined by
the Board of Directors in advance of the payment of each particular
dividend.
(c) Dividends on the Series D Preferred Stock shall be
cumulative from and after the date of original issuance thereof,
whether or not declared by the Board of Directors. Accruals of
dividends shall not bear interest.
4. Conversion Rights at Any Time.
Shares of the Series D Preferred Stock shall be convertible at
any time at the option of the holder of such shares into shares of
Common Stock at an exchange ratio of five (5) shares of Series D
Preferred Stock for one (1) share of Common Stock.
5. Conversion Right in the Event of Certain Business Combinations
or Acquisitions of Securities.
(a) In the event of a "Business Combination" (as hereinafter
defined), or in the event an Acquiring Entity obtains 20% or more
of any one class of the Corporation's voting securities, and unless
the conditions of subparagraph (c) hereof are complied with, shares
of Series D Preferred Stock shall become immediately convertible at
any time prior to or after the effectiveness of such Business
Combination or acquisition of the 20% or larger interest, at the
sole option of the holder of such shares, into shares of Common
Stock at a maximum exchange ratio of five (5) shares of Series D
Preferred stock for one (1) share of Common Stock, subject to a
proportionate reduction (but not lower than a minimum exchange
ratio of 2.5 to 1) to the extent that the "Common Stock Value" (as
hereinafter determined) as of the date on which the shares of
Series D Preferred Stock are surrendered for conversion exceeds
$25.00 per share of Common Stock. (For example, if the Common
Stock Value as of such date is $50.00 or higher, the exchange ratio
will be 2.5 to 1; or, alternatively, if the Common Stock Value as
of such date is $35.00, the exchange ratio will be 4.0 to 1). For
this purpose, "Common Stock Value" shall equal the greater of: (A)
the highest per share price (including brokerage commissions and/or
soliciting dealers' fees) paid by the "Acquiring Entity" (as
hereinafter defined) in acquiring any of its holdings of the
Corporation's Common Stock; or (B) an amount bearing a percentage
relationship to the market price of the Corporation's Common Stock
immediately prior to the public announcement of such Business
Combination, equal to the highest percentage relationship that any
per share price (including brokerage commissions and/or soliciting
dealer's fees) theretofore paid by the Acquiring Entity for any of
its holdings of the Corporation's Common Stock bore to the market
price of such Common Stock immediately prior to the transaction
resulting in the acquisition of such Common Stock; or (C) the book
value of the Corporation's Common Stock as of the end of the most
recent calendar quarter determined in accordance with generally
accepted accounting principles.
(b) For purposes of this paragraph, a Business Combination
shall include (i) a merger or consolidation of the Corporation with
or into any Other Corporation (as hereinafter defined), or (ii) any
sale, lease, exchange, mortgage, pledge or other disposition of
all, or substantially all, or any Substantial Part (as hereinafter
defined) of the assets of the Corporation or any Subsidiary (as
hereinafter defined) to any Other Corporation, or (iii) the
issuance or transfer by the Corporation of any Substantial Amount
(as hereinafter defined) of securities of the Corporation in
exchange for the securities or assets of any Other Corporation if,
in any such case, as of the record date for the determination of
stockholders entitled to notice thereof and to vote thereon or
consent thereto such Other Corporation is an Acquiring Entity.
(c) The provisions of subparagraph (a) of this paragraph
shall not be applicable to any transaction described therein if
such transaction is approved by majority resolution of the full
Board of Directors of the Corporation, provided that two-thirds of
the members of the Board of Directors voting for the approval of
such transaction were duly elected and acting members of the Board
of Directors prior to the time such Other Corporation shall have
become an Acquiring Entity.
(d) The Board of Directors shall have the power and duty to
determine for the purposes of this paragraph, on the basis of
information known to such Board, if and when any
Other Corporation is or has become an Acquiring Entity, and any
such determination shall be conclusive and binding for all purposes
of this paragraph.
(e) As used in this paragraph, the following terms have the
meanings as set forth below:
"Acquiring Entity" means any Other Corporation which is the
Beneficial Owner of more than 10% of the outstanding shares of
stock of the Corporation entitled to vote in elections of
directors, considered for the purposes of this paragraph a one
class.
"Affiliate" or "Associate" of a person have the same meaning
as is assigned to such terms under Rule 12b-2 of the General
Rules and Regulations (the "Regulations") under the Securities
Exchange Act of 1934 as in effect on June 1, 1982.
"Beneficial Owner" of stock means a person, or an Affiliate or
Associate of such person, who is a "beneficial owner" of
stock, as such term is defined under Rule 13d-3 of the
Regulations as in effect on June 1, 1982.
"Business Combination" means any transaction described in part
(b) of this paragraph.
"Other Corporation" means any person, firm, corporation or
other entity, or group, other than a subsidiary of the
Corporation.
"Substantial Part" means any assets having a then fair market
value, in the aggregate, of more than $5,000,000.
"Subsidiary" means any corporation in which the Corporation
owns, directly or indirectly, more than 50% of the voting
securities.
"Substantial Amount" means any securities of the Corporation
having a then fair market value of more than $5,000,000.
6. Certain Conversion Rights Upon Other Consolidation or Merger;
Liquidation Rights.
(a) In the event of a "Business Combination" (as defined in
paragraphs 5(b)) not covered by paragraph 5 by reason of the
provisions of paragraph 5(c), shares of Series D Preferred Stock
shall be immediately convertible at any time prior to the
effectiveness of such Business Combination at an exchange ratio of
five (5) shares of Series D Preferred Stock for one (1) share of
Common Stock.
(b) Upon the dissolution, liquidation or winding up of the
Corporation, whether voluntary or involuntary, the holders of the
shares of the Series D Preferred Stock which have not been
converted into Common Stock shall be entitled to receive out of the
assets of the Corporation before any payment or distribution shall
be made on the Common Stock or on any other class of stock ranking
junior to the Series D Preferred Stock upon liquidation, cash in
the amount of $5.00 per share, plus a sum equal to all dividends on
such shares accrued and unpaid thereon to the date of final
distribution, but they shall be entitled to no further payment.
If, upon any liquidation, dissolution or winding up of the
Corporation, the assets of the Corporation, or proceeds thereof,
distributable among the holders of the Series D Preferred Stock or
any other class of Preferred Stock ranking on a parity with the
Series D Preferred Stock shall be insufficient to pay in full the
preferential amount aforesaid, then such assets, or the proceeds
thereof, shall be distributed among such holders ratably in
accordance with the respective amounts which would be payable on
such shares if all amounts payable thereon were paid in full. For
the purposes of this paragraph 6(b), the merger or consolidation of
the Corporation with one or more corporations in which the
Corporation is the corporation surviving such consolidation or
merger shall not be deemed to be a liquidation, dissolution or
winding up, voluntary or involuntary.
(c) Prior to the merger of the Corporation into or the
consolidation of the Corporation with another corporation in which
the Corporation is not the survivor, each share of the Series D
Preferred Stock which has not been converted into Common Stock
shall be redeemed by the Corporation for cash in the amount of
$5.00 per share, plus a sum equal to all dividends on such shares
accrued and unpaid thereon to the date of such merger or
consolidation.
7. Redemption after July 1, 1987 at the Option of the
Corporation.
At any time after July 1, 1987, the Corporation, at its sole
option on at least 30 days' prior written notice to holders, may
redeem all, or any part (pro rata as to the holders), of the Series
D Preferred Stock then outstanding, for cash equal to $5.00 per
share, plus a sum equal to all dividends on such shares accrued and
unpaid thereon to the redemption date. During such 30 day notice
period, holders of the Series D Preferred Stock may exercise their
rights of conversion specified in paragraph 4 hereof, which
conversion right shall expire as of the close of business on the
thirtieth day of such notice period.
8. Certain Provisions Applicable to Redemptions of Shares.
From and after the applicable date specified for redemption of
shares of Series D Preferred Stock in accordance with these
provisions, unless the Corporation shall default in paying or
providing the funds necessary for the payment of the redemption
price of the shares so specified for redemption, the right to
receive dividends on all shares of Series D Preferred Stock so
specified for redemption shall cease to accrue, and all rights of
the holders of the shares of Series D Preferred Stock specified for
redemption shall forthwith, after the redemption date, cease and
terminate, excepting only the right of such holders to receive the
specified redemption price for such shares but without interest,
and such shares shall no longer be deemed outstanding.
9. Certain Provisions Applicable to Conversions of Shares.
(a) Shares of the Series D Preferred Stock to be converted in
accordance with these provisions shall be convertible at such
office or offices as the Board of Directors of the Corporation may
designate. (For the purpose of this paragraph, the issuance of
Common Stock in lieu of cash upon a redemption of Series D
Preferred Stock shall be deemed to be a conversion unless the
context otherwise requires.)
(b) In order to effect the conversion of shares of the Series
D Preferred Stock into Common Stock in accordance with these
provisions, the holder thereof shall surrender at any office
hereinabove mentioned the certificate or certificates therefor,
duly endorsed to the Corporation or in blank, and give written
notice to the Corporation at said office in accordance with the
applicable provisions hereof, as to the conversion to be effected
and the name or names in which the certificate or certificates for
shares of Common Stock are to be issued. No payment or adjustment
shall be made upon any conversion on account of any dividends
accrued on the shares of the Series D Preferred Stock surrendered
for conversion or on account of any dividends on the Common Stock
issued upon such conversion. Shares of the Series D Preferred
Stock shall be deemed to have been converted immediately prior to
the close of business on the day specified for conversion and the
surrender of such shares for conversion in accordance with the
foregoing provisions, and 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 Common Stock
at such time. As promptly as practicable after the receipt of such
notice and the surrender of such shares as aforesaid, the
Corporation shall issue and deliver at said office a certificate or
certificates for the number of full shares of Common Stock issuable
upon such conversion, together with a cash payment in lieu of any
fraction of any share, as hereinafter provided, to the person or
persons entitled to receive the same. In case shares of the Series
D Preferred Stock are called for redemption, the right to convert
such shares shall cease and terminate at the close of business on
the applicable redemption date, unless default shall be made in
payment of the redemption price.
(c) No fractional shares of Common Stock shall be issued upon
conversion of shares of the Series D Preferred Stock but, in lieu
of any fraction of a share of Common Stock which would otherwise be
issuable in respect of the aggregate number of shares of the Series
D Preferred Stock surrendered for conversion at one time by the
same holder, the Corporation shall pay in cash as an adjustment of
such fraction an amount equal to the same fraction of the Market
Price of the Common Stock, on the date on which such shares of the
Series D Preferred Stock were duly surrendered for conversion, or,
if such date is not a Trading Day, on the next preceding date which
was a Trading Day.
(d) The Corporation shall at all times reserve and keep
available out of its authorized but unissued shares the full number
of shares of Common Stock into which all shares of the Series D
Preferred Stock from time to time outstanding are convertible.
(e) The Corporation will pay any and all issue and other
taxes that may be payable in respect of any issue or delivery of
shares on conversion of shares of the Series D Preferred Stock
pursuant hereto. The Corporation shall not, however, be required
to pay any tax which may be payable in respect of any transfer
involved in such issue and delivery of shares in a name other than
that in which the shares so converted were registered, and no such
issue or delivery shall be made unless and until the person
requesting such issue 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.
10. Distribution or Reclassification of Series D Preferred Stock
In the Event of Distribution or Reclassification of Common
Stock; Adjustment of Exchange Ratio.
(a) In the event the Corporation shall at any time after the
issuance of Series D Preferred Stock pay a dividend or make a
distribution in shares of Common Stock or subdivide or reclassify
its outstanding shares of Common Stock into a greater number of
shares of Common Stock, then a proportionate dividend,
distribution, subdivision or reclassification of the outstanding
Series D Preferred Stock shall also be effected, as of the
effective date of the applicable distribution or adjustment with
respect to the Common Stock. In such event, the redemption price
of $5.00 per share and the annual dividend rate of $.50 per share
specified in these provisions shall be reduced proportionately as
to all shares of Series D Preferred Stock outstanding or thereafter
issued.
(b) In the event the outstanding Common Stock of the
Corporation is hereafter combined into a smaller number of shares,
then the rate of conversion only, specified herein, shall be
adjusted proportionately.
11. Relative Rights of Preferred Stock.
(a) So long as any of the Series D Preferred Stock is
outstanding the Corporation will not:
(i) Declare, or pay, or set apart for payment, any
dividends (other than dividends payable in stock ranking junior
to the Series D Preferred Stock) or make any distribution on any
other class or classes of stock of the Corporation ranking
junior to the Series D Preferred Stock either as to dividends or
upon liquidation and will not redeem, purchase or otherwise
acquire, any shares of any such junior class if at the time of
making such declaration, payment, distribution, redemption,
purchase or acquisition the Corporation shall be in default with
respect to any dividend payable on, or any obligation to retire
shares of, Series D Preferred Stock, provided that,
notwithstanding the foregoing, the Corporation may at any time
redeem, purchase or otherwise acquire shares of stock of any
such junior class in exchange for, or out of the net cash
proceeds from the sale of, other shares of stock of any junior
class;
(ii) Without the affirmative vote or consent of the holders
of at least 50% of all the Series D Preferred Stock at the time
outstanding, given in person or by proxy, either in writing or
by resolution adopted at an annual or special meeting called for
the purpose, amend, alter or repeal any of these resolutions so
as adversely to affect the preferences, rights, or powers of the
Series D Preferred Stock; provided, that the creation of any
class of stock ranking prior to the Series D Preferred Stock
either as to dividends or upon liquidation or any increase in
the authorized number of shares of any such class of stock shall
not be deemed to adversely affect the preferences, rights or
powers of the Preferred Stock within the meaning of this
subparagraph (ii);
(iii) Without the affirmative vote or consent of the
holders of at least 50% of all the Series D Preferred Stock at
the time outstanding, given in person or by proxy, either in
writing or by resolution adopted at an annual or special meeting
called for the purpose, create any class or classes of stock
ranking prior to the Series D Preferred Stock either as to
dividends or upon liquidation, or increase the authorized number
of shares of any such class of stock.
(b) The Series B Cumulative Convertible Preferred Stock of
the Corporation heretofore authorized by the Board of Directors of
the Corporation shall rank on a parity with, and the Common Stock
of the Corporation shall rank junior to, the Series D Preferred
Stock as to dividends and upon liquidation.
12. Certain Definitions.
(a) For the purposes of these provisions, the term "Common
Stock" means the Common Stock of the Corporation, $1 par value, as
the same exists as of the original date of issue of the Series D
Preferred Stock or as such stock may be reconstituted from time to
time.
(b) As used in these provisions, the term "Market Price" on
any day shall mean the reported last sales 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,
in each case on the New York Stock Exchange, or, if the Common
Stock is not listed or admitted to trading on such Exchange, on the
principal national securities exchange on which the Common Stock is
listed or admitted to trading, or, if not listed or admitted to
trading on any national securities exchange, the average of the
closing bid and asked prices in the over-the-counter market as
reported by the National Quotation Bureau or similar reporting
service; and the term "Trading Day" shall mean a date on which the
New York Stock Exchange (or any successor to such Exchange) is open
for the transaction of business.
