Exhibit 3-a
CERTIFICATE OF INCORPORATION
(Restated)
OF
UNITED BRANDS COMPANY
UNITED BRANDS COMPANY, a corporation organized and existing
under the laws of the State of New Jersey, restates and
integrates its Certificate of Incorporation to read in full as
herein set forth.
SECTION I
The name of the Corporation is UNITED BRANDS COMPANY.
SECTION II
The location of its registered office in the State of
New Jersey is 15 Exchange Place, Jersey City, county of Hudson
(07302), and the name of the registered agent therein and in
charge thereof upon whom process against the Corporation may be
served is The Corporation Trust Company.
SECTION III
The purposes for which the Corporation is organized are to
engage in any activity within the purposes for which corporations
now or at any time hereafter may be organized under the
New Jersey Business Corporation Act and under all amendments and
supplements thereto, or any act enacted to take the place
thereof, including without limiting the generality of the
foregoing:
To engage in such activities directly or through a
subsidiary or subsidiaries, and to take all acts deemed
appropriate to promote the interest of such subsidiary or
subsidiaries, including without limiting the generality of the
foregoing, to make contracts and incur liabilities for the
benefit of such subsidiary or subsidiaries; to transfer or cause
to be transferred to any such subsidiary or subsidiaries assets
of the Corporation; and to guarantee the bonds, debentures, notes
or other evidences of indebtedness issued by or obligations
incurred by such subsidiary or subsidiaries and secure the same
by mortgage or security interest in the property of the
Corporation; and to contract that said bonds, debentures, notes
or other evidences of indebtedness issued by such subsidiary or
subsidiaries may be convertible into stock of the Corporation
upon such terms and conditions as may be approved by the Board of
Directors; and to exercise as a purpose or purposes each power
granted to corporations by the New Jersey Business Corporation
Act and any amendment or supplement thereto or any corporation
act enacted to take the place thereof, insofar as such powers
authorize or may hereafter authorize corporations to engage in
activities; and to guarantee the obligations of any corporation,
partnership, limited partnership, joint venture, or other
association in which the Corporation, pursuant to powers granted
by any such act, has or hereafter may acquire a substantial
interest.
SECTION IV
The aggregate number of shares which the Corporation is
authorized to issue is 49,046,028 shares divided into
(i) 45,000,000 shares of Capital Stock, par value $1 per share
("Capital Stock"), (ii) 46,028 shares of $3.00 Cumulative
Preferred Stock (Convertible Prior to July 1, 1987), without
nominal or par value ("$3.00 Convertible Preferred Stock"),
having the designations, preferences, rights and restrictions set
forth in Subsection A and (iii) 4,000,000 shares of Cumulative
Preference Stock issuable in series, without nominal or par value
("Series Preference Stock"). The designations, preferences,
rights and restrictions, to the extent that the same have been
determined, and the manner of determining other designations,
preferences, rights and restrictions of each series of Series
Preference Stock are set forth in this Section IV.
SUBSECTION A. PROVISIONS APPLICABLE TO $3.00
CONVERTIBLE PREFERRED STOCK
(a) Dividends. The holders of $3.00 Convertible Preferred
Stock, in preference to the holders of Series Preference Stock
and of Capital Stock of the Corporation, shall be entitled to
receive, as and when declared by the Board of Directors,
dividends at the rate of $3.00 per share per annum and no more,
payable quarterly on the last days of March, June, September and
December in each year, commencing on the last day of the
quarterly dividend period in which dividends on such shares
commence to accrue. Such preferential dividends shall accrue,
with respect to shares of $3.00 Convertible Preferred Stock
issued in exchange for shares of $3.00 Convertible Preferred
Stock of AMK Corporation ("AMK") pursuant to the Plan and
Agreement of Merger between AMK and United Fruit Company
("United"), dated as of May 15, 1970 (the "Agreement of Merger")
from the beginning of the quarterly dividend period which
immediately precedes the day on which the merger provided for in
the Agreement of Merger becomes effective (the "Effective Date"),
and shall be cumulative so that if dividends in respect of any
quarterly dividend period at the rate of $3.00 per share per
annum shall not have been paid upon or declared and set apart for
the $3.00 Convertible Preferred Stock, the deficiency shall be
fully paid or declared and set apart before any dividend shall be
paid upon or declared and set apart for the Series Preference
Stock or for the Capital Stock. Preferential dividends on the
$3.00 Convertible Preferred Stock shall be deemed to accrue from
day to day. A quarterly dividend period shall begin on the day
following each dividend payment date set forth above and end on
the next succeeding dividend payment date.
(b) Liquidation. The $3.00 Convertible Preferred Stock
shall be preferred as to assets over the Series Preference Stock
and over the Capital Stock, so that in the event of the
liquidation, dissolution or winding up of the Corporation, the
holders of $3.00 Convertible Preferred Stock shall be entitled to
have set apart for them, or to be paid, out of the assets of the
Corporation before any distribution is made to or set apart for
the holders of Series Preference Stock or of Capital Stock, an
amount in cash equal to and in no event more than (i) $65.00 per
share plus a sum equal to accrued and unpaid dividends thereon,
whether or not earned or declared, in the event of an involuntary
liquidation, dissolution or winding up, or (ii) $68.00 per share
plus a sum equal to accrued and unpaid dividends thereon, whether
or not earned or declared, in the event of a voluntary
liquidation, dissolution or winding up on or prior to June 30,
1972, or (iii) the then applicable redemption price per share, in
the event of a voluntary liquidation, dissolution or winding up
on or subsequent to July 1, 1972.
(c) Redemption. At the option of the Corporation, by vote
of the Board of Directors, the $3.00 Convertible Preferred Stock
may be redeemed on or after, but not prior to, July 1, 1972, as a
whole, or in part, at any time or from time to time, at a
redemption price hereinafter specified. The redemption price of
shares of $3.00 Convertible Preferred Stock redeemed during the
twelve month period commencing July 1, 1972 shall be $68.00 per
share plus an amount equal to accrued and unpaid dividends
thereon to the date fixed for redemption, whether or not earned
or declared, and for shares of such Stock redeemed thereafter
shall be (i) the greater of (x) $68.00 per share minus the sum of
forty three cents for each July 1 during the period after July 1,
1972 and up to and including the date fixed for redemption or
(y) $65.00 per share, plus (ii) an amount equal to accrued and
unpaid dividends thereon to the date fixed for redemption,
whether or not earned or declared.
If less than all of the outstanding shares of $3.00
Convertible Preferred Stock are to be redeemed, the shares to be
redeemed shall be determined by lot in such usual manner and
subject to such regulations as the Board of Directors in its sole
discretion shall prescribe.
At least 30 days prior to the date fixed for the redemption
of shares of the $3.00 Convertible Preferred Stock a written
notice shall be mailed to each holder of record of shares of
$3.00 Convertible Preferred Stock to be redeemed in a postage
prepaid envelope addressed to such holder at his post office
address as shown on the records of the Corporation, notifying
such holder of the election of the Corporation to redeem such
shares, stating the date fixed for redemption thereof
(hereinafter referred to as the redemption date), and calling
upon such holder to surrender to the Corporation on the
redemption date at the place designated in such notice his
certificate or certificates representing the number of shares
specified in such notice of redemption.
On or after the redemption date each holder of shares of
$3.00 Convertible Preferred Stock to be redeemed shall present
and surrender his certificate or certificates for such shares to
the Corporation at the place designated in such notice and
thereupon the redemption price of such shares shall be paid to or
on the order of the person whose name appears on such certificate
or certificates as the owner thereof and each surrendered
certificate shall be canceled.
In case less than all the shares represented by any such
certificate are redeemed, a new certificate shall be issued
representing the unredeemed shares.
From and after the redemption date (unless default shall be
made by the Corporation in payment of the redemption price) all
dividends on the shares of $3.00 Convertible Preferred Stock
designated for redemption in such notice shall cease to accrue,
and all rights of the holders thereof as stockholders of the
Corporation, except the right to receive the redemption price
thereof upon the surrender of certificates representing the same,
shall cease and determine and such shares shall not thereafter be
transferred (except with the consent of the Corporation) on the
books of the Corporation, and such shares shall not be deemed to
be outstanding for any purpose whatsoever.
At its election the Corporation prior to the redemption date
may deposit the redemption price of the shares of $3.00
Convertible Preferred Stock so called for redemption in trust for
the holders thereof with a bank or trust company (having a
capital and surplus of not less than $5,000,000) in the Borough
of Manhattan, City and State of New York, or in any other city in
which the Corporation at the time shall maintain a transfer
agency with respect to such stock, in which case such redemption
notice shall state the date of such deposit, shall specify the
office of such bank or trust company as the place of payment of
the redemption price, and shall call upon such holders to
surrender the certificates representing such shares at such price
on or after the date fixed in such redemption notice (which shall
not be later than the redemption date) against payment of the
redemption price. From and after the making of such deposit, the
shares of $3.00 Convertible Preferred Stock so designated for
redemption shall not be deemed to be outstanding for any purpose
whatsoever, and the rights of the holders of such shares shall be
limited to the right to receive the redemption price of such
shares, without interest, upon surrender of the certificates
representing the same to the Corporation at said office of such
bank or trust company, and the right of conversion (on or before
the tenth day prior to the date fixed for redemption) herein
provided. Any funds so deposited which shall not be required for
such redemption because of the exercise of such right of
conversion after the date of such deposit shall be returned to
the Corporation forthwith. Any interest accrued on such funds
shall be paid to the Corporation from time to time.
Any moneys so deposited which shall remain unclaimed by the
holders of such $3.00 Convertible Preferred Stock at the end of
six years after the redemption date, shall be returned by such
bank or trust company to the Corporation after which the holders
of the $3.00 Convertible Preferred Stock shall have no further
interest in such moneys.
(d) Vote. Each holder of $3.00 Convertible Preferred Stock
shall be entitled to one vote for each share held on each matter
submitted to a vote of stockholders of the Corporation and,
except as otherwise herein or by law provided, the $3.00
Convertible Preferred Stock, the Capital Stock of the
Corporation, and any other capital stock of the Corporation at
the time entitled thereto, shall vote together as one class,
except that while the holders of $3.00 Convertible Preferred
Stock, voting as a class, are entitled to elect two directors as
hereinafter provided, they shall not be entitled to participate
with the Capital Stock (or any other capital stock as aforesaid)
in the election of any other directors.
(e) Class Voting. In case at any time the equivalent of
six or more full quarterly dividends (whether consecutive or not)
on the $3.00 Convertible Preferred Stock shall be in arrears,
then during the period (hereinafter in this subparagraph (e)
called the Class Voting Period) commencing with such time and
ending with the time when all arrears in dividends on the $3.00
Convertible Preferred Stock shall have been paid and the full
dividend on the $3.00 Convertible Preferred Stock for the then
current quarterly dividend period shall have been paid or
declared and set apart for payment, at any meeting of the
stockholders of the Corporation held for the election of
directors during the Class Voting Period, the holders of $3.00
Convertible Preferred Stock represented in person or by proxy at
said meeting shall be entitled, as a class, to the exclusion of
the holders of all other classes of stock of the Corporation, to
elect two directors of the Corporation, each share of $3.00
Convertible Preferred Stock entitling the holder thereof to one
vote.
Any director who shall have been elected by holders of $3.00
Convertible Preferred Stock or any director elected by the
remaining director as provided in the next sentence, may be
removed at any time during a Class Voting Period, either for or
without cause, by, and only by, the affirmative votes of the
holders of record of a majority of the outstanding shares of
$3.00 Convertible Preferred Stock given at a special meeting of
such stockholders called for the purpose and any vacancy thereby
created may be filled during such Class Voting Period by the
holders of $3.00 Convertible Preferred Stock, present in person
or represented by proxy at such meeting. In the event that any
director elected by the holders of the $3.00 Convertible
Preferred Stock (or any director elected pursuant to the
provisions of this sentence) dies, resigns or otherwise ceases to
be a director, the remaining director may elect a successor;
provided, however, that the foregoing shall not apply to a
vacancy created by the removal of a director by the holders of
$3.00 Convertible Preferred Stock as provided in the preceding
sentence. At the end of the Class Voting Period the holders of
$3.00 Convertible Preferred Stock shall be automatically divested
of all voting power vested in them under this subparagraph (e)
but subject always to the subsequent vesting hereunder of voting
power in the holders of $3.00 Convertible Preferred Stock in the
event of any similar default or defaults thereafter. The term of
all directors elected pursuant to the provisions of this
subparagraph (e) shall in all events expire at the end of the
Class Voting Period.
(f) Conversion. Each share of the $3.00 Convertible
Preferred Stock may be converted, at the option of the holder
thereof, at any time prior to July 1, 1987 (but in case the same
shall be called for redemption, only until the close of business
on the tenth day prior to the date fixed for the redemption
thereof) into three and six-tenths (3.6) fully paid and
non-assessable shares of Capital Stock of the Corporation, the
respective number of shares of Capital Stock in any case being
subject to adjustment, however, as hereinafter in
subparagraph (g) provided. Upon any such conversion of shares of
$3.00 Convertible Preferred Stock no allowance or adjustment
shall be made with respect to dividends upon either class of
stock.
Such option to convert shares of $3.00 Convertible Preferred
Stock into shares of Capital Stock may be exercised by, and only
by, surrendering for such purpose to the Corporation at the
office of any of its Transfer Agents for its Capital Stock for
the time being, located in the City of New York or in any other
city in which the Corporation at the time shall maintain a
transfer agency with respect to such stock, certificates
representing the shares to be converted, duly endorsed or
accompanied by proper instruments of transfer, together with a
written request for conversion. At the time of such surrender,
the person exercising such option to convert shall be deemed to
be the holder of the shares of Capital Stock issuable upon such
conversion, notwithstanding that the stock transfer books of the
Corporation may then be closed or that certificates representing
such shares of Capital Stock shall not then be actually delivered
to such person.
The term "Capital Stock" as used in this Subdivision A shall
be deemed to include stock of the Corporation of every class,
except stock which shall be preferred as to dividends or assets
over the Capital Stock of the Corporation or which shall not
participate equally, share for share, with such Capital Stock in
earnings or assets remaining after payment in full of the
preferential amounts of dividends or assets to which such stock
shall be entitled; provided, however, that the shares of Capital
Stock into which shares of the $3.00 Convertible Preferred Stock
shall be convertible, shall be shares of Capital Stock of the
character authorized at the date of the initial issuance of the
$3.00 Convertible Preferred Stock or, in case of a
reclassification or exchange of such Capital Stock, shares of the
stock into or for which such Capital Stock shall be reclassified
or exchanged and all provisions of this Subdivision A shall be
applied appropriately thereto and to any stock resulting from any
subsequent reclassification or exchange thereof.