DESIGNATIONS, PREFERENCES AND RIGHTS
OF SERIES E CUMULATIVE CONVERTIBLE PREFERRED STOCK
1. Designations.
875,000 shares of Preferred Stock of the Corporation, without
par value, are hereby constituted as a series of Preferred Stock
designated as "Series E Cumulative Convertible Preferred Stock"
(hereinafter called "Series E Preferred Stock").
2. Voting Rights.
In addition to the special voting rights provided to the
holders of the Series E Preferred Stock as or part of a separate
series or class pursuant to paragraph 7 hereof, any other provision
of the Certificate of Incorporation of the Corporation, and any
other voting rights provided by law, each holder of Series E
Preferred Stock shall be entitled to one vote in respect of each
share of stock held by him of record on the books of the
Corporation on all matters voted upon by the stockholders, such
votes to be counted together with those for any other shares of
capital stock having the right to vote on all such matters and not
separately as a class or group.
3. Dividends.
(a) The holders of shares of Series E Preferred Stock shall
be entitled to receive cumulative cash dividends, when and as
declared by the Board of Directors out of funds legally available
therefor, at a rate of $1.00 per share per annum and no more,
before any dividend or distribution in cash or other property
(other than dividends payable in stock ranking junior to the Series
E Preferred Stock as to dividends and upon liquidation) on any
class or series of stock of the Corporation ranking junior to the
Series E Preferred Stock as to dividends or on liquidation shall be
declared or paid or set apart for payment.
(b) Dividends on the Series E Preferred Stock shall be paid
on the dividend payment date established by the Board of Directors
for the quarterly payment of dividends on the Common Stock (or
otherwise on the first business day of March, June, September and
December of each year) to holders of record on the respective
record dates not exceeding sixty days preceding such dividend
payment dates as may be determined by the Board of Directors in
advance of the payment of each particular dividend.
(c) Dividends on the Series E Preferred Stock shall be
cumulative and accrue from and after the date of original issuance
thereof, whether or not declared by the Board of Directors.
Accruals of dividends shall not bear interest.
(d) No dividend may be declared on any other class or series
of stock ranking on a parity with the Series E Preferred Stock as
to dividends in respect of any quarterly dividend unless there
shall also be or have been declared on the Series E Preferred Stock
like dividends for all quarterly periods coinciding with or ending
before such quarterly period, ratably in proportion to the
respective annual dividend rates per annum fixed therefor.
4. Liquidation Rights.
In the event of any dissolution, liquidation or winding up of
the Corporation, whether voluntary or involuntary, the holders of
outstanding shares of the Series E Preferred Stock shall be
entitled to receive, before any payment or distribution of assets
of the Corporation or proceeds thereof (whether capital or surplus)
shall be made to or set apart for the holders of the Common Stock
or any other class or series of stock ranking junior to the Series
E Preferred Stock upon liquidation, cash in the amount of $33.50
per share, plus a sum equal to all dividends on such shares accrued
and unpaid thereon to the date of final distribution, but they
shall be entitled to no further payment. If, upon any liquidation,
dissolution or winding up of the Corporation, the assets of the
Corporation, or proceeds thereof, distributable among the holders
of the Series E Preferred Stock or any other class or series
ranking on a parity with the Series E Preferred Stock as to
payments upon liquidation, dissolution or winding up shall be
insufficient to pay in full the preferential amount aforesaid, then
such assets, or the proceeds thereof, shall be distributed among
such holders ratably in accordance with the respective amounts
which would be payable on such shares if all amounts payable
thereon were paid in full. For the purposes of this paragraph 4,
the voluntary sale, lease, exchange or transfer (for cash, shares
of stock, securities or other consideration) of all or
substantially all of the property or assets of the Corporation to,
or a merger or consolidation of the Corporation with, one or more
corporations shall not be deemed to be a liquidation, dissolution
or winding up, voluntary or involuntary.
5. Redemption at Option of the Corporation.
The Corporation shall have the right to redeem shares of
Series E Preferred Stock pursuant to the following provisions:
(a) The Corporation shall not have any right to redeem shares
of Series E Preferred Stock prior to the 10th anniversary of the
date of the initial issue of shares of Series E Preferred Stock.
Thereafter, the Corporation shall have the right, at its sole
option and election, to redeem some or all of the shares of Series
E Preferred Stock, at any time and from time to time, at a
redemption price of $33.50 per share, plus an amount equal to all
accrued and unpaid dividends and distributions thereon (such sum
being hereinafter referred to as the "Redemption Price"), whether
or not declared, to the date fixed by the Board for redemption (the
"redemption date").
(b) If less than all of the shares of Series E Preferred
Stock at the time outstanding are to be redeemed, the shares so to
be redeemed shall be selected by lot, pro rata (as nearly as may
be) or in such other manner as the Board of Directors may determine
in its sole discretion to be fair and proper, except that in any
redemption of fewer than all the outstanding shares of Series E
Preferred Stock, the Corporation may redeem all shares held by
holders of less than 100 shares of Series E Preferred Stock.
Notwithstanding the foregoing provisions, the Corporation shall not
redeem less than all of the Series E Preferred Stock at any time
outstanding until all dividends accrued and in arrears upon all
Series E Preferred Stock then outstanding shall have been paid for
all past dividend periods, and until full dividends for the then
current dividend period on all Series E Preferred Stock then
outstanding, other than the shares to be redeemed, shall have been
paid or declared and the full amount thereof set apart for the
payment.
(c) Notice of any redemption of shares of Series E Preferred
Stock pursuant to this paragraph 5 shall be mailed at least 30, but
not more than 60 days prior to the redemption date to each holder
of shares of Series E Preferred Stock to be redeemed, at such
holder's address as it appears on the transfer agent's books. In
order to facilitate the redemption of shares of Series E Preferred
Stock, the Board of Directors may fix a record date for the
determination of holders of shares of Series E Preferred Stock to
be redeemed not more than 60 days prior to the date fixed for such
redemption.
(d) Any notice which is mailed as herein provided shall be
conclusively presumed to have been duly given, whether or not the
stockholder receives such notice; and failure to give such notice
by mail, or any defect in such notice, to the holders of any shares
designated for redemption shall not affect the validity of the
proceedings for the redemption of any other shares of Series E
Preferred Stock. On or after the date fixed for redemptions stated
in such notice, each holder of the shares called for redemption
shall surrender the certificate or certificates evidencing such
shares to the Corporation at the place designated in such notice
and shall thereupon be entitled to receive payment of the
Redemption Price. If less than all the shares represented by any
such surrendered certificate are redeemed, a new certificate shall
be issued representing the unredeemed shares.
(e) The Corporation may, on or prior to the date fixed for
redemption of any shares, but not earlier than 45 days prior to the
date fixed for redemption, deposit with its transfer agent or other
redemption agent selected by the Board of Directors of the
Corporation, a trust fund, a sum sufficient to redeem the shares
called for redemption, with irrevocable instructions and authority
to such transfer agent or other redemption agent to give or
complete the notice of redemption thereof and to pay to the
respective holders of such shares, as evidenced by a list of such
holders certified by an officer of the Corporation, the Redemption
Price upon surrender of their respective share certificates. Such
deposit shall be deemed to constitute full payment of such shares
to their holders; and from and after the date of such deposit,
notwithstanding that any certificates for such shares shall not
have been surrendered for cancellation, the shares represented
thereby shall no longer be deemed outstanding, the rights to
receive dividends and distributions shall cease to accrue from and
after the redemption date, and all rights of the holders of the
shares of Series E Preferred Stock called for redemption, as
stockholders of the Corporation with respect to such shares, shall
cease and terminate, except the right to receive the Redemption
Price, without interest, upon the surrender of their respective
certificates, and except the right to convert their shares into
Common Stock as provided in paragraph 6 hereof, until the close of
business on the third business day preceding the redemption date.
In case the holders of any shares shall not, within one year after
such deposit, claim the amount deposited for redemption thereof,
such transfer agent or other redemption agent shall, upon demand,
pay over to the Corporation the balance of such amount so
deposited. Thereupon, such transfer agent or other redemption
agent shall be relieved of all responsibility to the holders
thereof and the sole right of such holders shall be as general
creditors of the Corporation. To the extent that shares of Series
E Preferred Stock called for redemption are converted into Common
Stock prior to the date fixed for redemption, the amount deposited
by the Corporation to redeem such shares shall immediately be
returned to the Corporation. Any interest accrued on any funds so
deposited shall belong to the Corporation, and shall be paid to it
from time to time on demand.
6. Conversion.
Each share of Series E Preferred Stock (other than those
shares which have been surrendered for redemption pursuant to
paragraph 5) may be converted at any time (until the third business
day preceding the redemption date as provided in subparagraph (h)
of this paragraph 6), at the option of the holder thereof, into
shares of Common Stock of the Corporation, on the terms and
conditions set forth in this paragraph 6:
(a) Subject to the provisions for adjustment hereinafter set
forth, each share of Series E Preferred Stock shall be convertible
at the option of the holder thereof, in the manner hereinafter set
forth, into one fully paid and nonassessable share of Common Stock
of the Corporation.
(b) The number of shares of Common Stock into which each
share of Series E Preferred Stock is convertible shall be subject
to adjustment from time to time as follows:
(i) In case the Corporation shall at any time (A) pay a
dividend or make a distribution on its Common Stock in Common
Stock, (B) subdivide its outstanding shares of Common Stock into
a larger number of shares, (C) combine its outstanding shares of
Common Stock into a smaller number of larger shares, (D) issue
by reclassification of its Common Stock (whether by merger or
consolidation or otherwise) any shares of stock or other
securities of the Corporation, or (E) take any action with the
same effect as any of the foregoing, then the number of shares
of Common Stock which the holder of each outstanding share of
Series E Preferred Stock shall thereafter be entitled to receive
upon conversion of such share of Series E Preferred Stock
(subject to further adjustments pursuant to paragraphs 6(b)(ii)
and 6(b)(iii) shall be adjusted so as to consist of the number
of shares of the Corporation (or of the corporation surviving or
resulting from any merger or consolidation) which at the date of
such conversion he would have owned and been entitled to receive
had such share of Series E Preferred Stock been converted
immediately prior to the happening of the first of such events
to occur after the initial issue of shares of Series E Preferred
Stock and prior to such conversion. An adjustment made pursuant
to this paragraph 6(b)(i) shall become effective immediately
after the record date in the case of a dividend or distribution,
and immediately after the effective date in the case of a
subdivision, combination, reclassification, or an event with the
same effect as the foregoing;
(ii) In case the Corporation shall issue rights or warrants
to all holders of its Common Stock entitling them to subscribe
for or purchase shares of Common Stock at a price per share less
than the current Market Price (as defined herein) per share of
the Common Stock on the record date for determination of
stockholders entitled to receive such rights or warrants, other
than pursuant to a dividend reinvestment plan, then in each such
case the number of shares of Common Stock into which each share
of Series E Preferred Stock shall thereafter be convertible
shall be determined by multiplying the number of shares of
Common Stock into which such share of Series E Preferred Stock
was convertible immediately prior to such record date by a
fraction, of which the numerator shall be the number of shares
of Common Stock outstanding at such record date plus the number
of additional shares of Common Stock offered for subscription or
purchase, and of which the denominator shall be the number of
shares of Common Stock outstanding at such record date plus the
number of shares which the aggregate offering price of the total
number of shares so offered would purchase at such current
Market Price. For the purposes of this paragraph 6(b)(ii), the
issuance of rights or warrants to subscribe for or purchase
stock or securities convertible into shares of Common Stock
shall be deemed to be the issuance of rights or warrants to
purchase the shares of Common Stock into which such stock or
securities are convertible at an aggregate offering price equal
to the aggregate offering price of such stock or securities plus
the minimum aggregate amount (if any) payable upon conversion of
such stock or securities into Common Stock. An adjustment made
pursuant to this paragraph 6(b)(ii) shall become effective
immediately after the record date for the determination of
stockholders entitled to receive such rights or warrants; and
(iii) In case the Corporation shall distribute to all
holders of its Common Stock its securities (excluding Common
Stock), evidences of its indebtedness or assets (excluding cash
dividends and distributions out of current or retained earnings)
or rights to subscribe (excluding those referred to in paragraph
6(b)(ii) hereof), then in each such case the number of shares of
Common Stock into which each share of Series E Preferred Stock
shall thereafter be convertible shall be determined by
multiplying the number of shares of Common Stock into which such
share of Series E Preferred Stock was convertible immediately
prior to the record date for determination of stockholders
entitled to such distribution by a fraction, of which the
numerator shall be the current Market Price per share of the
Common Stock on the record date for determination of
stockholders entitled to receive such distribution, and of which
the denominator shall be such current Market Price per share of
the Common Stock less the fair value (as determined by the Board
of Directors of the Corporation, whose determination shall be
conclusive) of the portion of the securities, evidences of
indebtedness or assets so distributed or of such subscription
rights applicable to one share of the Common Stock. An
adjustment made pursuant to this paragraph 6(b)(iii) shall
become effective immediately after the record date for the
determination of stockholders entitled to receive such
distribution.
Similar adjustments shall be made if any of the events
described above shall thereafter occur or reoccur.
(c) If any adjustment in the number of shares of Common Stock
into which each share of Series E Preferred Stock may be converted
required pursuant to this paragraph 6 would result in an increase
or decrease of less than 1% in the number of shares of Common Stock
into which each share of Series E Preferred Stock is then
convertible, the amount of any such adjustment shall be carried
forward and adjustment with respect thereto shall be made at the
time of and together with any subsequent adjustment which, together
with such amount and any other amount or amounts so carried
forward, shall aggregate at least 1% of the number of shares of
Common Stock into which each share of Series E Preferred Stock is
then convertible.
All calculations under this subparagraph (c) shall be made to the
nearest one-hundredth of a share.
(d) In order to effect the conversion of shares of the Series
E Preferred Stock into Common Stock in accordance with these
provisions, the holder thereof shall surrender at the Corporation's
principal office or such other office or agency as the Board of
Directors of the Corporation may designate the certificate or
certificates therefor, duly endorsed to the Corporation or in
blank, accompanied by a written notice to the Corporation at said
office stating that such holder elects to convert all or a
specified whole number of such shares in accordance with the
provisions of this paragraph 6 and specifying the name or names in
which the certificate or certificates for shares of Common Stock
are to be issued. Upon any conversion of shares of Series E
Preferred Stock into shares of Common Stock pursuant hereto, no
adjustment with respect to dividends shall be made; only those
dividends shall be payable on shares of Series E Preferred Stock so
converted as may be declared and may be payable to holders of
record of shares of Series E Preferred Stock on a date prior to the
Conversion Date (as defined herein) with respect to the shares so
converted; and only those dividends shall be payable on shares of
Common Stock issued upon such conversion as may be declared and
made payable to holders of record of shares of Common Stock on or
after such Conversion Date (as defined herein). Shares of the
Series E Preferred Stock shall be deemed to have been converted
immediately prior to the close of business on the date (the
"Conversion Date") of receipt by the Corporation of such notice and
the surrender of the certificate or certificates representing the
shares of Series E Preferred Stock to be converted (together with
any required instruments of transfer), and the rights of the holder
thereof, except for the right to receive Common Stock of the
Corporation in accordance herewith, shall cease on the Conversion
Date, and 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 Common Stock on
the Conversion Date. As promptly as practicable after the receipt
of such notice and the surrender of such shares as aforesaid, the
Corporation shall issue and deliver at said office to the person or
persons entitled to receive the same (i) a certificate or
certificates for the number of validly issued, fully paid and
nonassessable shares of Common Stock issuable upon such conversion,
together with a cash payment in lieu of any fraction of any share,
as hereinafter provided, and (ii) if less than the full number of
shares of Series E Preferred Stock evidenced by the surrendered
certificate or certificates are being converted, a new certificate
or certificates, of like tenor, for the number of shares evidenced
by such surrendered certificate or certificates less the number of
shares converted.