(g) Anti-Dilution. The number of shares of Capital Stock
into which each share of $3.00 Convertible Preferred Stock may be
converted shall be subject to adjustment from time to time in
certain instances as follows:
(1) If at any time or from time to time the
outstanding shares of Capital Stock of the Corporation
shall be subdivided or combined into a greater or
smaller number of shares (by way of reclassification or
splitup of shares or in any other manner), then the
number of shares of Capital Stock into which each share
of $3.00 Convertible Preferred Stock may, after any
such subdivision or combination becomes effective, be
converted shall be increased or reduced in the same
proportion.
(2) If at any time or from time to time there is
declared on the Capital Stock of the Corporation any
dividend payable in Capital Stock of the Corporation,
then the number of shares of Capital Stock into which
each share of $3.00 Convertible Preferred Stock may be
converted on or after the record date fixed for such
dividend shall be increased in the same proportion as
the aggregate number of shares of Capital Stock issued
or to be issued on account of such dividend bears to
the aggregate number of shares of Capital Stock on
which such dividend is or is to be paid.
(3) If the Corporation shall grant the holders of
its Capital Stock, as such, rights to subscribe for
shares of Capital Stock and/or securities convertible
into, exchangeable for, or carrying rights of purchase
of shares of Capital Stock and if (i) the conversion
price (determined by dividing Sixty-Five Dollars
($65.00) by the number of shares of Capital Stock
deliverable upon conversion of each share of $3.00
Convertible Preferred Stock, immediately before the
time herein provided for such adjustment) and (ii) the
"market value per share" of Capital Stock on the first
full business day (excluding any Saturday) after the
last date on which any of such rights to subscribe may
be exercised, shall each exceed the amount payable for
one share of Capital Stock on exercise of such rights
to subscribe, then in each case said conversion price
shall be reduced by "the value of the right to
subscribe", as limited and defined herein, so granted
to the holder of one share of Capital Stock, and the
number of shares of Capital Stock deliverable
thereafter upon conversion of each share of $3.00
Convertible Preferred Stock, shall be the quotient
obtained by dividing Sixty-Five Dollars ($65.00) by the
conversion price so reduced.
The adjustment provided for herein shall be
effective immediately after the close of business on
the day as of which said market value per share of
Capital Stock is taken.
For the purpose of such adjustment, the "value of
the right to subscribe" so granted to the holder of one
share of Capital Stock shall be deemed to be an amount
equal to the quotient obtained by dividing (x) the
excess of said "market value per share" of Capital
Stock or said conversion price immediately before such
reduction, whichever is lower, over the amount payable
for one share of Capital Stock on exercise of such
rights to subscribe by (y) the number of shares of
Capital Stock with respect to which is granted the
right to subscribe for one full share of Capital Stock.
For the purpose of such adjustment, the "market
value per share" of Capital Stock shall be deemed to be
the mean between the high and low sales prices per
share of Capital Stock on the day as of which such
market value is taken (or lacking any sales, the mean
between the closing bid and asked prices on that day)
or, if the New York Stock Exchange is not open on that
day, then on the first full business day (excluding any
Saturday) upon which the New York Stock Exchange is
open immediately following such day. Such sales prices
or such bid and asked prices, as the case may be, shall
be those on the New York Stock Exchange if the Capital
Stock be listed or dealt in thereon at the time, or, if
not listed or dealt in thereon, then those on such
exchange as shall have been selected from time to time
by the Corporation for the purpose or, if not listed or
dealt in on any exchange, then those furnished by the
trading department of any New York Stock Exchange firm
selected from time to time by the Corporation for the
purpose and deemed by it to be reliable.
For the purpose of such adjustment in case of such
granting of rights to subscribe for securities
convertible into, exchangeable for, or carrying rights
of purchase of, shares of Capital Stock, (i) the holder
of one share of Capital Stock shall be deemed to have
been granted a right to subscribe for such number of
shares of Capital Stock as shall be deliverable upon
exercise of the rights of conversion, exchange or
purchase of all of the securities for which such holder
is granted rights to subscribe, (ii) the last date on
which any rights to subscribe for shares of Capital
Stock (so deemed to have been granted) may be exercised
shall be deemed to be the last date on which any of the
aforesaid rights may be exercised to subscribe for such
securities convertible into, exchangeable for, or
carrying rights of purchase of, shares of Capital
Stock, and (iii) the amount payable for one share of
Capital Stock on exercise of a right to subscribe for
shares of Capital Stock (so deemed to have been
granted) shall be deemed to be the sum of (x) the
consideration payable to the Corporation for such
number of such securities as are convertible into or
exchangeable for one full share of Capital Stock,
(y) in the case of securities carrying such rights, the
amount (if any) by which the consideration payable to
the Corporation for such number of such securities as
carry rights to purchase one full share of Capital
Stock shall exceed the distributive amount, if any
(excluding any sums with respect to accrued dividends)
payable on voluntary liquidation of the Corporation
with respect to such securities, if stock, or, if not
stock, the principal amount of such securities, and
(z) any additional amount thereafter payable to the
Corporation for one full share of Capital Stock upon
the exercise of such rights of conversion, exchange or
purchase.
(4) No adjustment in the conversion prices
resulting from the application of the foregoing
provisions of clause (3) of subparagraph (g) is to be
given effect unless, by making such adjustments, the
conversion price in effect immediately prior to such
adjustment would be changed by thirty cents or more,
and such adjustments shall be made only in amounts of
thirty cents or a multiple thereof, but any adjustment
which would change the conversion price by less than
thirty cents or a multiple thereof is to the extent of
the difference between the next multiple thereof and
such lesser multiple to be carried forward and given
effect in making future adjustments.
(h) Certificate as to Adjustment of the Conversion Price;
Reservation of Shares. Whenever the amount of Capital Stock
and/or other securities deliverable upon the conversion of the
shares of $3.00 Convertible Preferred Stock shall be adjusted
pursuant to the provisions hereof, the Corporation shall
forthwith file at its principal office and with the transfer
agent or agents for the $3.00 Convertible Preferred Stock and for
such Capital Stock a statement, signed by the President or one of
the Vice Presidents of the Corporation and by its Treasurer or
one of its Assistant Treasurers, stating the adjusted amount of
its Capital Stock and/or other securities deliverable per share
of $3.00 Convertible Preferred Stock calculated to the nearest
one hundredth (1/100th) and setting forth in reasonable detail
the method of calculation and the facts requiring such adjustment
and upon which such calculation is based. Each adjustment shall
remain in effect until a subsequent adjustment hereunder is
required.
The Corporation shall at all times reserve and keep
available out of its authorized but unissued Capital Stock, the
full number of shares of Capital Stock deliverable upon the
conversion of all outstanding shares of $3.00 Convertible
Preferred Stock which are convertible into Capital Stock and upon
exercise of any outstanding rights or options to purchase Capital
Stock.
(i) Fractional Shares. In connection with the conversion
of shares of $3.00 Convertible Preferred Stock into Capital
Stock, no fractions of shares of $3.00 Convertible Preferred
Stock nor of Capital Stock shall be issued; and, in lieu thereof,
non-dividend bearing non-voting scrip (exchangeable when combined
for full shares) may be issued, or the Board of Directors may
make such provisions for the stockholders in lieu of the issue of
scrip as it may determine, including payment in cash or sale of
stock to the extent of any fractions of shares and distribution
of the net proceeds or otherwise. The Board of Directors may
determine and fix the form of such scrip, whether bearer or
otherwise, the denomination thereof, the expiration dates
thereof, any provisions permitting sale of the full shares for
which such scrip is exchangeable for the account of the holder of
such scrip (or in lieu of sale of such full shares, provisions
for the determination of the value thereof, based upon quotations
therefor on the New York Stock Exchange on any specified date or
dates or based upon any other method or methods of determination
of value, and for payment of the value so determined to the
holders of such scrip), and any other terms or provisions of such
scrip as it may deem advisable.
(j) No Reissuance. Converted or redeemed shares of $3.00
Convertible Preferred Stock shall become authorized and unissued
shares and subject to the provisions of subsection (k) may be
reissued by the Corporation.
(k) Priority. All shares of $3.00 Convertible Preferred
Stock shall be of senior rank in respect of the preference as to
dividends and to payments upon the liquidation, distribution or
sale of assets, dissolution or winding up of the Corporation to
all shares of Series Preference Stock.
(l) Issuance of Senior Stock. While any of the $3.00
Convertible Preferred Stock is outstanding, the Corporation shall
not, without the affirmative consent (given in writing or at a
meeting duly called for that purpose) of the holders of at least
two-thirds (2/3rds) of the aggregate number of shares of $3.00
Convertible Preferred Stock then outstanding, (1) issue shares of
any class or series of stock (hereinafter in this
subparagraph (1) referred to as "Senior Stock") having any
preference or priority over, or being of equal rank with, the
$3.00 Convertible Preferred Stock as to dividends or upon
liquidation; (2) reclassify any shares of stock of the
Corporation into shares of Senior Stock; (3) issue any security
exchangeable for, convertible into, or evidencing the right to
purchase any shares of Senior Stock; (4) be a party to any merger
or consolidation unless the surviving or resulting corporation
will have after such merger or consolidation no stock either
authorized or outstanding ranking prior or equal, as to dividends
or upon liquidation, to the $3.00 Convertible Preferred Stock or
to the stock of the surviving or resulting corporation issued in
exchange therefor (except such prior or equal ranking stock of
the Corporation as may have been authorized or outstanding
immediately preceding such merger or consolidation or such stock
of the surviving or resulting corporation as may be issued in
exchange therefor); or (5) amend, alter or repeal the Certificate
of Incorporation of the Corporation to alter or change the
preferences, rights or powers of the $3.00 Convertible Preferred
Stock so as to affect such stock adversely.
(m) Merger. At the time any of the $3.00 Convertible
Preferred Stock is outstanding, the Corporation will not, without
the affirmative consent (given in writing or at a meeting duly
called for that purpose) of the holders of at least two-thirds
(2/3rds) of the aggregate number of shares of $3.00 Convertible
Preferred Stock then outstanding, at any time during the
conversion period, consolidate or merge with or into another
corporation (whether or not the Corporation is the surviving
corporation), or at any time when the $3.00 Convertible Preferred
Stock is not redeemable at the option of the Corporation, sell
all or substantially all of its assets to another corporation,
unless in connection therewith lawful and adequate provision is
made whereby the holders of $3.00 Convertible Preferred Stock
shall receive the right to convert during the conversion period
into the kind and amount of shares of stock and other securities
to be received by holders of the number of shares of Capital
Stock of the Corporation into which the $3.00 Convertible
Preferred Stock might have been converted immediately prior to
such consolidation, merger or sale, which right shall be subject
to adjustment, as nearly equivalent as may be practicable to the
adjustments provided for in this Subsection A.
SUBSECTION B. PROVISIONS APPLICABLE TO ALL SERIES
OF SERIES PREFERENCE STOCK
(a) Issuance in Series. Shares of Series Preference Stock
may be issued from time to time in one or more series. The
shares of all series shall be without par value. The terms of
Series A Preference Stock and Series B Preference Stock shall be
as specified herein and in Subsections C and D of this Section.
The preferences and relative, participating, optional and other
special rights of each subsequent series and the qualifications,
limitations or restrictions thereof, if any, may differ from
those of any and all other series already outstanding; the terms
of each subsequent series shall be as specified in this
Subsection B and in an amendment or amendments hereof (including
any amendment made by action of the Board of Directors without
shareholder approval) and the Board of Directors of the
Corporation is hereby expressly granted authority to fix, by
resolution or resolutions adopted prior to the issuance of any
shares of a particular subsequent series of Series Preference
Stock, the number of authorized shares of any such series and the
designations, preferences and relative, participating, optional
and other special rights, or the qualifications, limitations or
restrictions thereof, of such series, including but without
limiting the generality of the foregoing, the following:
(i) The rate and times at which, and the terms
and conditions on which, dividends on the Series
Preference Stock of such series shall be paid;
(ii) The rights, if any, of holders of Series
Preference Stock of such series to convert the same
into, or exchange the same for, other classes of stock
of the Corporation and the terms and conditions of such
conversion or exchange;
(iii) The redemption price or prices and the time
at which, and the terms and conditions on which, Series
Preference Stock of such series may be redeemed;
(iv) The rights of the holders of Series
Preference Stock of such series upon the voluntary or
involuntary liquidation, distribution or sale of
assets, dissolution or winding up of the Corporation;
(v) The voting power, if any, of the Series
Preference Stock of such series; and
(vi) The terms of the sinking fund or redemption
or purchase account, if any, to be provided for the
Series Preference Stock of such series.
(b) Equal Rank. All shares of each series shall be
identical in all respects, and all shares of Series Preference
Stock of all series shall be of equal rank in respect of the
preference as to dividends and to payments upon the liquidation,
distribution or sale of assets, dissolution and winding up of the
Corporation. All shares of Series Preference Stock of all series
shall be of junior rank in respect of the preference as to
dividends and to payments upon the liquidation, distribution or
sale of assets, dissolution or winding up of the Corporation to
all shares of the $3.00 Convertible Preferred Stock. The rights
of the Capital Stock of the Corporation shall be subject to the
preferences and relative, participating, optional and other
special rights of the Series Preference Stock of each series as
fixed herein and from time to time by the Board of Directors as
aforesaid.
(c) Dividends On All Series. If dividends on the Series
Preference Stock of any series are not paid in full or declared
in full and sums set apart for the payment thereof, then no
dividends shall be declared and paid on any such stock unless
declared and paid ratably on all shares of each series of the
Series Preference Stock then outstanding, including dividends
accrued or in arrears, if any, in proportion to the respective
amounts that would be payable per share if all such dividends
were declared and paid in full. The term "dividends accrued or
in arrears" whenever used herein with reference to the Series
Preference Stock shall be deemed to mean an amount which shall be
equal to dividends thereon at the annual dividend rates per share
for the respective series from the date or dates on which such
dividends commence to accrue to the end of the then current
quarterly dividend period for such stock (or, in the case of
redemption, to the date of redemption), less the amount of all
dividends paid upon such stock. If upon any liquidation,
dissolution or winding up of the Corporation the assets
distributable among the holders of any series of Series
Preference Stock shall be insufficient to permit the payment in
full to the holders of all series of the Series Preference Stock,
of all preferential amounts payable to all such holders, then the
entire assets of the Corporation thus distributable shall be
distributed ratably among the holders of all series of the Series
Preference Stock in proportion to the respective amounts that
would be payable per share if such assets were sufficient to
permit payment in full.