(e) No fractional shares of Common Stock shall be issued upon
conversion of shares of the Series E Preferred Stock but, in lieu
of any fraction of a share of Common Stock which would otherwise be
issuable in respect of the aggregate number of shares of the Series
E Preferred Stock surrendered for conversion at one time by the
same holder, the Corporation shall pay in cash as an adjustment of
such fraction an amount equal to the same fraction of the Market
Price (as defined herein) of the Common Stock, on the Conversion
Date, or, if such date is not a Trading Day (as defined herein), on
the next preceding date which was a Trading Day.
(f) The Corporation shall at all times reserve and keep
available out of its authorized but unissued shares the full number
of shares of Common Stock into which all shares of the Series E
Preferred Stock from time to time outstanding are convertible.
(g) The Corporation will pay any and all issue and other
taxes that may be payable in respect of any issue or delivery of
shares on conversion of shares of the Series E Preferred Stock
pursuant hereto. The Corporation shall not, however, be required
to pay any tax which may be payable in respect of any transfer
involved in such issue and delivery of shares in a name other than
that in which the shares so converted were registered, and no such
issue or delivery shall be made unless and until the person
requesting such issue 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.
(h) Shares of Series E Preferred Stock may not be converted
after the close of business on the third business day preceding the
date fixed for redemption of such shares pursuant to paragraph 5.
(i) In the event that:
(i) the Corporation shall take action to make any
distribution (other than cash dividends and dividends or
distributions payable in shares of its Common Stock) to the
holders of its Common Stock;
(ii) the Corporation shall take action to offer for
subscription pro rata to the holders of its Common Stock any
securities of any kind;
(iii) the Corporation shall take action to accomplish
any capital reorganization, or reclassification of the capital
stock of the Corporation (other than a subdivision, split or
combination of its Common Stock), or consolidation or merger to
which the Corporation is a party and for which approval of any
stockholders of the Corporation is required; or
(iv) the Corporation shall take action looking to a
voluntary or involuntary dissolution, liquidation or winding up
of the Corporation;
then the Corporation shall (A) in case of any such distribution or
subscription rights, at least 15 days prior to the date or expected
date on which the books of the Corporation shall close or record
shall be taken for the determination of holders entitled to such
distribution or subscription rights, and (B) in the case of any
such reorganization, reclassification, consolidation, merger,
dissolution, liquidation or winding up, at least 15 days prior to
the date or expected date when the same shall take place, cause
written notice thereof to be mailed to each holder of shares of
Series E Preferred Stock at his address as shown on the books of
the transfer agent of the Corporation. Such notice in accordance
with the foregoing clause (A) shall also specify, in the case of
any such distribution or subscription rights, the date or expected
date on which the holders of Common Stock shall be entitled
thereto, and such notice in accordance with the foregoing clause
(B) shall also specify the date or expected date on which the
holders of Common Stock shall be entitled to exchange their Common
Stock for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger,
dissolution, liquidation or winding up, as the case may be.
7. Relative Rights of Preferred Stock.
(a) So long as any of the Series E Preferred Stock is
outstanding the Corporation will not:
(i) Declare, or pay, or set apart for payment, any
dividends (other than dividends payable in stock ranking junior
to the Series E Preferred Stock as to dividends and upon
liquidation) or make any distribution in cash or other property
on any other class or series of stock of the Corporation ranking
junior to the Series E Preferred Stock either as to dividends or
upon liquidation and will not redeem, purchase or otherwise
acquire, any shares of any such junior class or series if at the
time of making such declaration, payment, distribution,
redemption, purchase or acquisition the Corporation shall be in
default with respect to any dividend payable on, or any
obligation to retire shares of, Series E Preferred Stock,
provided that, notwithstanding the foregoing, the Corporation
may at any time redeem, purchase or otherwise acquire shares of
stock of any such junior class in exchange for, or out of the
net cash proceeds from the sale of, other shares of stock of any
junior class or series; and
(ii) Without the affirmative vote or consent of the holders
of at least a majority of all the Series E Preferred Stock at
the time outstanding, given in person or by proxy, either in
writing or by resolution adopted at an annual or special meeting
called for the purpose, at which the holders of the shares of
this series shall vote separately as a class, (A) authorize,
create or issue, or increase the authorized or issued amount, of
any class or series of stock ranking prior to the Series E
Preferred Stock either as to dividends or upon liquidation; (B)
amend, alter or repeal any of the provisions of the
Corporation's Certificate of Incorporation, or of the
Certificate of Designations, Preferences and Rights of the
Series E Preferred Stock, so as to materially and adversely
affect the preferences, rights, privileges or powers of the
Series E Preferred Stock, or (C) merge or consolidate with or
into any other corporation with an effect on the Series E
Preferred Stock substantially similar to the effect of any
action described in the preceding clause (A) or (B), except that
the provisions of this paragraph shall not be applicable with
respect to any action described in such clause (A) or (B) where
the effect on the Series E Preferred Stock is required by the
terms of a series or class of preferred stock of such other
corporation which is outstanding before any such merger or
consolidation; provided, however, that any increase in the
authorized Preferred Stock or the creation and issuance of other
series of Preferred Stock ranking on a parity with the Series E
Preferred Stock shall not be deemed to materially and adversely
affect such preferences, rights, privileges or powers.
8. Status
Shares of this series which have been converted into Common
Stock or which have been issued and acquired in any manner by the
Corporation (excluding, until the Corporation elects to retire
them, shares which are held as treasury shares but including shares
redeemed and shares purchased and retired) shall, upon compliance
with any applicable provisions of the laws of the State of
Delaware, have the status of authorized and unissued shares of
Preferred Stock and may be reclassified and reissued as part of a
new series of Preferred Stock to be created by resolution or
resolutions of the Board of Directors or as part of any series of
Preferred Stock other than this series, all subject to the
conditions and restrictions on issuance set forth in any resolution
or resolution adopted by the Board of Directors providing for the
issue of any series of Preferred Stock.
9. Priority
The Series B and D Preferred Stock of the Corporation
heretofore authorized by the Board of Directors of the Corporation
shall rank on a parity with, and the Common Stock of the
Corporation shall rank junior to, the Series E Preferred Stock as
to dividends and upon liquidation.
10. Certain Definitions.
(a) For the purposes of these provisions the term "Common
Stock" means the Common Stock of the Corporation, $1.00 par value,
as the same exists as of the original date of issue of the Series
E Preferred Stock or as such stock may be reconstituted from time
to time.
(b) As used in these provisions, the term "Market Price" on
any day shall mean the reported last sales price on such day or, in
case no such sale takes place on such day, the average of the
reported closing bid and asked prices, in each case on the New York
Stock Exchange, or, if the Common Stock is not listed or admitted
to trading on such Exchange, on the principal national securities
exchange on which the Common Stock is listed or admitted to
trading, or, if not listed or admitted to trading on any national
securities exchange, then the average of the closing bid and asked
prices of the Common Stock in the over-the-counter market as
reported on NASDAQ or a similar reporting service; and the term
"Trading Day" shall mean a date on which the New York Stock
Exchange (or any successor to such Exchange) is open for the
transaction of business.
DESIGNATIONS, PREFERENCES AND RIGHTS OF
SERIES G CONVERTIBLE PREFERRED STOCK
1. Designation.
1,000,000 shares of Preferred Stock of the Corporation, no par
value, are hereby constituted as a series of Preferred Stock
designated as "Series G Convertible Preferred Stock" (hereinafter
called "Series G Preferred Stock").
2. Transferability.
The shares of Series G Preferred Stock shall not be
transferable by the holder thereof otherwise than by will or under
the laws of descent and distribution. In the event that any shares
of Series G Preferred Stock are transferred by will or under the
laws of descent and distribution and such shares of Series G
Preferred Stock are not thereafter converted into Common Stock
pursuant to the provisions of paragraphs 5 and 6, the Corporation
shall have the right to redeem such shares of Series G Preferred
Stock so transferred pursuant to the following provisions:
(a) At any time after six months from the date of death of
the holder which gave rise to such transfer, the Corporation shall
have the right, at its sole option and election, to redeem all of
such shares of Series G Preferred Stock so transferred by will or
under the laws of descent and distribution at a redemption price
per share equal to 95% of the audited book value per share of the
Common Stock as of the last day of the latest full fiscal year of
the Corporation, plus an amount equal to all accrued and unpaid
dividends and distributions thereon (the sum being hereinafter
referred to as the "Redemption Price"), whether or not declared, to
the date fixed by the Board for redemption (the "Redemption Date").
(b) The Corporation shall not redeem pursuant to this
paragraph 2 any of the Series G Preferred Stock at any time
outstanding until all dividends accrued and in arrears upon all
Series G Preferred Stock then outstanding shall have been paid for
all past dividend periods, and until full dividends for the then
current dividend periods on all Series G Preferred Stock then
outstanding, other than the shares to be redeemed, shall have been
paid or declared and the full amount thereof set apart for payment.
(c) Notice of any redemption of shares of Series G Preferred
Stock pursuant to this paragraph 2 shall be mailed at least 30, but
not more than 60, days prior to the redemption date to each holder
of shares of Series G Preferred Stock to be redeemed, at such
holder's address as it appears on the transfer agent's books. Any
notice which is mailed as herein provided shall be conclusively
presumed to have been duly given, whether or not the stockholder
receives such notice; and failure to give such notice by mail, or
any defect in such notice, to the holders of any shares designated
for redemption shall not affect the validity of the proceedings for
the redemption of any other shares of Series G Preferred Stock. On
or after the date fixed for redemption as stated in such notice,
each holder of the shares called for redemption shall surrender the
certificate or certificates evidencing such shares to the
Corporation at the place designated in such notice and shall
thereupon be entitled to receive payment of the Redemption Price.
(d) Shares of the Series G Preferred Stock shall be deemed to
have been redeemed immediately prior to the close of business on
the Redemption Date, the right to receive dividends and
distributions shall cease to accrue from and after the Redemption
Date, and the rights of the holder thereof, except for the right to
receive the Redemption Price in accordance herewith, shall cease
and terminate on the Redemption Date. As promptly as practicable
after surrender of such shares as aforesaid, the Corporation shall
pay to the holder the Redemption Price for each share of Series G
Preferred Stock surrendered for redemption.
3. Voting Rights.
In addition to any special voting rights provided to the
holders of the Series G Preferred Stock as or part of a separate
series or class pursuant to paragraph 8, any provision of the
Certificate of Incorporation of the Corporation and any other
voting rights provided by law, each holder of Series G Preferred
Stock shall be entitled to one vote in respect of each share of
stock held by him of record on the books of the Corporation on all
matters voted upon by the stockholders, such votes to be counted
together with those for any other shares of capital stock having
the right to vote on all such matters and not separately as a class
or group.
4. Dividends.
(a) The holders of shares of Series G Preferred Stock shall
be entitled to receive cumulative cash dividends, when and as
declared by the Board of Directors out of funds legally available
therefor, at an annual rate, based upon $20.00 per share, which
amount shall be proportionately adjusted in the event of any stock
dividend or distribution in shares of Series G Preferred Stock, any
subdivision, combination or reclassification of the outstanding
shares of Series G Preferred Stock, or any similar action, equal to
the prime rate to commercial borrowers posted by The Northern Trust
Company of Chicago on the January 1 or July 1 immediately preceding
the next dividend payment date and no more, before any dividend or
distribution in cash or other property (other than dividends
payable in stock ranking junior to the Series G Preferred Stock as
to dividends and upon liquidation) on any class or series of stock
of the Corporation ranking junior to the Series G Preferred Stock
as to dividends or on liquidation shall be declared or paid or set
apart for payment.
(b) Dividends on the Series G Preferred Stock shall be
payable semi-annually, when and as declared by the Board of
Directors, on June 30 and December 31 of each year, commencing the
first June 30 or December 31 after the date of the initial issuance
of shares of the Series G Preferred Stock, except that if such date
is a Saturday, Sunday or legal holiday then such dividends shall be
payable on the first immediately succeeding calendar day which is
not a Saturday, Sunday, or legal holiday, to holders of record on
the respective record dates not exceeding sixty days preceding such
dividend payment dates as may be determined by the Board of
Directors in advance of the payment of each particular dividend.
(c) Dividends on the Series G Preferred Stock shall be
cumulative and accrue from and after the date of original issuance
thereof, whether or not declared by the Board of Directors.
Accruals of dividends shall not bear interest.
(d) No dividend may be declared on any other class or series
of stock ranking junior or on a parity with the Series G Preferred
Stock as to dividends in respect of any dividend period unless
there shall also be or have been declared on the Series G Preferred
Stock like dividends for all semi-annual periods coinciding with or
ending before such semi-annual period, ratably in proportion to the
respective annual dividend rates fixed therefor.
5. Liquidation Rights.
(a) In the event of any dissolution, liquidation or winding
up of the Corporation, whether voluntary or involuntary, the
holders of outstanding shares of the Series G Preferred Stock shall
be entitled to receive, before any payment or distribution of
assets of the Corporation or proceeds thereof (whether capital or
surplus) shall be made to or set apart for the holders of any class
of common stock of the Corporation or any other class or series of
stock ranking junior to the Series G Preferred Stock upon
liquidation, cash, per share, in an amount equal to 95% of the book
value per share of the Common Stock on the date of liquidation plus
a sum equal to all dividends on such shares accrued and unpaid
thereon to the date of final distribution, but they shall be
entitled to no further payment. If, upon any liquidation,
dissolution or winding up of the Corporation, the assets of the
Corporation, or proceeds thereof, distributable among the holders
of the Series G Preferred Stock or any other class of Preferred
Stock ranking on a parity with the Series G Preferred Stock as to
payments upon liquidation, dissolution or winding up shall be
insufficient to pay in full the preferential amount aforesaid, then
such assets, or the proceeds thereof, shall be distributed among
such holders ratably in accordance with the respective amounts
which would be payable on such shares if all amounts payable
thereon were paid in full. For the purposes of this paragraph
4(a), the voluntary sale, lease, exchange or transfer (for cash,
shares of stock, securities or other consideration) of all or
substantially all of the property or assets of the Corporation to,
or a merger or consolidation of the Corporation with one or more
corporations in which the Corporation is the corporation surviving
such consolidation or merger shall not be deemed to be a
liquidation, dissolution or winding up, voluntary or involuntary.
(b) If there is a merger of the Corporation into or the
consolidation of the Corporation with another corporation in which
the Corporation is not the survivor, the holders of Series G
Preferred Stock shall retain the same rights in the surviving
corporation as outlined herein.