(d) Special Vote. While any Series Preference Stock is
outstanding the Corporation shall not, without the affirmative
consent (given in writing or at a meeting duly called for that
purpose) of the holders of at least two-thirds (2/3rds) of the
aggregate number of shares of Series Preference Stock then
outstanding, (1) authorize or issue shares of any class or series
of stock leaving any preference or priority as to dividends or
upon liquidation (hereinafter in this subparagraph (d) referred
to as "Senior Stock") over the Series Preference Stock;
(2) reclassify any shares of stock of the Corporation into shares
of Senior Stock; (3) issue any security exchangeable for,
convertible into, or evidencing the right to purchase any shares
of Senior Stock; (4) be a party to any merger or consolidation
unless the surviving or resulting corporation will have after
such merger or consolidation no stock either authorized or
outstanding ranking prior as to dividends or upon liquidation to
the Series Preference Stock or to the stock of the surviving or
resulting corporation issued in exchange therefor (except such
prior ranking stock of the Corporation as may have been
authorized or outstanding immediately preceding such merger or
consolidation or such stock of the surviving or resulting
corporation as may be issued in exchange therefor); or (5) amend,
alter or repeal the Certificate of Incorporation of the
Corporation to alter or change the preferences, rights or powers
of the Series Preference Stock so as to affect such stock
adversely.
SUBSECTION C. SPECIAL PROVISIONS APPLICABLE TO
SERIES A PREFERENCE STOCK
There is hereby established Series A Preference Stock which
shall be designated "$1.20 Cumulative Convertible Preference
Stock Series A" (herein referred to as "$1.20 Convertible
Preference Stock") and shall consist of 2,568,096 shares, and no
more. The relative, participating, optional and other special
rights and the qualifications, limitations and restrictions,
other than those specified for all series of Series Preference
Stock in Subsection B of this Section IV, of the $1.20
Convertible Preference Stock, shall be as follows:
(a) Dividends. The holders of $1.20 Convertible Preference
Stock in preference to the holders of Capital Stock of the
Corporation, shall be entitled to receive, as and when declared
by the Board of Directors, dividends at the rate of $1.20 per
share per annum and no more, payable quarterly on the first days
of March, June, September and December in each year. Such
preferential dividends shall accrue, (i) with respect to shares
of $1.20 Convertible Preference Stock issued in exchange for
shares of stock of United pursuant to the Agreement of Merger,
from the record date for the payment of the regular quarterly
dividend on the United Common Stock which immediately precedes
the Effective Date and (ii) with respect to shares of $1.20
Convertible Preference Stock issued at a time when other shares
of $1.20 Convertible Preference Stock are outstanding from such
date as shall make the dividend rights per share of the shares
being issued uniform with the dividend rights per share of the
shares then outstanding, excluding rights to dividends declared
and directed to be paid to shareholders of record as of a date
preceding the date of issuance of the shares being issued, and
shall be cumulative so that if dividends in respect of any
quarterly dividend period at the rate of $1.20 per share per
annum shall not have been paid upon or declared and set apart for
the $1.20 Convertible Preference Stock, the deficiency shall be
fully paid or declared and set apart before any dividend shall be
paid upon or declared or set apart for the Capital Stock.
Preferential dividends on the $1.20 Convertible Preference Stock
shall be deemed to accrue from day to day. Except as otherwise
provided in the preceding sentence, a quarterly dividend period
shall begin on the day following each dividend payment date set
forth above and end on the next succeeding dividend payment date.
(b) Liquidation. The $1.20 Convertible Preference Stock
shall be preferred as to assets over the Capital Stock, so that
in the event of the liquidation, dissolution or winding up of the
Corporation, the holders of $1.20 Convertible Preference Stock
shall be entitled to have set apart for them, or to be paid, out
of the assets of the Corporation before any distribution is made
to or set apart for the holders of Capital Stock, an amount in
cash equal to and in no event more than (i) $20.00 per share plus
a sum equal to accrued and unpaid dividends thereon, whether or
not earned or declared, in the event of an involuntary
liquidation, dissolution or winding up, or (ii) $22.00 per share
plus a sum equal to accrued and unpaid dividends thereon, whether
or not earned or declared, in the event of a voluntary
liquidation, dissolution or winding up on or prior to the date
(the "Date") which is five years after the Effective Date, or
(iii) the then applicable redemption price per share, in the
event of a voluntary liquidation, dissolution or winding up on or
subsequent to the Date.
(c) Redemption. At the option of the Corporation, by vote
of the Board of Directors, the $1.20 Convertible Preference Stock
may be redeemed on or after, but not prior to, the Date, as a
whole, or in part, at any time or from time to time, at a
redemption price hereinafter specified. The redemption price of
shares of $1.20 Convertible Preference Stock redeemed during the
twelve month period commencing on the Date shall be $22.00 per
share plus an amount equal to accrued and unpaid dividends
thereon to the date fixed for redemption, whether or not earned
or declared, and for shares of such stock redeemed thereafter
shall be (i) the greater of (x) $22.00 per share minus the sum of
twenty cents for each anniversary of the Date during the period
after the Date and up to and including the date fixed for
redemption or (y) $20.00 per share, plus (ii) an amount equal to
accrued and unpaid dividends thereon to the date fixed for
redemption, whether or not earned or declared.
If less than all of the outstanding shares of $1.20
Convertible Preference Stock are to be redeemed the shares to be
redeemed shall be determined by lot in such usual manner and
subject to such regulations as the Board of Directors in its sole
discretion shall prescribe.
Not more than 90 days and not less than 30 days prior to the
date fixed for the redemption of shares of the $1.20 Convertible
Preference Stock a written notice shall be mailed to each holder
of record of shares of $1.20 Convertible Preference Stock to be
redeemed in a postage prepaid envelope addressed to such holder
at his post office address as shown on the records of the
Corporation, notifying such holder of the election of the
Corporation to redeem such shares, stating the date fixed for
redemption thereof (hereinafter referred to as the redemption
date), and calling upon such holder to surrender to the
Corporation on the redemption date at the place designated in
such notice his certificate or certificates representing the
number of shares specified in such notice of redemption.
On or after the redemption date each holder of shares of
$1.20 Convertible Preference Stock to be redeemed shall present
and surrender his certificate or certificates for such shares to
the Corporation at the place designated in such notice and
thereupon the redemption price of such shares shall be paid to or
on the order of the person whose name appears on such certificate
or certificates as the owner thereof and each surrendered
certificate shall be canceled.
In case less than all the shares represented by any such
certificate are redeemed, a new certificate shall be issued
representing the unredeemed shares.
From and after the redemption date (unless default shall be
made by the Corporation in payment of the redemption price) all
dividends on the shares of $1.20 Convertible Preference Stock
designated for redemption in such notice shall cease to accrue,
and all rights of the holders thereof as stockholders of the
Corporation, except the right to receive the redemption price
thereof upon the surrender of certificates representing the same,
shall cease and determine and such shares shall not thereafter be
transferred (except with the consent of the Corporation) on the
books of the Corporation, and such shares shall not be deemed to
be outstanding for any purpose whatsoever.
At its election the Corporation prior to the redemption date
may deposit the redemption price of the shares of $1.20
Convertible Preference Stock so called for redemption in trust
for the holders thereof with a bank or trust company (having a
capital and surplus of not less than $5,000,000) in the Borough
of Manhattan, City and State of New York, or in any other city in
which the Corporation at the time shall maintain a transfer
agency with respect to such Stock, in which case such redemption
notice shall state the date of such deposit, shall specify the
office of such bank or trust company as the place of payment of
the redemption price, and shall call upon such holders to
surrender the certificates representing such shares at such price
on or after the date fixed in such redemption notice (which shall
not be later than the redemption date) against payment of the
redemption price. From and after the making of such deposit, the
shares of $1.20 Convertible Preference Stock so designated for
redemption shall not be deemed to be outstanding for any purpose
whatsoever, and the rights of the holders of such shares shall be
limited to the right to receive the redemption price of such
shares, without interest, upon surrender of the certificates
representing the same to the Corporation at said office of such
bank or trust company, and the right of conversion (on or before
the fifth day prior to the date fixed for redemption) herein
provided. Any funds so deposited which shall not be required for
such redemption because of the exercise of such right of
conversion after the date of such deposit shall be returned to
the Corporation forthwith. Any interest accrued on such funds
shall be paid to the Corporation from time to time.