6. Conversion at Option of the Holder.
Each share of Series G Preferred Stock (other than those
shares which have been surrendered for redemption pursuant to
paragraph 2) may be converted at any time after six months from the
date of issuance of such share of Series G Preferred Stock, at the
option of the holder thereof, into shares of Common Stock of the
Corporation, on the terms and conditions set forth in this
paragraph 5:
(a) Each share of Series G Preferred Stock shall be
convertible at the option of the holder thereof, in the manner
hereinafter set forth, into .95 fully paid and nonassessable share
of Common Stock of the Corporation.
(b) In order to effect the conversion of shares of the Series
G Preferred Stock into Common Stock in accordance with these
provisions, the holder thereof shall surrender at the Corporation's
principal office or such other office or agency as the Board of
Directors of the Corporation may designate the certificate or
certificates therefor, duly endorsed to the Corporation or in
blank, accompanied by a written notice to the Corporation at said
office stating that such holder elects to convert all or a
specified whole number of such shares in accordance with the
provisions of this paragraph 5 and specifying the name or names in
which the certificate or certificates for shares of Common Stock
are to be issued. No payment or adjustment shall be made upon any
conversion on account of any dividends accrued on the shares of the
Series G Preferred Stock surrendered for conversion or on account
of any dividends on the Common Stock issued upon such conversion.
Shares of the Series G Preferred Stock shall be deemed to have been
converted immediately prior to the close of business on the date
(the "Conversion Date") of receipt by the Corporation of such
notice and the surrender of the certificate or certificates
representing the shares of Series G Preferred Stock to be converted
(together with any required instruments of transfer), and the
rights of the holder thereof, except for the right to receive
Common Stock of the Corporation in accordance herewith, shall cease
on the Conversion Date, and 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
Common Stock on the Conversion Date. As promptly as practicable
after the receipt of such notice and the surrender of such shares
as aforesaid, the Corporation shall issue and deliver at said
office to the person or persons entitled to receive the same (i) a
certificate or certificates for the number of validly issued, fully
paid and nonassessable shares of Common Stock issuable upon such
conversion, together with a cash payment in lieu of any fraction of
any share, as hereinafter provided, and (ii) if less than the full
number of shares of Series G Preferred Stock evidenced by the
surrendered certificate or certificates are being converted, a new
certificate or certificates, of like tenor, for the number of
shares evidenced by such surrendered certificate or certificates
less the number of shares converted.
(c) No fractional shares of Common Stock shall be issued upon
conversion of shares of the Series G Preferred Stock but, in lieu
of any fraction of a share of Common Stock which would otherwise be
issuable in respect of the aggregate number of shares of the Series
G Preferred Stock surrendered for conversion at one time by the
same holder, the Corporation shall pay in cash as an adjustment of
such fraction an amount equal to the same fraction of the Market
Price (as defined herein) of the Common Stock, on the Conversion
Date, or, if such date is not a Trading Day (as defined herein), on
the next preceding date which was a Trading Day.
(d) The Corporation shall at all times reserve and keep
available out of its authorized but unissued shares the full number
of shares of Common Stock into which all shares of the Series G
Preferred Stock from time to time outstanding are convertible.
(e) The Corporation will pay any and all issue and other
taxers that may be payable in respect of any issue or delivery of
shares on conversion of shares of the Series G Preferred Stock
pursuant hereto. The Corporation shall not, however, be required
to pay any tax which may be payable in respect of any transfer
involved in such issue and delivery of shares in a name other than
that in which the shares so converted were registered, and no such
issue or delivery shall be made unless and until the person
requesting such issue 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.
(f) Shares of Series G Preferred Stock may not be converted
after the close of business on the third business day preceding the
date fixed for redemption or conversion by the Corporation of such
shares pursuant to paragraphs 2 and 6.
7. Conversion at Option of the Corporation.
Each share of Series G Preferred Stock (other than those
shares which have been surrendered for redemption or conversion
pursuant to paragraphs 2 and 5) may be converted after five years
from the date of issuance of such share, at the option of the
Corporation, into shares of Common Stock of the Corporation, on the
terms and conditions set forth in this paragraph 6:
(a) Each share of Series G Preferred Stock shall be
convertible at the option of the Corporation, in the manner
hereinafter set forth, into .95 fully paid and nonassessable shares
of Common Stock of the Corporation.
(b) If less than all of the shares of Series G Preferred
Stock at the time outstanding are to be converted, the shares so to
be converted shall be selected by lot, pro rata (as nearly as may
be) or in such other manner as the Board of Directors may determine
in its sole discretion to be fair and proper, except that in any
conversion of fewer than all of the outstanding shares of Series G
Preferred Stock, the Corporation may convert all shares held by
holders of less than 100 shares of Series G Preferred Stock.
Notwithstanding the foregoing provisions, the Corporation shall not
convert less than all of the Series G Preferred Stock at any time
outstanding until all dividends accrued and in arrears upon all
Series G Preferred Stock then outstanding shall have been paid for
all past dividend periods, and until full dividends for the then
current dividend period on all series G Preferred Stock then
outstanding, other than the shares to be converted, shall have been
paid or declared and the full amount thereof set apart for payment.
(c) Notice of any conversion of shares of Series G Preferred
Stock pursuant to this paragraph 6 shall be mailed at least 30, but
not more than 60, days prior to the date fixed by the Board for
conversion (the "Corporation Conversion Date") to each holder of
shares of Series G Preferred Stock to be converted, at such
holder's address as it appears on the books of the Corporation. In
order to facilitate the conversion of shares of Series G Preferred
Stock, the Board of Directors may fix a record date for the
determination of holders of shares of Series G Preferred Stock to
be converted not more than 60 days prior to the date fixed for such
conversion.
(d) Any notice which is mailed as herein provided shall be
conclusively presumed to have been duly given, whether or not the
stockholder receives such notice; and failure to give such notice
by mail, or any defect in such notice, to the holders of any shares
designated for conversion shall not affect the validity of the
proceedings for the conversion of any other shares of Series G
Preferred Stock. On or after the date fixed for conversion as
stated in such notice, each holder of the shares called for
conversion shall surrender the certificate or certificates
evidencing such shares to the Corporation at the place designated
in such notice and shall thereupon be entitled to receive a
certificate or certificates for the number of validly issued,
fully-paid and nonassessable shares of Common Stock issuable upon
such conversion, together with a cash payment in lieu of any
fraction of any share, as hereinafter provided. If less than all
the shares represented by any such surrendered certificate are
converted, a new certificate shall be issued representing the
unconverted shares.
(e) No payment or adjustment shall be made upon any
conversion on account of any dividends accrued on the shares of the
Series G Preferred Stock surrendered for conversion or on account
of any dividends on the Common Stock issued upon such conversion.
Shares of the Series G Preferred Stock shall be deemed to have been
converted immediately prior to the close of business on the
Corporation Conversion Date, and the rights of the holder thereof,
except for the right to receive Common Stock of the Corporation in
accordance herewith, shall cease on the Corporation Conversion
Date, and 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 Common Stock on
the Corporation Conversion Date.
(f) No fractional shares of Common Stock shall be issued upon
conversion of shares of the Series G Preferred Stock but, in lieu
of any fraction of a share of Common Stock which would otherwise be
issuable in respect of the aggregate number of shares of the Series
G Preferred Stock surrendered for conversion at one time by the
same holder, the Corporation shall pay in cash as an adjustment of
such fraction an amount equal to the same fraction of the Market
Price (as defined herein) of the Common Stock, on the Corporation
Conversion Date, or, if such date is not a Trading Day (as defined
herein), on the next preceding date which was a Trading Day.
(g) The Corporation shall at all times reserve and keep
available out of its authorized but unissued shares the full number
of shares of Common Stock into which all shares of the Series G
Preferred Stock from time to time outstanding are convertible.
(h) The Corporation will pay any and all issue and other
taxes that may be payable in respect of any issue or delivery of
shares on conversion of shares of the Series G Preferred Stock
pursuant hereto. The Corporation shall not, however, be required
to pay any tax which may be payable in respect of any transfer
involved in such issue and delivery of shares in a name other than
that in which the shares so converted were registered, and no such
issue or delivery shall be made unless and until the person
requesting such issue 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.
8. Distribution or Reclassification of Series G Preferred Stock
In the Event of Distribution or Reclassification of Common
Stock or Class B Common Stock; Adjustment of Conversion Ratio.
(a) In the event the Corporation shall at any time after the
issuance of Series G Preferred Stock pay a dividend or make a
distribution in shares of Common Stock or Class B Common Stock or
subdivide or reclassify its outstanding shares of Common Stock or
Class B Common Stock into a greater number of shares of Common
Stock or Class B Common Stock, respectively, then a proportionate
dividend, distribution, subdivision or reclassification of the
outstanding Series G Preferred Stock shall also be effected, as of
the effective date of the applicable distribution or adjustment
with respect to the Common Stock or Class B Common Stock. In such
event, the Redemption Price per share specified in these provisions
shall be reduced proportionately as to all shares of Series G
Preferred Stock outstanding or thereafter issued and the annual
dividend per share specified in these provisions shall be adjusted
as provided in paragraph 4.
(b) In the event the outstanding Common Stock or Class B
Common Stock of the Corporation is hereafter combined into a
smaller number of shares, then the rate of conversion only,
specified herein, shall be adjusted proportionately.
9. Relative Rights of Preferred Stock.
So long as any of the Series G Preferred Stock is outstanding
the Corporation will not:
(i) Declare, or pay, or set apart for payment, any
dividends (other than dividends payable in stock ranking junior
to the Series G Preferred Stock as to dividends and upon
liquidation) or make any distribution in cash or other property
on any other class or series of stock of the Corporation ranking
junior to the Series G Preferred Stock either as to dividends or
upon liquidation and will not redeem, purchase or otherwise
acquire, any shares of any such junior class or series if at the
time of making such declaration, payment, distribution,
redemption, purchase or acquisition the Corporation shall be in
default with respect to any dividend payable on, or any
obligation to retire shares of, Series G Preferred Stock,
provided that, notwithstanding the foregoing, the Corporation
may at any time redeem, purchase or otherwise acquire shares of
stock of any such junior class in exchange for, or out of the
net cash proceeds from the sale of, other shares of stock of any
junior class or series; or
(ii) Without the affirmative vote or of the holders of two-
thirds of all the Series G Preferred Stock at the time
outstanding, given in person or by proxy, by resolution adopted
at an annual or special meeting called for the purpose, at which
the holders of the shares of this series shall vote separately
as a class, (A) authorize, create or issue, or increase the
authorized or issued amount, of any class or series of stock
ranking prior to the Series G Preferred Stock either as to
dividends or upon liquidation; or (B) amend, alter or repeal any
of the provisions of the Corporation's Certificate of
Incorporation, Bylaws or Certificate of Designations,
Preferences and Rights of the Series G Preferred Stock, so as to
materially and adversely affect the preferences, rights,
privileges or powers of the Series G Preferred Stock; provided,
however, that any increase in the authorized Preferred Stock or
the creation and issuance of other series of Preferred Stock
ranking on a parity with the Series G Preferred Stock shall not
be deemed to materially and adversely affect such preferences,
rights, privileges or powers.
10. Status.
Shares of this series which have been converted into Common
Stock or which have been issued and acquired in any manner by the
Corporation (excluding, until the Corporation elects to retire
them, shares which are held as treasury shares but including shares
redeemed and shares purchased and retired) shall, upon compliance
with any applicable provisions of the laws of the State of
Delaware, have the status of authorized and unissued shares of
Preferred Stock and may be reclassified and reissued as part of a
new series of Preferred Stock to be created by resolution or
resolutions of the Board of Directors or as part of any series of
Preferred Stock other than this series, all subject to the
conditions and restrictions on issuance set forth in any resolution
or resolutions adopted by the Board of Directors providing for the
issue of any series of Preferred Stock.
11. Priority.
The Series B, D and E Preferred Stock of the Corporation
heretofore authorized by the Board of Directors of the Corporation
shall rank on a parity with, and the Common Stock and Class B
Common Stock of the Corporation shall rank junior to, the Series G
Preferred Stock as to dividends and upon liquidation.
12. Certain Definitions.
(a) For the purposes of these provisions the terms "Common
Stock" and "Class B Common Stock" mean the Common Stock of the
Corporation, $1.00 par value, and the Class B Common Stock of the
Corporation, $1.00 par value, as the same exist as of the original
date of issue of the Series G Preferred Stock or as such stock may
be reconstituted from time to time.
(b) As used in these provisions, the term "Market Price" on
any day shall mean the reported last sales price on such day or, in
case no such sale takes place on such day, the average of the
reported closing bid and asked prices, in each case on the New York
Stock Exchange, or, if the Common Stock is not listed or admitted
to trading on such Exchange, on the principal national securities
exchange on which the Common Stock is listed or admitted to
trading, or, if not listed or admitted to trading on any national
securities exchange, then the average of the closing bid and asked
prices of the Common Stock in the over-the-counter market as
reported on NASDAQ or a similar reporting service; and the term
"Trading Day" shall mean a date on which the New York Stock
Exchange (or any successor to such Exchange) is open for the
transaction of business.
DESIGNATIONS, PREFERENCES AND RIGHTS OF
SERIES G-2 CONVERTIBLE
PREFERRED STOCK
1. Designation.
1,000,000 shares of Preferred Stock of the Corporation, no par
value, are hereby constituted as a series of Preferred Stock
designated as "Series G-2 Convertible Preferred Stock" (hereinafter
called "Series G-2 Preferred Stock").
2. Transferability.
The shares of Series G-2 Preferred Stock shall not be
transferable by the holder thereof otherwise than by will or under
the laws of descent and distribution. In the event that any shares
of Series G-2 Preferred Stock are transferred by will or under the
laws of descent and distribution and such shares of Series G-2
Preferred Stock are not thereafter converted into Common Stock
pursuant to the provisions of paragraphs 5 and 6, the Corporation
shall have the right to redeem such shares of Series G-2 Preferred
Stock so transferred pursuant to the following provisions:
(a) At any time after six months from the date of death of
the holder which gave rise to such transfer, the Corporation shall
have the right, at its sole option and election, to redeem all of
such shares of Series G-2 Preferred Stock so transferred by will or
under the laws of descent and distribution at a redemption price
per share equal to 95% of the audited book value per share of the
Common Stock as of the last day of the latest full fiscal year of
the Corporation, plus an amount equal to all accrued and unpaid
dividends and distributions thereon (the sum being hereinafter
referred to as the "Redemption Price"), whether or not declared, to
the date fixed by the Board for redemption (the "Redemption Date").
(b) The Corporation shall not redeem pursuant to this
paragraph 2 any of the Series G-2 Preferred Stock at any time
outstanding until all dividends accrued and in arrears upon all
Series G-2 Preferred Stock then outstanding shall have been paid
for all past dividend periods, and until full dividends for the
then current dividend period on all Series G-2 Preferred Stock then
outstanding, other than the shares to be redeemed, shall have been
paid or declared and the full amount thereof set apart for payment.