Any moneys so deposited which shall remain unclaimed by the
holders of such $1.20 Convertible Preference Stock at the end of
six years after the redemption date, shall be returned by such
bank or trust company to the Corporation after which the holders
of the $1.20 Convertible Preference Stock shall have no further
interest in such moneys.
(d) Vote. Each holder of $1.20 Convertible Preference
Stock shall be entitled to seven-tenths (0.7) of a share vote for
each share held on each matter submitted to a vote of
stockholders of the Corporation and, except as otherwise herein
or by law provided, the $1.20 Convertible Preference Stock, the
Capital Stock of the Corporation, and any other capital stock of
the Corporation at the time entitled thereto, shall vote together
as one class, except that while the holders of $1.20 Convertible
Preference Stock, voting as a class, are entitled to elect two
directors as hereinafter provided, they shall not be entitled to
participate with the Capital Stock (or any other capital stock as
aforesaid) in the election of any other directors.
(e) Class Voting. In case at any time the equivalent of
six or more full quarterly dividends (whether consecutive or not)
on the $1.20 Convertible Preference Stock shall be in arrears,
then during the period (hereinafter in this subparagraph (e)
called the Class Voting Period) commencing with such time and
ending with the time when all arrears in dividends on the $1.20
Convertible Preference Stock shall have been paid and the full
dividend on the $1.20 Convertible Preference Stock for the then
current quarterly dividend period shall have been paid or
declared and set apart for payment, at any meeting of the
stockholders of the Corporation held for the election of
directors during the Class Voting Period, the holders of $1.20
Convertible Preference Stock represented in person or by proxy at
said meeting shall be entitled, as a class, to the exclusion of
the holders of all other classes of stock of the Corporation, to
elect two directors of the Corporation, each share of $1.20
Convertible Preference Stock entitling the holder thereof to one
vote.
Any director who shall have been elected by holders of $1.20
Convertible Preference Stock or any director elected by the
remaining director as provided in the next sentence, may be
removed at any time during a Class Voting Period, either for or
without cause, by, and only by, the affirmative votes of the
holders of record of a majority of the outstanding shares of
$1.20 Convertible Preference Stock given at a special meeting of
such stockholders called for the purpose and any vacancy thereby
created may be filled during such Class Voting Period by the
holders of $1.20 Convertible Preference Stock, present in person
or represented by proxy at such meeting. In the event that any
director elected by the holders of the $1.20 Convertible
Preference Stock (or any director elected pursuant to the
provisions of this sentence) dies, resigns or otherwise ceases to
be a director, the remaining director may elect a successor;
provided, however, that the foregoing shall not apply to a
vacancy created by the removal of a director by the holders of
$1.20 Convertible Preference Stock as provided in the preceding
sentence. At the end of the Class Voting Period the holders of
$1.20 Convertible Preference Stock shall be automatically
divested of all voting power vested in them under this
subparagraph (e) but subject always to the subsequent vesting
hereunder of voting power in the holders of $1.20 Convertible
Preference Stock in the event of any similar default or defaults
thereafter. The term of all directors elected pursuant to the
provisions of this subparagraph (e) shall in all events expire at
the end of the Class Voting Period.
(f) Conversion. Each share of the $1.20 Convertible
Preference Stock may be converted, at the option of the holder
thereof, at any time (but in case the same shall be called for
redemption, only until the close of business on the fifth
business day prior to the date fixed for the redemption thereof)
into seven-tenths (0.7) of a fully paid and non-assessable share
of Capital Stock of the Corporation, the number of shares of
Capital Stock in any case being subject to adjustment, however,
as hereinafter in subparagraph (g) provided. Upon any such
conversion of shares of $1.20 Convertible Preference Stock no
allowance or adjustment shall be made with respect to dividends
upon either class of stock.
Such option to convert shares of $1.20 Convertible
Preference Stock into shares of Capital Stock may be exercised
by, and only by, surrendering for such purpose to the Corporation
at the office of any of its Transfer Agents for its Capital Stock
for the time being, located in the City of New York or in any
other city in which the Corporation at the time shall maintain a
transfer agency with respect to such Stock, certificates
representing the shares to be converted, duly endorsed or
accompanied by proper instruments of transfer, together with a
written request for conversion. At the time of such surrender,
the person exercising such option to convert shall be deemed to
be the holder of the shares of Capital Stock issuable upon such
conversion, notwithstanding that the stock transfer books of the
Corporation may then be closed or that certificates representing
such shares of Capital Stock shall not then be actually delivered
to such person.
The term "Capital Stock" as used in this Subsection C shall
be deemed to include stock of the Corporation of every class,
except stock which shall be preferred as to dividends or assets
over the Capital Stock of the Corporation or which shall not
participate equally, share for share, with such Capital Stock in
earnings or assets remaining after payment in full of the
preferential amounts of dividends or assets to which such stock
shall be entitled; provided, however, that the shares of Capital
Stock into which shares of the $1.20 Convertible Preference Stock
shall be convertible, shall be shares of Capital Stock of the
character authorized at the date of the initial issuance of the
$1.20 Convertible Preference Stock or, in case of a
reclassification or exchange of such Capital Stock, shares of
tile stock into or for which such Capital Stock shall be
reclassified or exchanged and all provisions of this Subsection C
shall be applied appropriately thereto and to any stock resulting
from any subsequent reclassification or exchange thereof.
(g) Anti-Dilution. The number of shares of Capital Stock
into which each share of $1.20 Convertible Preference Stock may
be converted shall be subject to adjustment from time to time in
certain instances as follows:
(1) If at any time or from time to time the
outstanding shares of Capital Stock of the Corporation
shall be subdivided or combined into a greater or
smaller number of shares (by way of reclassification or
splitup of shares or in any other manner), then the
number of shares of Capital Stock into which each share
of $1.20 Convertible Preference Stock may, after any
such subdivision or combination becomes effective, be
converted shall be increased or reduced in the same
proportion.
(2) If at any time or from time to time there is
declared on the Capital Stock of the Corporation any
dividend payable in Capital Stock of the Corporation,
then the number of shares of Capital Stock into which
each share of $1.20 Convertible Preference Stock may be
converted on or after the record date fixed for such
dividend shall be increased in the same proportion as
the aggregate number of shares of Capital Stock issued
or to be issued on account of such dividend bears to
the aggregate number of shares of Capital Stock on
which such dividend is or is to be paid.
(3) If the Corporation shall grant the holders of
its Capital Stock, as such, rights to subscribe for
shares of Capital Stock and/or securities convertible
into, exchangeable for, or carrying rights of purchase
of shares of Capital Stock and if the "market value per
share" of Capital Stock on the first full business day
(excluding any Saturday) after the last date on which
any of such rights to subscribe may be exercised, shall
exceed the amount payable for one share of Capital
Stock on exercise of such rights to subscribe, then in
each case the conversion price in effect immediately
prior to such issuance shall be reduced by "the value
of the right to subscribe", as limited and defined
herein, so granted to the holder of one share of
Capital Stock, and the number of shares of Capital
Stock deliverable thereafter upon conversion of each
share of $1.20 Convertible Preference Stock, shall be
the quotient obtained by dividing Twenty Dollars
($20.00) by the conversion price so reduced.
The adjustment provided for herein shall be
effective immediately after the close of business on
the day as of which said market value per share of
Capital Stock is taken.
For the purpose of such adjustment, the "value of
the right to subscribe" so granted to the holder of one
share of Capital Stock shall be deemed to be an amount
equal to the quotient obtained by dividing (x) the
excess of said "market value per share" of Capital
Stock over the amount payable for one share of Capital
Stock on exercise of such rights to subscribe by (y)
the number of shares of Capital Stock with respect to
which is granted the right to subscribe for one full
share of Capital Stock.
For the purpose of such adjustment and any adjustment
pursuant to clause (4) of this subparagraph (g), the "market
value per share" of Capital Stock shall be deemed to be the mean
between the high and low sales prices per share of Capital Stock
on the day as of which such market value is taken (or lacking any
sales, the mean between the closing bid and asked prices on that
day) or, if the New York Stock Exchange is not open on that day,
then on the first full business day (excluding any Saturday) upon
which the New York Stock Exchange is open immediately following
such day. Such sales prices or such bid and asked prices, as the
case may be, shall be those on the New York Stock Exchange if the
Capital Stock be listed or dealt in thereon at the time, or, if
not listed or dealt in thereon, then those on such exchange as
shall have been selected from time to time by the Corporation for
the purpose or, if not listed or dealt in on any exchange, then
those furnished by the trading department of any New York Stock
Exchange firm selected from time to time by the Corporation for
the purpose and deemed by it to be reliable.
For the purpose of such adjustment in case of such granting
of rights to subscribe for securities convertible into,
exchangeable for, or carrying rights of purchase of, shares of
Capital Stock, (i) the holder of one share of Capital Stock shall
be deemed to have been granted a right to subscribe for such
number of shares of Capital Stock as shall be deliverable upon
exercise of the rights of conversion, exchange or purchase of all
of the securities for which such holder is granted rights to
subscribe, (ii) the last date on which any rights to subscribe
for shares of Capital Stock (so deemed to have been granted) may
be exercised shall be deemed to be the last date on which any of
the aforesaid rights may be exercised to subscribe for such
securities convertible into, exchangeable for, or carrying rights
of purchase of, shares of Capital Stock, and (iii) the amount
payable for one share of Capital Stock on exercise of a right to
subscribe for shares of Capital Stock (so deemed to have been
granted) shall be deemed to be the sum of (x) the consideration
payable to the Corporation for such number of such securities as
are convertible into or exchangeable for one full share of
Capital Stock, and (y) in the case of securities carrying such
rights, the amount (if any) by which the consideration payable to
the Corporation for such number of such securities as carry
rights to purchase one full share of Capital Stock shall exceed
the distributive amount, if any (excluding any sums with respect
to accrued dividends) payable on voluntary liquidation of the
Corporation with respect to such securities, if stock, or, if not
stock, the principal amount of such securities, and (z) any
additional amount thereafter payable to the Corporation for one
full share of Capital Stock upon the exercise of such rights of
conversion, exchange or purchase.
(4) If the Corporation shall distribute to all holders of
its Capital Stock evidences of its indebtedness or assets
(excluding dividends or distributions referred to in subparagraph
(a) or clause 2 of this subparagraph (g)) or rights to subscribe
(other than those referred to in clause (3) of this subparagraph
(g)), then in each such case the amount of Capital Stock into
which each share of $1.20 Convertible Preference Stock shall
thereafter be converted shall be determined by multiplying the
amount of Capital Stock into which such $1.20 Convertible
Preference Stock was theretofore convertible by a fraction, of
which the numerator shall be the "market value per share" of
Capital Stock (determined as provided in clause (3) of this
subparagraph (g)) on the date of such distribution and of which
the denominator shall be such market value per share of Capital
Stock, less the then fair market value (as determined by the
Board of Directors, whose determination shall be conclusive, and
described in a statement filed with the transfer agent or agents
for the $1.20 Convertible Preference Stock and the Capital Stock)
of the portion of the assets or evidences of indebtedness so
distributed and such subscription rights applicable to one share
of Capital Stock. Such adjustment shall be made whenever such
distribution is made, and shall become effective retroactively
immediately after the record date for the determination of
shareholders entitled to receive such distribution; provided,
however, that if the Corporation shall, before the distribution
to shareholders, legally abandon its plan to make such
distribution, no adjustment of the amount of Capital Stock
issuable upon conversion of the $1.20 Convertible Preference
Stock shall be required by reason of the taking of such record.
(5) No adjustment in the conversion prices resulting from
the application of the foregoing provisions of clauses (3) and
(4) of subparagraph (g) is to be given effect unless, by making
such adjustments, the conversion price in effect immediately
prior to such adjustment would be changed by twelve cents or
more, and such adjustments shall be made only in amounts of
twelve cents or a multiple thereof, but any adjustment which
would change the conversion price by less than twelve cents or a
multiple thereof is to the extent of the difference between the
next multiple thereof and such lesser multiple to be carried
forward and given effect in making future adjustments.
(h) Certificate as to Adjustment of the Conversion Price;
Reservation of Shares. Whenever the amount of Capital Stock
and/or other securities deliverable upon the conversion of the
shares of $1.20 Convertible Preference Stock shall be adjusted
pursuant to the provisions hereof, the Corporation shall
forthwith file at its principal office and with the transfer
agent or agents for the $1.20 Convertible Preference Stock and
for such Capital Stock a statement, signed by the President or
one of the Vice Presidents of the Corporation and by its
Treasurer or one of its Assistant Treasurers, stating the
adjusted amount of its Capital Stock and/or other securities
deliverable per share of $1.20 Convertible Preference Stock
calculated to the nearest one hundredth (1/100th) and setting
forth in reasonable detail the method of calculation and the
facts requiring such adjustment and upon which such calculation
is based. Each adjustment shall remain in effect until a
subsequent adjustment hereunder is required.
The Corporation shall at all times reserve and keep
available out of its authorized but unissued Capital Stock, the
full number of shares of Capital Stock deliverable upon the
conversion of all outstanding shares of $1.20 Convertible
Preference Stock which are convertible into Capital Stock and
upon exercise of any outstanding rights or options to purchase
Capital Stock.
(i) Fractional Shares. In connection with the conversion
of shares of $1.20 Convertible Preference Stock into Capital
Stock, no fractions of shares of $1.20 Convertible Preference
Stock nor of Capital Stock shall be issued; and, in lieu thereof,
non-dividend bearing non-voting scrip (exchangeable when combined
for full shares) may be issued, or the Board of Directors may
make such provisions for the stockholders in lieu of the issue of
scrip as it may determine, including payment in cash or sale of
stock to the extent of any fractions of shares and distribution
of the net proceeds or otherwise. The Board of Directors may
determine and fix the form of such scrip, whether bearer or
otherwise, the denomination thereof, the expiration dates
thereof, any provisions permitting sale of the full shares for
which such scrip is exchangeable for the account of the holder of
such scrip (or in lieu of sale of such full shares, provisions
for the determination of the value thereof, based upon quotations
therefor on the New York Stock Exchange on any specified date or
dates or based upon any other method or methods of determination
of value, and for payment of the value so determined to the
holders of such scrip), and any other terms or provisions of such
scrip as it may deem advisable.
(j) No Reissuance. Converted or redeemed shares of $1.20
Convertible Preference Stock shall become authorized and unissued
shares and subject to the provisions of subsection (k) may be
reissued by the Corporation.