(c) Notice of any redemption of shares of Series G-2
Preferred Stock pursuant to this paragraph 2 shall be mailed at
least 30, but not more than 60, days prior to the redemption date
to each holder of shares of Series G-2 Preferred Stock to be
redeemed, at such holder's address as it appears on the transfer
agent's books. Any notice which is mailed as herein provided shall
be conclusively presumed to have been duly given, whether or not
the stockholder receives such notice; and failure to give such
notice by mail, or any defect in such notice, to the holders of any
shares designated for redemption shall not affect the validity of
the proceedings for the redemption of any other shares of Series G-
2 Preferred Stock. On or after the date fixed for redemption as
stated in such notice, each holder of the shares called for
redemption shall surrender the certificate or certificates
evidencing such shares to the Corporation at the place designated
in such notice and shall thereupon be entitled to receive payment
of the Redemption Price.
(d) Shares of the Series G-2 Preferred Stock shall be deemed
to have been redeemed immediately prior to the close of business on
the Redemption Date, the right to receive dividends and
distributions shall cease to accrue from and after the Redemption
Date, and the rights of the holder thereof, except for the right to
receive the Redemption Price in accordance herewith, shall cease
and terminate on the Redemption Date. As promptly as practicable
after surrender of such shares as aforesaid, the Corporation shall
pay to the holder the Redemption Price for each share of Series G-2
Preferred Stock surrendered for redemption.
3. Voting Rights.
In addition to any special voting rights provided to the
holders of the Series G-2 Preferred Stock as or part of a separate
series or class pursuant to paragraph 8, any provision of the
Certificate of Incorporation of the Corporation and any other
voting rights provided by law, each holder of Series G-2 Preferred
Stock shall be entitled to one vote in respect of each share of
stock held by him of record on the books of the Corporation on all
matters voted upon by the stockholders, such votes to be counted
together with those for any other shares of capital stock having
the right to vote on all such matters and not separately as a class
or group.
4. Dividends.
(a) The holders of shares of Series G-2 Preferred Stock shall
be entitled to receive cumulative cash dividends, when and as
declared by the Board of Directors out of funds legally available
therefor, at an annual rate, based upon $21.79 per share, which
amount shall be proportionately adjusted in the event of any stock
dividend or distribution in shares of Series G-2 Preferred Stock,
any subdivision, combination or reclassification of the outstanding
shares of Series G-2 Preferred Stock, or any similar action, equal
to the prime rate to commercial borrowers posted by The Northern
Trust Company of Chicago on the January 1 or July 1 immediately
preceding the next dividend payment date and no more, before any
dividend or distribution in cash or other property (other than
dividends payable in stock ranking junior to the Series G-2
Preferred Stock as to dividends and upon liquidation) on any class
or series of stock of the Corporation ranking junior to the Series
G-2 Preferred Stock as to dividends or on liquidation shall be
declared or paid or set apart for payment.
(b) Dividends on the Series G-2 Preferred Stock shall be
payable semi-annually, when and as declared by the Board of
Directors, on June 30 and December 31 of each year, commencing the
first June 30 or December 31 after the date of the initial issuance
of shares of the Series G-2 Preferred Stock, except that if such
date is a Saturday, Sunday or legal holiday then such dividends
shall be payable on the first immediately succeeding calendar day
which is not a Saturday, Sunday, or legal holiday, to holders of
record on the respective record dates not exceeding sixty days
preceding such dividend payments dates as may be determined by the
Board of Directors in advance of the payment of each particular
dividend.
(c) Dividends on the Series G-2 Preferred Stock shall be
cumulative and accrue from and after the date of original issuance
thereof, whether or not declared by the Board of Directors.
Accruals or dividends shall not bear interest.
(d) No dividend may be declared on any other class or series
of stock ranking junior or on a parity with the Series G-2
Preferred Stock as to dividends in respect of any dividend period
unless there shall also be or have been declared on the Series G-2
Preferred Stock like dividends for all semi-annual periods
coinciding with or ending before such semi-annual period, ratably
in proportion to the respective annual dividend rates fixed
therefor.
4. Liquidation Rights.
(a) In the event of any dissolution, liquidation or winding
up of the Corporation, whether voluntary or involuntary, the
holders of outstanding shares of the Series G-2 Preferred Stock
shall be entitled to receive, before any payment or distribution of
assets of the Corporation or proceeds thereof (whether capital or
surplus) shall be made to or set apart for the holders of any class
of common stock of the Corporation or any other class or series of
stock ranking junior to the Series G-2 Preferred Stock upon
liquidation, cash, per share, in an amount equal to 95% of the book
value per share of the Common Stock on the date of liquidation plus
a sum equal to all dividends on such shares accrued and unpaid
thereon to the date of final distribution, but they shall be
entitled to no further payment. If, upon any liquidation,
dissolution or winding up of the Corporation, the assets of the
Corporation, or proceeds thereof, distributable among the holders
of the Series G-2 Preferred Stock or any other class of Preferred
Stock ranking on a parity with the Series G-2 Preferred Stock as to
payments upon liquidation, dissolution or winding up shall be
insufficient to pay in full the preferential amount aforesaid, then
such assets, or the proceeds thereof, shall be distributed among
such holders ratably in accordance with the respective amounts
which would be payable on such shares if all amounts payable
thereon were paid in full. For the purposes of this paragraph
4(a), the voluntary sale, lease, exchange or transfer (for cash,
shares of stock, securities or other consideration) of all or
substantially all of the property or assets of the Corporation to,
or a merger or consolidation of the Corporation with one or more
corporations in which the Corporation is the corporation surviving
such consolidation of merger shall not be deemed to be a
liquidation dissolution or winding up, voluntary or involuntary.
(b) If there is a merger of the Corporation into or the
consolidation of the Corporation with another corporation in which
the Corporation is not the survivor, the holders of Series G-2
Preferred Stock shall retain the same rights in the surviving
corporation as outlined herein.
5. Conversion at Option of the Holder.
Each share of Series G-2 Preferred Stock (other than those
shares which have been surrendered for redemption pursuant to
paragraph 2) may be converted at any time after six months from the
date of issuance of such share of Series G-2 Preferred Stock, at
the option of the holder thereof, into shares of Common Stock of
the Corporation, on the terms and conditions set forth in this
paragraph 5.
(a) Each share of Series G-2 Preferred Stock shall be
convertible at the option of the holder thereof, in the manner
hereinafter set forth, into .95 fully paid and nonassessable shares
of Common Stock of the Corporation.
(b) In order to effect the conversion of shares of the Series
G-2 Preferred Stock into Common Stock in accordance with these
provisions, the holder thereof shall surrender at the Corporation's
principal office or such other office or agency as the Board of
Directors of the Corporation may designate the certificate or
certificates therefor, duly endorsed to the Corporation or in
blank, accompanied by a written notice to the Corporation at said
office stating that such holder elects to convert all or a
specified whole number of such shares in accordance with the
provisions of this paragraph 5 and specifying the name or names in
which the certificate or certificates for shares of Common Stock
are to be issued. No payment or adjustment shall be made upon any
conversion on account of any dividends accrued on the shares of the
Series G-2 Preferred Stock surrendered for conversion or on account
of any dividends on the Common Stock issued upon such conversion.
Shares of the Series G-2 Preferred Stock shall be deemed to have
been converted immediately prior to the close of business on the
date (the "Conversion Date") of receipt by the Corporation of such
notice and the surrender of the certificate or certificates
representing the shares of Series G-2 Preferred Stock to be
converted (together with any required instruments or transfer), and
the rights of the holder thereof, except for the right to receive
Common Stock of the Corporation in accordance herewith, shall cease
on the Conversion Date, and 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
Common Stock on the Conversion Date. As promptly as practicable
after the receipt of such notice and the surrender of such shares
as aforesaid, the Corporation shall issue and deliver at said
office to the person or persons entitled to receive the same (i) a
certificate or certificates for the number of validly issued,
fully-paid and nonassessable shares of Common Stock issuable upon
such conversion, together with a cash payment in lieu of any
fraction of any share, as hereinafter provided, and (ii) if less
than the full number of shares of Series G-2 Preferred Stock
evidenced by the surrendered certificate or certificates are being
converted, a new certificate or certificates, of like tenor, for
the number of shares evidenced by such surrendered certificate or
certificates less the number of shares converted.
(c) No fractional shares of Common Stock shall be issued upon
conversion of shares of the Series G-2 Preferred Stock but, in lieu
of any fraction of a share of Common Stock which would otherwise be
issuable in respect of the aggregate number of shares of the Series
G-2 Preferred Stock surrendered for conversion at one time by the
same holder, the Corporation shall pay in cash as an adjustment of
such fraction an amount equal to the same fraction of the Market
Price (as defined herein) of the Common Stock, on the Conversion
Date, or, if such date is not a Trading Day (as defined herein), on
the next preceding date which was a Trading Day.
(d) The Corporation shall at all times reserve and keep
available out of its authorized but unissued shares the full number
of shares of Common Stock into which all shares of the Series G-2
Preferred Stock from time to time outstanding are convertible.
(e) The Corporation will pay any and all issue and other
taxes that may be payable in respect of any issue or delivery of
shares on conversion of shares of the Series G-2 Preferred Stock
pursuant hereto. The Corporation shall not, however, be required
to pay any tax which may be payable in respect of any transfer
involved in such issue and delivery of shares in a name other than
that in which the shares so converted were registered, and no such
issue or delivery shall be made unless and until the person
requesting such issue 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.
(f) Shares of Series G-2 Preferred Stock may not be converted
after the close of business on the third business day preceding the
date fixed for redemption or conversion by the Corporation of such
shares pursuant to paragraphs 2 and 6.
6. Redemption or Conversion at Option of the Corporation.
The Corporation shall have the right either to redeem or to
convert shares of Series G-2 Preferred Stock pursuant to the
following provisions:
(a) Each share of Series G-2 Preferred Stock, at any time
after five years following the date of issuance of such share,
shall be redeemable by the Corporation, at its sole option and
discretion, at a redemption price of $21.79 per share, plus an
amount equal to all accrued and unpaid dividends and distributions
thereon (hereinafter the "Redemption Price"), whether or not
declared, to the date fixed by the Board of Directors for
redemption (hereinafter the "Redemption Date"), or convertible by
the Corporation, at its sole option and discretion, into .95 fully
paid and nonassessable share of Common Stock of the Corporation.
(b) If less than all of the shares of Series G-2 Preferred
Stock at the time outstanding are to be redeemed or converted, the
shares so to be redeemed or converted shall be selected by lot, pro
rata (as nearly as may be) or in such other manner as the Board of
Directors may determine in its sole discretion to be fair and
proper, except that in any redemption or conversion of fewer than
all of the outstanding shares of Series G-2 Preferred Stock, the
Corporation may redeem or convert all shares held by holders of
less than 100 shares of Series G-2 Preferred Stock.
Notwithstanding the foregoing provisions, the Corporation shall not
redeem or convert less than all of the Series G-2 Preferred Stock
at any time outstanding until all dividends accrued and in arrears
upon all Series G-2 Preferred Stock then outstanding shall have
been paid for all past dividend periods, and until full dividends
for the then current dividend period on all Series G-2 Preferred
Stock then outstanding, other than the shares to be redeemed or
converted, shall have been paid or declared and the full amount
thereof set apart for payment.
(c) Notice of any redemption or conversion of shares of
Series G-2 Preferred Stock pursuant to this paragraph 6 shall be
mailed at least 30, but not more than 60, days prior to the
Redemption Date or the date fixed by the Board for conversion (the
"Corporation Conversion Date") to each holder of shares of Series
G-2 Preferred Stock to be redeemed or converted, at such holder's
address as it appears on the books of the Corporation. In order to
facilitate the redemption or conversion of shares of Series G-2
Preferred Stock, the Board of Directors may fix a record date for
the determination of holders of shares of Series G-2 Preferred
Stock to be redeemed or converted not more than 60 days prior to
the date fixed for such redemption or conversion.
(d) Any notice which is mailed as herein provided shall be
conclusively presumed to have been duly given, whether or not the
stockholder receives such notice; and failure to give such notice
by mail, or any defect in such notice, to the holders of any shares
designated for redemption or conversion shall not affect the
validity of the proceedings for the redemption or conversion of any
other shares of Series G-2 Preferred Stock. On or after the
Redemption or Corporate Conversion Date as stated in such notice,
each holder of the shares called for redemption or conversion shall
surrender the certificate or certificates evidencing such shares to
the Corporation at the place designated in such notice and shall
thereupon be entitled to receive either the redemption price, in
the case of a redemption, or a certificate or certificates for the
number of validly issued, fully-paid and nonassessable shares of
Common Stock issuable in the case of a conversion, together with a
cash payment in lieu of any fraction of any share, as hereinafter
provided. If less than all the shares represented by any such
surrendered certificate are redeemed or converted, a new
certificate shall be issued representing the unredeemed or
unconverted shares.
(e) No payment or adjustment shall be made upon any
redemption or conversion on account of any dividends accrued on the
shares of the Series G-2 Preferred Stock surrendered for redemption
or conversion or on account of any dividends on the Common Stock
issued upon such redemption or conversion. Shares of the Series G-
2 Preferred Stock shall be deemed to have been redeemed or
converted immediately prior to the close of business on the
Redemption Date or Corporation Conversion Date, and the rights of
the holder thereof, except for the right to receive the Redemption
Price or Common Stock of the Corporation in accordance herewith,
shall cease on the Redemption Date or Corporation Conversion Date,
and the person or persons entitled to receive the Common Stock
issuable in the case of conversion shall be treated for all
purposes as the record holder or holders of such Common Stock on
the Corporation Conversion Date.
(f) No fractional shares of Common Stock shall be issued upon
conversion of shares of the Series G-2 Preferred Stock but, in lieu
of any fraction of a share of Common Stock which would otherwise be
issuable in respect of the aggregate number of shares of the Series
G-2 Preferred Stock surrendered for conversion at one time by the
same holder, the Corporation shall pay in cash as an adjustment of
such fraction an amount equal to the same fraction of the Market
Price (as defined herein), of the Common Stock, on the Corporation
Conversion Date, or, if such date is not a Trading Day (as defined
herein), on the next preceding date which was a Trading Day.
(g) The Corporation shall at all times reserve and keep
available out of its authorized but unissued shares the full number
of shares of Common Stock into which all shares of the Series G-2
Preferred Stock from time to time outstanding are convertible.
(h) The Corporation will pay any and all issue and other
taxes that may be payable in respect of any issue or delivery of
shares on conversion of shares of the Series G-2 Preferred Stock
pursuant hereto. The Corporation shall not, however, be required
to pay any tax which may be payable in respect of any transfer
involved in such issue and delivery of shares in a name other than
that in which the shares so converted were registered, and no such
issue or delivery shall be made unless and until the person
requesting such issue 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.
(i) In the case of a redemption, the Corporation may, on or
prior to the Redemption Date, but not earlier than 45 days prior to
the Redemption Date, deposit with its transfer agent or other
redemption agent selected by the Board of Directors of the
Corporation, as a trust fund, a sum sufficient to redeem the shares
of Series G-2 Preferred Stock called for redemption, with
irrevocable instructions and authority to such transfer agent or
other redemption agent to give or complete the notice of redemption
thereof and to pay to the respective holders of such shares of
Series G-2 Preferred Stock, as evidenced by a list of such holders
certified by an officer of the Corporation, the Redemption Price
upon surrender of their respective share certificates. Such
deposit shall be deemed to constitute full payment of such shares
of Series G-2 Preferred Stock to their holders; and from and after
the date of such deposit, notwithstanding that any certificates for
such shares of Series G-2 Preferred Stock shall not have been
surrendered for cancellation, the shares represented thereby shall
no longer be deemed outstanding, the rights to receive dividends
and distributions shall cease to accrue from and after the
Redemption Date, and all rights of the holders of the shares of
Series G-2 Preferred Stock called for redemption, as stockholders
of the Corporation with respect to such shares, shall cease and
terminate, except the right to receive the Redemption Price,
without interest, upon the surrender of their respective
certificates, and except the right to convert their shares into
Common Stock as provided in paragraph 5 hereof, until the close of
business on the Redemption Date. In case the holders of any shares
shall not, within six years after such deposit, claim the amount
deposited for redemption thereof, such transfer agent or other
redemption agent shall, upon demand, pay over to the Corporation
the balance of such amount so deposited. Thereupon, such transfer
agent or other redemption agent shall be relieved of all
responsibility to the holders thereof and the sole right of such
holders shall be as general creditors of the Corporation. To the
extent that shares of Series G-2 Preferred Stock called for
redemption are converted into Common Stock prior to the Redemption
Date, the amount deposited by the Corporation to redeem such shares
shall immediately be returned to the Corporation. Any interest
accrued on any funds so deposited shall belong to the Corporation,
and shall be paid to it from time to time on demand.
7. Distribution of Reclassification of Series G-2 Preferred Stock
In the Event of Distribution or Reclassification of Common
Stock or Class B Common Stock; Adjustment of Conversion Ratio.
(a) In the event the Corporation shall at any time after the
issuance of Series G-2 Preferred Stock pay a dividend or make a
distribution in shares of Common Stock or Class B Common Stock or
subdivide or reclassify its outstanding shares of Common Stock or
Class B Common Stock into a greater number of shares of Common
Stock or Class B Common Stock, respectively, then a proportionate
dividend, distribution, subdivision or reclassification of the
outstanding Series G-2 Preferred Stock shall also be effected, as
of the effective date of the applicable distribution or adjustment
with respect to the Common Stock or Class B Common Stock. In such
event, the Redemption Price per share specified in these provisions
shall be reduced proportionately as to all shares of Series G-2
Preferred Stock outstanding or thereafter issued and the annual
dividend per share specified in these provisions shall be adjusted
as provided in paragraph 4.
(b) In the event the outstanding Common Stock or Class B
Common Stock of the Corporation is hereafter combined into a
smaller number of shares, then the rate of conversion only,
specified herein, shall be adjusted proportionately.
8. Relative Rights of Preferred Stock.
So long as any of the Series G-2 Preferred Stock is
outstanding the Corporation will not:
(i) Declare, or pay, or set apart for payment, any
dividends (other than dividends payable in stock ranking junior
to the Series G-2 Preferred Stock as to dividends and upon
liquidation) or make any distribution in cash or other property
on any other class or series of stock of the Corporation ranking
junior to the Series G-2 Preferred Stock either as to dividends
or upon liquidation and will not redeem, purchase or otherwise
acquire, any shares of any such junior class or series if at the
time of making such declaration, payment, distribution,
redemption, purchase or acquisition the Corporation shall be in
default with respect to any dividend payable on, or any
obligation to retire shares of, Series G-2 Preferred Stock,
provided that, notwithstanding the foregoing, the Corporation
may at any time redeem, purchase or otherwise acquire shares of
stock of any such junior class in exchange for, or out of the
net cash proceeds from the sale of, other shares of stock of any
junior class or series; or
(ii) Without the affirmative vote or of the holders of
two-thirds of all the Series G-2 Preferred Stock at the time
outstanding, given in person or by proxy, by resolution adopted
at an annual or special meeting called for the purpose, at which
the holders of the shares of this series shall vote separately
as a class, (A) authorize, create or issue, or increase the
authorized or issued amount, of any class or series of stock
ranking prior to the Series G-2 Preferred Stock either as to
dividends or upon liquidation; or (B) amend, alter or repeal any
of the provisions of the Corporation's Certificate of
Incorporation, Bylaws or Certificate of Designations,
Preferences and Rights of the Series G-2 Preferred Stock, so as
to materially and adversely affect the preferences, rights,
privileges or powers of the Series G-2 Preferred Stock;
provided, however, that any increase in the authorized Preferred
Stock or in the creation and issuance of other series of
Preferred Stock ranking on a parity with the Series G-2
Preferred Stock shall not be deemed to materially and adversely
affect such preferences, rights, privileges or powers.
9. Status.
Shares of this series which have been converted into Common
Stock or which have been issued and acquired in any manner by the
Corporation (excluding, until the Corporation elects to retire
them, shares which are held as treasury shares but including shares
redeemed and shares purchased and retired) shall, upon compliance
with any applicable provisions of the laws of the State of
Delaware, have the status of authorized and unissued shares of
Preferred Stock and may be reclassified and reissued as part of a
new series of Preferred Stock to be created by resolution or
resolutions of the Board of Directors or as part of any series of
Preferred Stock other than this series, all subject to the
conditions and restrictions on issuances set forth in any
resolution or resolutions adopted by the Board of Directors
providing for the issue of any series of Preferred Stock.
10. Priority.
The Series B, D, E, and G Preferred Stock of the Corporation
heretofore authorized by the Board of Directors of the Corporation
shall rank on a parity with, and the Common Stock and Class B
Common Stock of the Corporation shall rank junior to, the Series G-
2 Preferred Stock as to dividends and upon liquidation.
11. Certain Definitions.
(a) For the purposes of these provisions the terms "Common
Stock" and "Class B Common Stock" mean the Common Stock of the
Corporation, $1.00 par value, and the Class B Common Stock of the
Corporation, $1.00 par value, as the same exist as of the original
date of issue of the Series G Preferred Stock or as such stock may
be reconstituted from time to time.
(b) As used in these provisions, the term "Market Price" on
any day shall mean the reported last sales price on such day or, in
case no such sale takes place on such day, the average of the
reported closing bid and asked prices, in each case on the New York
Stock Exchange, or, if the Common Stock is not listed or admitted
to trading on such Exchange, on the principal national securities
exchange on which the Common Stock is listed or admitted to
trading, or, if not listed or admitted to trading on any national
securities exchange, then the average of the closing bid and asked
prices of the Common Stock in the over-the-counter market as
reported on NASDAQ or a similar reporting service; and the term
"Trading Day" shall mean a date on which the New York Stock
Exchange (or any Successor to such Exchange) is open for the
transaction of business.
DESIGNATIONS, PREFERENCES AND RIGHTS
OF 8 3/4% SERIES H CUMULATIVE PREFERRED STOCK
1. Designation; Number of Shares; Stated Value.
Five million (5,000,000) shares of Preferred Stock shall be
designated 8 3/4% Series H Cumulative Preferred Stock (hereinafter
sometimes referred to as the "Series H Preferred Stock" or as this
"Series"). Shares of this Series shall have a stated value of
$25.00 per share.
2. Dividends.
(a) The holders of shares of Series H Preferred Stock shall
be entitled to receive cumulative cash dividends, when and as
declared by the Board of Directors out of funds legally available
therefor, at a rate of 8 3/4% per annum of the stated value per
share thereof and no more, before any dividend or distribution in
cash or other property (other than dividends payable in stock
ranking junior to the Series H Preferred Stock as to dividends and
upon liquidation, dissolution or winding-up) on any class or series
of stock of the Corporation ranking junior to the Series H
Preferred Stock as to dividends or upon liquidation, dissolution or
winding-up shall be declared or paid or set apart for payment.
(b) Dividends on the Series H Preferred Stock shall be
payable, when and as declared by the Board of Directors, on January
1, April 1, July 1 and October 1 of each year, commencing January
1, 1992 (each such date being hereinafter individually a "Dividend
Payment Date" and collectively the "Dividend Payment Dates"),
except that if such date is a Saturday, Sunday or legal holiday
then such dividend shall be payable on the first immediately
preceding calendar day which is not a Saturday, Sunday or legal
holiday, to holders of record as they appear on the books of the
Corporation on such respective dates, not exceeding 60 days
preceding such Dividend Payment Date, as may be determined by the
Board of Directors in advance of the payment of each particular
dividend. Dividends in arrears may be declared and paid at any
time, without reference to any regular Dividend Payment Date, to
holders of record on such date as may be fixed by the Board of
Directors of the Corporation. The amount of dividends payable per
share of this Series for each dividend period shall be computed by
dividing by four the 8 3/4% annual rate and multiplying the
resulting rate by $25.00. Dividends payable on this Series for the
initial dividend period and for any period less than a full
quarterly period shall be computed on the basis of a 360-day year
of twelve 30-day months.
(c) Dividends on the Series H Preferred Stock shall be
cumulative and accrue from and after the date of original issuance
thereof, whether or not declared by the Board of Directors.
Accruals of dividends shall not bear interest.
(d) No dividend may be declared on any other class or series
of stock ranking on a parity with the Series H Preferred Stock as
to dividends in respect of any dividend period unless there shall
also be or have been declared on the Series H Preferred Stock like
dividends for all quarterly periods coinciding with or ending
before such quarterly period, ratably in proportion to the
respective annual dividend rates fixed therefor.
3. Redemption.
The Corporation shall have the right to redeem shares of this
Series pursuant to the following provision:
(a) The Corporation shall not have any right to redeem shares
of this Series prior to the fifth anniversary of the date of the
original issuance of shares of this Series. On and after such
fifth anniversary of the date of original issuance, the Corporation
shall have the right, at its sole option and election, to redeem
some or all of the shares of this Series, at any time and from time
to time, at a redemption price of $25.00 per share, plus an amount
equal to all accrued and unpaid dividends and distributions thereon
(such sum being hereinafter referred to as the "redemption price"),
whether or not declared, to the date fixed by the Board for
redemption (the "redemption date").
In the case of the redemption of a part only of the shares of
this Series at the time outstanding, the shares of this Series to
be so redeemed shall be selected by lot, pro rata (as nearly as may
be practicable), or in such other equitable manner as the Board of
Directors may determine.
(b) Notice of any redemption pursuant to this paragraph 3
shall be mailed at least 30, but not more than 60, days in advance
of the redemption date to the holders of record of shares of this
Series so to be redeemed at their respective addresses as the same
shall appear on the books of the Corporation. In order to
facilitate the redemption of shares of this Series, the Board of
Directors may fix a record date for the determination of holders of
shares of this Series to be redeemed not more than 60 days prior to
the redemption date. Each such notice shall state: (1) the
redemption date; (2) the number of shares of this Series to be
redeemed and, if less than all the shares held by such holder are
to be redeemed, the number of such shares to be redeemed from such
holder; (3) the redemption price; (4) the place or places where
certificates for such shares are to be surrendered for payment of
the redemption price; and (5) that dividends on the shares to be
redeemed will cease to accrue on such redemption date. If less
than all the shares represented by any such surrendered certificate
are redeemed, a new certificate shall be issued representing the
unredeemed shares.
(c) The Corporation shall, on or prior to the date fixed for
redemption of any shares, but not earlier than 45 days prior to the
date fixed for redemption, deposit with its transfer agent or other
redemption agent selected by the Board of Directors of the
Corporation, as a trust fund, a sum sufficient to redeem the shares
called for redemption, with irrevocable instructions and authority
to such transfer agent or other redemption agent to give or
complete the notice of redemption thereof and to pay to the
respective holders of such shares, as evidenced by a list of such
holders certified by an officer of the Corporation, the redemption
price upon surrender of their respective share certificates. Such
deposit shall be deemed to constitute full payment of such shares
to their holders; and from and after the date of such deposit,
notwithstanding that any certificates for such shares shall not
have been surrendered for cancellation, the shares represented
thereby shall no longer be deemed outstanding, the rights to
receive dividends and distributions shall cease to accrue from and
after the redemption date, and all rights of the holders of the
shares of Series H Preferred Stock called for redemption, as
stockholders of the Corporation with respect to such shares, shall
cease and terminate, except the right to receive the redemption
price, without interest, upon the surrender of their respective
certificates. In case the holders of any shares shall not, within
six years after such deposit, claim the amount deposited for
redemption thereof, such transfer agent or other redemption agent
shall, upon demand, pay over to the Corporation the balance of such
amount so deposited. Thereupon, such transfer agent or other
redemption agent shall be relieved of all responsibility to the
holders thereof and the sole right of such holders shall be as
general creditors of the Corporation. Any interest accrued on any
funds so deposited shall belong to the Corporation, and shall be
paid to it from time to time on demand.
4. Voting.
The shares of this Series shall not have any voting powers
either general or special, except as set forth in this Certificate
of Designations, Preferences and Rights, in the Corporation's
Restated Certificate of Incorporation, or as otherwise provided by
law.
5. Liquidation Rights.
Upon the dissolution, liquidation or winding-up of the
Corporation, whether voluntary or involuntary, the holders of the
shares of this Series shall be entitled to receive, before any
payment or distribution of the assets of the Corporation or
proceeds thereof (whether capital or surplus) shall be made to or
set apart for the holders of the Common Stock, Class B Common Stock
or any other class or series of stock ranking junior to the shares
of this Series upon liquidation, the amount of $25.00 per share,
plus a sum equal to all dividends on such shares (whether or not
earned or declared) accrued and unpaid thereon to the date of final
distribution, but such holders shall not be entitled to any further
payment. If, upon any liquidation, dissolution or winding-up of
the Corporation, the assets of the Corporation, or proceeds
thereof, distributable among the holders of shares of the Series H
Preferred Stock and any other class or series of Preferred Stock
ranking on a parity with the Series H Preferred Stock as to
payments upon liquidation, dissolution or winding-up shall be
insufficient to pay in full the preferential amount aforesaid, then
such assets or the proceeds thereof, shall be distributed among
such holders ratably in accordance with the respective amounts
which would be payable on such shares if all amounts payable
thereon were paid in full. For the purposes of this paragraph 5,
the voluntary sale, conveyance, lease, exchange or transfer (for
cash, shares of stock, securities or other consideration) of all or
substantially all the property or assets of the Corporation to, or
a consolidation or merger of the Corporation with, one or more
other corporations (whether or not the Corporation is the
corporation surviving such consolidation or merger) shall not be
deemed to be a liquidation, dissolution or winding-up, voluntary or
involuntary.
6. No Purchase, Retirement or Sinking Fund.
The shares of this Series shall not be subject to the
operation of any purchase, retirement or sinking fund.
7. Status.
Shares of this Series which have been issued and reacquired in
any manner by the Corporation (excluding, until the Corporation
elects to retire them, shares which are held as treasury shares,
but including shares redeemed, and shares purchased and retired)
shall, upon compliance with any applicable provisions of the
General Corporation Law of the State of Delaware, have the status
of authorized and unissued shares of Preferred Stock and may be
reissued as a part of this Series or as part of a new series of
Preferred Stock to be established by the Board of Directors or as
part of any other series of Preferred Stock the terms of which do
not prohibit such reissue.
8. Priority.
The Series B, D, E, G and G-2 Preferred Stock of the
Corporation as presently designated and heretofore authorized by
the Board of Directors of the Corporation shall rank on a parity
with, and the Common Stock (including Class B Common Stock) of the
Corporation shall rank junior to, the Series H Preferred Stock as
to dividends and upon liquidation.
9. Special Rights on Default.
(a) If at any time the Corporation shall have failed to pay
dividends in full on the Series H Preferred Stock, thereafter and
until dividends in full, including all accumulated and unpaid
dividends to the next preceding Dividend Payment Date on the Series
H Preferred Stock outstanding, shall have been declared and set
apart for payment or paid: (i) the Corporation shall not redeem
less than all the Series H Preferred Stock at such time
outstanding, and (ii) neither the Corporation nor any subsidiary
shall purchase or otherwise acquire any Series H Preferred Stock
except in accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors) to all
holders of Series H Preferred Stock upon such terms as the Board of
Directors in their sole discretion, after consideration of the
annual dividend rate and other rights and preferences of this
Series, shall determine (which determination shall be final and
conclusive) will result in fair and equitable treatment to all
stockholders of the Corporation, provided that nothing shall
prevent the Corporation from completing the purchase or redemption
of shares of Series H Preferred Stock for which a purchase contract
was entered into, or notice of redemption of which was initially
given, prior to such default.
(b) Whenever, at any time or times, dividends payable on the
shares of this Series shall be in arrears in an amount equal to at
least six full quarterly dividends, whether or not consecutive, on
the shares of this Series at the time outstanding, the holders of
the outstanding shares of this Series shall have the right, voting
separately as a class with holders of shares of any one or more
other series of Preferred Stock ranking on a parity with this
Series either as to dividends or the distribution of assets upon
liquidation, dissolution or winding-up and upon which like voting
rights have been conferred and are exercisable (collectively, this
Series and such other series of Preferred Stock, the "Voting
Preferred Class"), to elect two directors of the Corporation at the
Corporation's next annual meeting of stockholders and at each
subsequent annual meeting of stockholders. At elections for such
directors, the presence, in person or by proxy, of the holders of
a majority of the outstanding shares of the Voting Preferred Class
shall be required and be sufficient to constitute a quorum of such
class for the election of such directors. At elections for such
directors or adjournments thereof, (1) the absence of a quorum of
the Voting Preferred Class shall not prevent the election of the
directors to be elected otherwise than pursuant to this
subparagraph (b), and the absence of a quorum of stock other than
the Voting Preferred Class shall not prevent the election of the
directors to be elected pursuant to this subparagraph (b), and (2)
in the absence of such quorum either of the Voting Preferred Class
or of the stock other than the Voting Preferred Class, or both, a
majority of the holders, present in person or by proxy, of the
class or classes of stock which lack a quorum shall have the power
to adjourn the meeting for the election of directors whom they are
entitled to elect, from time to time without notice other than
announcement at the meeting, until a quorum shall be present. At
elections for such directors, each holder of this Series shall be
entitled to one vote for each share held (the holders of shares of
any other series included in the Voting Preferred Class being
entitled to such number of votes, if any, for each share of stock
held as may be granted to them). Upon the vesting of such right of
the holders of this Series, the maximum authorized number of
members of the Board of Directors shall automatically be increased
by two and the two vacancies so created shall be filled by vote of
the holders of the outstanding shares of this Series (together with
the holders of shares of any one or more other series of Preferred
Stock included in the Voting Preferred Class) as hereinafter set
forth. The right of the holders of this Series, voting separately
as a class to elect (together with the holders of shares of any one
or more other series of Preferred Stock included in the Voting
Preferred Class) members of the Board of Directors of the
Corporation as aforesaid shall continue until such time as all
dividends in arrears on this Series shall have been paid in full,
at which time such right shall immediately terminate, except as
herein or by law expressly provided, subject to re-vesting in the
event of each and every subsequent default of the character above
mentioned.
Each director elected by the holders of shares of this Series
shall continue to serve as such director until such time as all
dividends in arrears on this Series shall have been paid in full,
at which time the term of office of all persons elected as
directors by the holders of shares of this Series shall immediately
terminate and the number of members of the Board of Directors of
the Corporation shall be reduced accordingly. If the office of any
director elected by the holders of this Series voting as a class
becomes vacant by reason of death, resignation, retirement,
disqualification, removal from office, or otherwise, the remaining
director elected by the holders of this Series voting as a class
may choose a successor who shall hold office for the unexpired term
in respect of which such vacancy occurred. Whenever the term of
office of the directors elected by the holders of this Series
voting as a class shall end and the special voting powers vested in
the holders of this Series as provided in this subparagraph (b)
shall have expired, the number of directors shall be such number as
may be provided for in the By-Laws irrespective of any increase
made pursuant to the provisions of this subparagraph (b).
10. Relative Rights of Series H Preferred Stock.
So long as any of the Series H Preferred Stock is outstanding,
the Corporation will not:
(a) Declare, or pay, or set apart for payment, any dividends
(other than dividends payable in stock ranking junior to the Series
H Preferred Stock as to dividends and upon liquidation, dissolution
or winding-up) or make any distribution in cash or other property
on any other class or series of stock of the Corporation ranking
junior to the Series H Preferred Stock either as to dividends or
upon liquidation, dissolution or winding-up and will not redeem,
purchase or otherwise acquire any shares of any such junior class
or series if at the time of making such declaration, payment,
distribution, redemption, purchase or acquisition the Corporation
shall be in default with respect to any dividend payable on, or any
obligation to retire shares of, Series H Preferred Stock; and
(b) Without the affirmative vote or consent of the holders of
at least 66-2/3% of all the Series H Preferred Stock at the time
outstanding, given in person or by proxy, either in writing or by
resolution adopted either at an annual meeting or special meeting
called for the purpose, the holders of this Series consenting or
voting separately as a class, (i) authorize, create, or issue, or
increase the authorized or issued amount, of any class or series of
stock ranking prior to the Series H Preferred Stock, either as to
dividends or upon liquidation, dissolution or winding-up or (ii)
amend, alter or repeal (whether by merger, consolidation or
otherwise) any of the provisions of the Corporation's Restated
Certificate of Incorporation, or of the Certificate of
Designations, Preferences and Rights of the Series H Preferred
Stock, so as to materially and adversely affect the preferences,
special rights, privileges or powers of the Series H Preferred
Stock; provided, however, that any increase in the authorized
Preferred Stock or the creation and issuance of other series of
Preferred Stock ranking on a parity with or junior to the Series H
Preferred Stock shall not be deemed to materially and adversely
affect such preferences, rights, privileges or powers.
FIFTH: The number of directors of the Corporation shall be fixed
from time to time by, or in the manner provided in, its
by-laws and may be increased or decreased as therein
provided, but in no event shall the number of directors
of the Corporation be less than five nor more than
eighteen. The directors shall be classified with respect
to the time for which they shall severally hold office by
dividing them as equally as the total number of directors
will permit into three classes, and all directors shall
hold office until their successors are elected and
qualified. The term of service of each class of
directors shall be three years or until the third annual
meeting of the shareholders following the election of the
class. The terms of service of each class of directors
shall expire in successive years. At each annual meeting
of the shareholders, successors to the class of directors
whose terms then expire shall be elected to serve for the
full term of three years or until the third annual
meeting of shareholders following their election.
For purposes of the annual meeting of shareholders to be
held in 1978, the current classification of directors
shall continue and only that class of directors whose
term expires at that meeting shall be elected. At each
succeeding annual meeting of shareholders,the
shareholders shall elect directors only of the class
whose terms then expire.
SIXTH: The Corporation is to have perpetual existence.
SEVENTH: The private property of the stockholders shall not be
subject to the payment of corporate debts to any extent
whatsoever.
EIGHTH: In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly
authorized, subject to the protective conditions or
restrictions of any outstanding series of Preferred Stock
fixed by the Board of Directors pursuant to the authority
conferred upon the Board of Directors by Article Fourth
of this Certificate of Incorporation and Section 151 of
Title 8 of the Delaware Code:
1. To make, alter or repeal the By-laws of the
Corporation.
2. To authorize and cause to be executed mortgages
and liens on the real and personal property of
the Corporation.
3. To set apart out of any of the funds of the
Corporation available for dividends a reserve
or reserves for any proper purpose and to
abolish any such reserve in the manner in which
it was created.
4. By a majority of the whole Board, to designate
one or more committees, each committee to
consist of two or more of the Directors of the
Corporation. The Board may designate one or
more Directors as alternate members of any
committee, who may replace any absent or
disqualified member at any meeting of the
committee. Any such committee, to the extent
provided in the resolution or in the By-laws of
the Corporation, shall have and may exercise
the powers of the Board of Directors in the
management of the business and affairs of the
Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which
may require it; provided, however, the By-laws
may provide that in the absence or
disqualification of any member of such
committee or committees the member or members
thereof present at any meeting and not
disqualified from voting, whether or not he or
they constitute a quorum, may unanimously
appoint another member of the Board of
Directors to act at the meeting in the place of
any such absent or disqualified member.
5. Subject to the provisions of Article Fourteenth
of this Certificate of Incorporation, when and
as authorized by the affirmative vote of the
holders of a majority of the stock issued and
outstanding having voting power given at a
stockholders meeting duly called upon such
notice as is required by statute, or when
authorized by the written consent of the
holders of a majority of the voting stock
issued and outstanding, to sell, lease or
exchange all or substantially all of the
property and assets of the Corporation,
including its goodwill and its corporate
franchises, upon such terms and conditions
and for such consideration, which may consist
in whole or in part of money or property
including shares of stock in, and/or other
securities of any other corporation or
corporations, as its Board of Directors shall
deem expedient and for the best interests of
the Corporation.
NINTH: Whenever a compromise or arrangement is proposed between
this Corporation and its creditors or any class of them
and/or between this Corporation and its stockholders or
any class of them, any court of equitable jurisdiction
within the State of Delaware may on the application in a
summary way of this Corporation or of any creditor or
stockholder thereof or on the application of any receiver
or receivers appointed for this Corporation under the
provisions of Section 291 of Title 8 of the Delaware Code
or on the application of trustees in dissolution or of
any receiver or receivers appointed for this Corporation
under the provisions of Section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class
of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, to
be summoned in such manner as the said court directs. If
a majority in number representing three-fourths in value
of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise
or arrangement and to any reorganization of this
Corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the
said reorganization shall, if sanctioned by the court to
which the said application has been made, the binding on
all the creditors or class of creditors, and/or on all
the stockholders or class of stockholders, of this
Corporation, as the case may be, and also on this
Corporation.
TENTH: Meetings of stockholders and of the Board of Directors
may be held within or without the State of Delaware, as
the By-laws may provide. The books of the Corporation
may be kept (subject to any provision contained in the
statutes) outside the State of Delaware at such place or
places as may be designated from time to time by the
Board of Directors or in the By-laws of the Corporation.
Elections of Directors need not be by written ballot
unless the By-laws of the Corporation shall so provide.
ELEVENTH: The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this
Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred
upon stockholders herein are granted subject to this
reservation.
TWELFTH: 1. No contract or transaction between the Corporation
and one or more of its Directors or officers, or
between the Corporation and any other corporation,
partnership, association or other organization in
which one or more of its Directors or officers are
directors or officers, or have a financial interest,
shall be void or voidable solely for this reason, or
solely because the Director or officer is present at
or participates in the meeting of the Board or
committee thereof which authorizes the contract or
transaction, or solely because his or their votes
are counted for such purpose, if:
(a) The material facts as to his interest and as to the
contract or transaction are disclosed or are known
to the Board of Directors or the committee, and the
Board or committee in good faith authorizes the
contract or transaction by a vote sufficient for
such purpose without counting the vote of the
interested Director or Directors; or
(b) The material facts as to his interest and as to the
contract or transaction are disclosed or are known
to the stockholders entitled to vote thereon, and
the contract or transaction is specifically approved
in good faith by vote of the stockholders; or
(c) The contract or transaction is fair as to the
Corporation as of the time it is authorized,
approved or ratified, by the Board of Directors, a
committee thereof, or the stockholders.
Common or interested Directors may be counted in
determining the presence of a quorum at a meeting of the
Board of Directors or of a committee which authorizes the
contract or transaction.
THIRTEENTH: 1. The Corporation shall indemnify any person who was
or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the
right of the Corporation) by reason of the fact that
he is or was a director, officer, employee or agent
of the Corporation, or is or was serving at the
request of the Corporation as a director, officer,
employee or agent of another corporation,
partnership, joint venture, trust or other
enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him
in connection with such action, suit or proceeding
if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the
best interests of the Corporation, and, with respect
to any criminal action or proceeding, had no
reasonable cause to believe this conduct was
unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere
or its equivalent, shall not, of itself, create a
presumption that the person did not act in good
faith and in a manner which he reasonably believed
to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal
action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
2. The Corporation shall indemnify any person who was
or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit
by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he
is or was a Director, officer, employee or agent of
the Corporation, or is or was serving at the request
of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses
(including attorneys' fees) and amounts paid in
settlement actually and reasonably incurred by
him/her in connection with the defense or
settlement of such action or suit if he/she acted in
good faith and in a manner he/she reasonably
believed to be in or not opposed to the best
interests of the Corporation and except that no such
indemnification shall be made in respect to any
claim, issue or matter as to which such person shall
have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of
Chancery of Delaware or the court in which such
action or suit was brought shall determine upon
application that, despite the adjudication of
liability but in view of all the circumstances of
the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the
Court of Chancery or such other court shall deem
proper.
3. To the extent that any person referred to in
paragraphs 1 and 2 of this Article Thirteenth has
been successful on the merits or otherwise in
defense of any action, suit or proceeding referred
to therein or in defense of any claim, issue or
matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
4. Any indemnification under paragraphs 1 and 2 of
this Article Thirteenth, (unless ordered by a court)
shall be made by the Corporation only as authorized
in the specific case upon a determination that
indemnification of the Director, officer, employee
or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth
in paragraphs 1 and 2 of this Article Thirteenth.
Such determination shall be made (a) by the Board of
Directors by a majority vote of a quorum (as defined
in the By-laws of the Corporation) consisting of
Directors who were not parties to such action, suit
or proceeding, or (b) if such quorum is not
obtainable, or, even if obtainable a quorum of
disinterested Directors so directs, by independent
legal counsel in a written opinion, or (c) by the
stockholders.
5. Expenses incurred in defending a civil or criminal
action, suit or proceeding may be paid by the
Corporation in advance of the final disposition of
such action, suit or proceeding in the manner
provided in paragraph 4 of this Article Thirteenth
upon receipt of an undertaking by or on behalf of
the Director, officer, employee or agent to repay
such amount if it shall ultimately be determined
that he/she is not entitled to be indemnified by the
Corporation as authorized in this Article
Thirteenth.
6. The indemnification and advancement of expenses
provided by, or granted pursuant to other section of
this Article Thirteenth shall not be deemed
exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be
entitled under any statute, by-law, agreement, vote
of stockholders or disinterested Directors or
otherwise, both as to action in his official
capacity and as to action in another capacity while
holding such office.
7. The Corporation shall have power to purchase and
maintain insurance on behalf of any person who is or
was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint
venture, trust or other enterprise, against any
liability asserted against him and incurred by him
in any such capacity, or arising out of his status
as such, whether or not the Corporation would have
the power to indemnify him against such liability
under the provisions of this Article Thirteenth.
8. The indemnification and advancement of expenses
provided by, or granted pursuant to, this Article
Thirteenth shall, unless otherwise provided when
authorized or ratified, continue as to a person who
has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs,
executors and administrators of such a person. Any
repeal or modification of this Article Thirteenth
shall not adversely affect any right to
indemnification or advancement of expenses of any
present or former director, officer, employee or
agent of the Corporation existing at the time of
such repeal or modification.
9. For purposes of this Article Thirteenth, references
to the "Corporation" shall include, in addition to
the resulting corporation, any constituent
corporation (including any constituent of a
constituent) absorbed in a consolidation or merger
which, if its separate existence had continued,
would have had power and authority to indemnify its
directors, officers, and employees or agents, so
that any person who is or was a director, officer,
employee or agent of such constituent corporation,
or is or was serving at the request of such
constituent corporation as a director, officer,
employee or agent of another corporation,
partnership, joint venture, trust or other
enterprise, shall stand in the same position under
the provisions of this Article Thirteenth, with
respect to the resulting or surviving corporation as
he would have with respect to such constituent
corporation if its separate existence had continued.
10. For purposes of this Article Thirteenth, references
to "other enterprises" shall include employee
benefit plans; references to "fines" shall include
any excise taxes assessed on a person with respect
to any employee benefit plan; and references to
"serving at the request of the Corporation" shall
include any service as a director, officer, employee
or agent of the Corporation which imposes duties on,
or involves services by, such director, officer,
employee or agent with respect to an employee
benefit plan, its participants or beneficiaries; and
a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the
participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the
Corporation" as referred to in this Article
Thirteenth.
11. If this Article Thirteenth or any portion hereof is
invalidated by any court of competent jurisdiction,
then the corporation shall nevertheless provide such
indemnification and advancement of expenses as would
otherwise be permitted under any portion of this
Article Thirteenth that shall not have been
invalidated.
FOURTEENTH: A. Except as set forth in paragraph B. of this Article
Fourteenth, the affirmative vote or consent of the
holders of 80% of the outstanding shares of all
classes of stock of the Corporation entitled to vote
in elections of directors, considered for the
purposes of this Article Fourteenth as one class,
shall be required:
(i) for the adoption of any agreement for the
merger or consolidation of the Corporation
with or into any Other Corporation (as
hereinafter defined), or
(ii) to authorize any sale, lease, exchange,
mortgage, pledge or other disposition of
all, or substantially all, or any
Substantial Part (as hereinafter defined)
of the assets of the Corporation or any
Subsidiary (as hereinafter defined) to any
Other Corporation, or
(iii) to authorize the issuance or transfer by
the Corporation of any Substantial Amount
(as hereinafter defined) of securities of
the Corporation in exchange for the
securities or assets of any Other
Corporation
if, in any such case, as of the record date for the
determination of stockholders entitled to notice
thereof and to vote thereon or consent thereto such
Other Corporation is the Beneficial Owner (as
hereinafter defined) of more than 10% of the
outstanding shares of stock of the Corporation
entitled to vote in elections of directors
considered for the purposes of this Article
Fourteenth as one class. Such affirmative vote or
consent shall be in addition to the vote or consent
of the holders of the stock of the Corporation
otherwise required by law, this Certificate of
Incorporation or any agreement or contract to which
the Corporation is a party.
B. The provisions of paragraph A. of this Article
Fourteenth shall not be applicable to any
transaction described therein if such transaction is
approved by resolution of the Board of Directors of
the Corporation, provided that (a) a majority of the
members of the Board of Directors voting for the
approval of such transaction were duly elected and
acting members of the Board of Directors prior to
the time such Other Corporation shall have become a
Beneficial Owner of more than 10% of the shares of
stock of the Corporation entitled to vote in
elections of directors; or (b) such transaction is
approved by resolution unanimously adopted by the
whole Board of Directors of the Corporation at any
time prior to the consummation thereof.
C. The Board of Directors shall have the power and duty
to determine for the purposes of this Article
Fourteenth, on the basis of information known to
such Board, if and when any Other Corporation is the
Beneficial Owner of more than 10% of the outstanding
shares of stock of the Corporation entitled to vote
in elections of directors, and any such
determination shall be conclusive and binding for
all purposes of this Article Fourteenth.
D. As used in Article Fourteenth, the following terms
have the meanings as set forth below:
"Other Corporation" means any person, firm,
corporation or other entity, other than a
subsidiary of the Corporation.
"Substantial Part" means any assets having
a then fair market value, in the aggregate,
of more than $5,000,000.
"Subsidiary" means any corporation in which
the Corporation owns, directly or indirectly, more
than 50% of the voting securities.
"Substantial Amount" means any securities of
the Corporation having a then fair market value of
more than $5,000,000.
"Beneficial Owner" of stock means a person, or an
affiliate or "associate" of such person (as such
terms are defined in Rule 12b-2 of the General Rules
and Regulations under the Securities Exchange Act of
1934 as in effect on February 1, 1978), who directly
or indirectly controls the voting of such stock, or
who has any option, warrants, conversion or other
rights to acquire such stock.
FIFTEENTH:In addition to any separate class vote, if any, which
may be required by law, the affirmative vote of the
holders of 80% of the outstanding shares of all classes
of stock of the Corporation entitled to vote in the
election of directors, such outstanding shares of stock
to be considered as one class, shall be required in order
to amend or repeal any of the provisions of Article
Fourteenth or subsection 5 of Article Eighth of the
Certificate of Incorporation. The affirmative vote of
the holders of 66-2/3% of the outstanding shares of all
classes of stock of the Corporation entitled to vote in
the election of directors, such outstanding shares of
stock to be considered as one class, shall be required in
order to amend or repeal any of the provisions of Article
Fifth of the Certificate of Incorporation. The same
respective stockholder vote requirements prescribed by
the foregoing provisions of this Article Fifteenth shall
also be required, respectively, in order to amend or
repeal the respective foregoing provisions of this
Article Fifteenth prescribing such stockholder vote
requirement.
SIXTEENTH: (a) The provisions of this Article Sixteenth shall apply
independently of any other provision of this Certificate
of Incorporation if any Other Corporation (as
hereinafter defined) seeks to accomplish a Business
Combination (as hereinafter defined) within the ten year
period following the date the Other Corporation became
an Acquiring Entity (as hereinafter defined).
(b) (1) As used in Article Sixteenth, the following
terms shall have the meanings as set forth below:
"Acquiring Entity" means any Other
Corporation which is, and for fewer than ten
years has been, the Beneficial Owner of more
than 10% of the outstanding shares of stock
of the Corporation entitled to vote in
elections of directors, considered for the
purposes of this paragraph as one class.
"Affiliate" or "Associate" of a person have
the same meaning as is assigned to such
terms under Rule 12b-2 of the General Rules
and Regulations (the "Regulations") under
the Securities Exchange Act of 1934 as in
effect on March 1, 1983.
"Beneficial Owner" of stock means a person,
or an Affiliate or Associate of such person,
who is a "beneficial owner" of stock, as
such term is defined under Rule 13d-3 of the
Regulations as in effect on March 1, 1983,
except that, without limitation, any shares
of voting stock of the Corporation that any
Acquiring Entity, or any Affiliate or
Associate of such Acquiring Entity, has the
right to acquire pursuant to any agreement,
or upon exercise of conversion rights,
warrants or options, or otherwise, shall be
deemed beneficially owned by the Acquiring
Entity.
"Business Combination" means any transaction
described in part A. of Article Fourteenth.
"Continuing Director" means a director duly
elected to the Board of Directors prior to
the time the Other Corporation became an
Acquiring Entity, and the term "Outside
Director" shall mean a director who is not
(a) an officer or employee of the
Corporation or any relative of an officer or
employer or (b) an Acquiring Entity, or an
officer, director, employee, Affiliate or
Associate of an Acquiring Entity, or a
relative of any of the foregoing.
"Other Corporation" shall have the same
meaning as set forth in part D. of Article
Fourteenth.
(2) For the purposes of this Article Sixteenth, the
Board of Directors shall have the power and duty to
determine, on the basis of information known to such
Board, if and when any Other Corporation is or has
become an Acquiring Entity. Any such determination
shall be conclusive and binding for all purposes of
this Article Sixteenth.
(c) Except as set forth in part (d) of this Article
Sixteenth, the affirmative vote of the holders of
66-2/3% of all classes of stock of the Corporation
entitled to vote in elections of directors,
considered for this purpose as one class, excluding
stock of which the Acquiring Entity is the
Beneficial Owner, shall be required for approval of
any Business Combination with an Other Corporation
unless all of the following conditions are
fulfilled.
(1) The cash or fair market value or other consideration
to be received per share by common stockholders of
the Corporation in such Business Combination will
not, at the time the Business Combination is
effected, be less than the greater of:
(A) the highest per share price (including
brokerage commissions and/or soliciting
dealers' fees) paid by the Acquiring
Entity in acquiring any of it holdings of
the Corporation's Common Stock; or
(B) an amount bearing a percentage
relationship to the market price of the
Corporation's Common Stock immediately
prior to the public announcement of such
Business Combination equal to the highest
percentage relationship that any per share
price (including brokerage commissions
and/or soliciting dealers' fees)
theretofore paid by the Acquiring Entity
for any of its holdings of the
Corporation's Common Stock bore to the
market price of such Common Stock
immediately prior to the transaction
resulting in the acquisition of such
Common Stock; or
(C) the book value of the Corporation's Common
Stock as of the end of the most recent
calendar quarter determined in accordance
with generally accepted accounting
principles; or
(D) an amount calculated by multiplying the
earnings per share of the Corporation's
Common Stock for the four fiscal quarters
immediately preceding the record date for
determination of stockholders entitled to
vote on such Business Combination by the
then price earnings multiple of the
Acquiring Entity as customarily computed
and reported in the financial press.
Appropriate adjustments shall be made with
respect to (A), (B), (C) and (D) above for
recapitalization and for stock splits, stock
dividends, and like distributions. For
purposes of subparagraph (c)(1) of this Article
Sixteenth, the term "other consideration to be
received" shall include, without limitation,
capital stock of this Corporation retained by
its existing public stockholders in the event
of a Business Combination in which this
Corporation is the surviving corporation.
(2) After the Other Corporation has become an Acquiring
Entity:
(A) the Corporation's Board of Directors shall
have included at all times representation
by one or more Continuing Directors unless
the lack of such representation results
entirely from either death or normal
retirement under retirement policies in
effect prior to the time the Other
Corporation became an Acquiring Entity;
and
(B) there shall have been no reduction in the
rate of dividends payable on the
Corporation's Common Stock except as
required by law or as may be necessary to
insure that the Corporation is not in
breach of any covenant in any of its
agreements for borrowed money, or except
as may have been approved by a majority
vote of the Continuing Directors; and
(C) such Acquiring Entity shall not have
acquired any newly issued shares of stock,
directly or indirectly, from the
Corporation (except upon conversion of
convertible securities acquired by it
prior to becoming an Acquiring Entity or
as a result of a pro rate stock dividend
or stock split, or except with the
approval of a majority vote of the
Continuing Directors).
(3) Without the approval of a majority vote of the
Continuing Directors, such Acquiring Entity
shall not have (i) received the benefit
directly or indirectly (except proportionately
as a stockholder) of any loans, advances,
guarantees, pledges or other financial
assistance provided by the Corporation, or
(ii) made any major change in the Corporation's
business or equity capital structure.
(4) A timely mailing shall have been made to the
stockholders of this Corporation containing in
a prominent place (i) any recommendations as to
the advisability (or inadvisability) of the
Business Combination that the Continuing
Directors or Outside Directors may choose to
state, if there are at the time any such
directors, and (ii) the opinion of a
reputable nationally recognized investment
banking or financial services firm as to the
fairness (or not) of the terms of the Business
Combination, from the point of view of the
stockholders of this Corporation other than the
Acquiring Entity (such firm to be engaged
solely on behalf of such other stockholders, to
be paid a reasonable fee for its services by
this Corporation upon receipt of such opinion,
to be a firm that has not previously been
significantly associated with the Acquiring
Entity and, if there are at the time any such
directors, to be selected by a majority of the
Continuing Directors and Outside Directors).
(d) The provisions of part (c) of this Article
Sixteenth shall not be applicable to any Business
Combination if: (i) such transaction is approved by
resolution unanimously adopted by the whole Board
of Directors of the Corporation at any time prior
to the consummation thereof; or (ii) the Business
Combination is solely between this Corporation and
another corporation, 50% or more of the voting
stock of which is owned by this Corporation and
none of which is owned by the Acquiring Entity;
provided that if this Corporation is not the
surviving entity, each stockholder of this
Corporation receives the same type of consideration
in such transaction in proportion to his stock
holdings and the provisions of this Article
Sixteenth of the Corporation's Certificate of
Incorporation are continued in effect or adopted by
such surviving corporation as part of its articles
of incorporation or certificate of incorporation,
as the case may be, without any charge.
(e) In connection with a proposed Business Combination,
the Continuing Directors may retain special outside
legal counsel, an investment banking firm, an
accounting firm, and such other experts that they,
in their discretion, may deem necessary or
appropriate to assist them in their evaluation of
the transaction, all at the expense of the
Corporation.
(f) In addition to any other provision of this
Certificate of Incorporation, there shall be
required to amend, alter, change or repeal any of
the provisions of this Article Sixteenth the
affirmative vote of the holders of 66-2/3% of all
classes of stock of the Corporation entitled to
vote in elections of directors, considered
for this purpose as one class, excluding stock of
which an Acquiring entity, if any, is the
Beneficial Owner.
(g) Nothing contained in this Article Sixteenth shall
be construed to relieve an Acquiring Entity from
any fiduciary obligation imposed by law. The
conditions and voting requirements of this Article
Sixteenth shall be in addition to the conditions
and voting requirements imposed by law or other
provisions of this Certificate of Incorporation,
including, without limitation, Article Fourteenth.
SEVENTEENTH: No director of the Corporation shall be personally
liable to the Corporation or its shareholders for
monetary damages for any breach of fiduciary duty as
a director; provided, however, that this Article
Seventeenth shall not eliminate or limit the liability
of a director (1) for any breach of the director's
duty of loyalty to the Corporation or its share-
holders, (2) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing
violation of law, (3) under Section 174 of the General
Corporation Law of the State of Delaware, or (4) for
any transaction from which the director derived an
improper personal benefit. If the General Corporation
Law of the State of Delaware is amended after
approval by the shareholders of the Corporation of
this provision to authorize corporate action further
eliminating or limiting the personal liability of
directors, then the liability of a director of the
Corporation shall be eliminated or limited to the
fullest extent permitted by the General Corporation
Law of the State of Delaware, as so amended.
Any repeal or modification of the foregoing paragraph
by the shareholders of the Corporation shall not
adversely affect any right or protection of a director
of the Corporation existing at the time of such repeal
or modification.
IN WITNESS WHEREOF, said Old Republic International
Corporation has caused this Restated Certificate of Incorporation
to be signed and executed by its President and attested by its
Secretary.
OLD REPUBLIC INTERNATIONAL CORPORATION
By:______/s/ Aldo C. Zucaro_____________
President
Attest:
__/s/ Spencer_LeRoy III__
Secretary
(Corporate Seal)