(k) Issuance of Additional $1.20 Convertible Stock. The
Corporation shall not, without the affirmative consent (given in
writing or at a meeting duly called for that purpose) of the
holders of at least two-thirds (2/3rds) of the aggregate number
of shares of $1.20 Convertible Preference Stock then outstanding,
(i) issue additional shares of $1.20 Convertible Preference
Stock, or (ii) amend, alter or repeal this subparagraph (k).
(l) Merger. At the time any of the $1.20 Convertible
Preference Stock is outstanding, the Corporation will not,
without the affirmative consent (given in writing or at a meeting
duly called for that purpose) of the holders of at least two-
thirds (2/3rds) of the aggregate number of shares of $1.20
Convertible Preference Stock then outstanding, at any time during
the conversion period, consolidate or merge with or into another
corporation (whether or not the Corporation is the surviving
corporation), or at any time when the $1.20 Convertible
Preference Stock is not redeemable at the option of the
Corporation, sell all or substantially all of its assets to
another corporation, unless in connection therewith lawful and
adequate provision is made whereby the holders of $1.20
Convertible Preference Stock shall receive the right to convert
during the conversion period into the kind and amount of shares
of stock and other securities to be received by holders of the
number of shares of Capital Stock of the Corporation into which
the $1.20 Convertible Preference Stock might have been converted
immediately prior to such consolidation, merger or sale, which
right shall be subject to adjustment, as nearly equivalent as may
be practicable to the adjustments provided for in this
Subsection C.
SUBSECTION D. SPECIAL PROVISIONS APPLICABLE
TO SERIES B PREFERENCE STOCK
There is hereby established Series B Preference Stock which
shall be designated "$3.20 Cumulative Convertible Preference
Stock, Series B" ("$3.20 Convertible Preference Stock") and shall
consist of 75,813 shares, and no more. The relative,
participating, optional and other special rights and the
qualifications, limitations and restrictions, other than those
specified for all series of Series Preference Stock in
Subsection B of this Section IV, of the $3.20 Convertible
Preference Stock, shall be as follows:
(a) Dividends. The holders of $3.20 Convertible Preference
Stock in preference to the holders of Capital Stock of the
Corporation, shall be entitled to receive, as and when declared
by the Board of Directors, dividends at the rate of $3.20 per
share per annum and no more, payable quarterly on the last days
of March, June, September and December in each year, commencing
on the last day of the quarterly dividend period in which
dividends on such shares commence to accrue. Such preferential
dividends shall accrue, with respect to shares of $3.20
Convertible Preference Stock issued in exchange for shares of
$3.20 Cumulative Convertible Preference Stock of AMK pursuant to
the Agreement of Merger, from the beginning of the quarterly
dividend period which immediately precedes the Effective Date,
and shall be cumulative so that if dividends in respect of any
quarterly dividend period at the rate of $3.20 per share per
annum shall not have been paid upon or declared and set apart for
the $3.20 Convertible Preference Stock, the deficiency shall be
fully paid or declared and set apart before any dividend shall be
paid upon or declared or set apart for the Capital Stock.
Preferential dividends on the $3.20 Convertible Preference Stock
shall be deemed to accrue from day to day. A quarterly dividend
period shall begin on the day following each dividend payment
date set forth above and end on the next succeeding dividend
payment date.
(b) Liquidation. The $3.20 Convertible Preference Stock
shall be preferred as to assets over the Capital Stock, so that
in the event of the liquidation, dissolution or winding up of the
Corporation, the holders of $3.20 Convertible Preference Stock
shall be entitled to have set apart for them, or to be paid, out
of the assets of the Corporation before any distribution is made
to or set apart for the holders of Capital Stock, an amount in
cash equal to and in no event more than (i) $100.00 per share
plus a sum equal to accrued and unpaid dividends thereon, whether
or not earned or declared, in the event of an involuntary
liquidation, dissolution or winding up, or (ii) $103.20 per share
plus a sum equal to accrued and unpaid dividends thereon, whether
or not earned or declared, in the event of a voluntary
liquidation, dissolution or winding up on or prior to
December 29, 1972 (the "Date"), or (iii) the then applicable
redemption price per share, in the event of a voluntary
liquidation, dissolution or winding up on or subsequent to the
Date.
(c) Redemption. At the option of the Corporation, by vote
of the Board of Directors, the $3.20 Convertible Preference Stock
may be redeemed on or after, but not prior to, the Date, as a
whole, or in part, at any time or from time to time, at a
redemption price hereinafter specified. The redemption price of
shares of $3.20 Convertible Preference Stock redeemed during the
twelve month period commencing on the Date shall be $103.20 per
share plus an amount equal to accrued and unpaid dividends
thereon to the date fixed for redemption, whether or not earned
or declared, and for shares of such Stock redeemed thereafter
shall be (i) the greater of (x) $103.20 per share minus the sum
of forty cents for each anniversary of the Date during the period
after the Date and up to and including the date fixed for
redemption or (y) $100.00 per share, plus (ii) an amount equal to
accrued and unpaid dividends thereon to the date fixed for
redemption, whether or not earned or declared.
If less than all of the outstanding shares of $3.20
Convertible Preference Stock are to be redeemed, the shares to be
redeemed shall be determined by lot in such usual manner and
subject to such regulations as the Board of Directors in its sole
discretion shall prescribe.
At least 30 days prior to the date fixed for the redemption
of shares of the $3.20 Convertible Preference Stock a written
notice shall be mailed to each holder of record of shares of
$3.20 Convertible Preference Stock to be redeemed in a postage
prepaid envelope addressed to such holder at his post office
address as shown on the records of the Corporation, notifying
such holder of the election of the Corporation to redeem such
shares, stating the date fixed for redemption thereof
(hereinafter referred to as the redemption date), and calling
upon such holder to surrender to the Corporation on the
redemption date at the place designated in such notice his
certificate or certificates representing the number of shares
specified in such notice of redemption.
On or after the redemption date each holder of shares of
$3.20 Convertible Preference Stock to be redeemed shall present
and surrender his certificate or certificates for such shares to
the Corporation at the place designated in such notice and
thereupon the redemption price of such shares shall be paid to or
on the order of the person whose name appears on such certificate
or certificates as the owner thereof and each surrendered
certificate shall be canceled.
In case less than all the shares represented by any such
certificate are redeemed, a new certificate shall be issued
representing the unredeemed shares.
From and after the redemption date (unless default shall be
made by the Corporation in payment of the redemption price) all
dividends on the shares of $3.20 Convertible Preference Stock
designated for redemption in such notice shall cease to accrue,
and all rights of the holders thereof as stockholders of the
Corporation, except the right to receive the redemption price
thereof upon the surrender of certificates representing the same,
shall cease and determine and such shares shall not thereafter be
transferred (except with the consent of the Corporation) on the
books of the Corporation, and such shares shall not be deemed to
be outstanding for any purpose whatsoever.
At its election the Corporation prior to the redemption date
may deposit the redemption price of the shares of $3.20
Convertible Preference Stock so called for redemption in trust
for the holders thereof with a bank or trust company (having a
capital and surplus of not less than $5,000,000) in the Borough
of Manhattan, City and State of New York, or in any other city in
which the Corporation at the time shall maintain a transfer
agency with respect to such stock, in which case such redemption
notice shall state the date of such deposit, shall specify the
office of such bank or trust company as the place of payment of
the redemption price, and shall call upon such holders to
surrender the certificates representing such shares at such price
on or after the date fixed in such redemption notice (which shall
not be later than the redemption date) against payment of the
redemption price. From and after the making of such deposit, the
shares of $3.20 Convertible Preference Stock so designated for
redemption shall not be deemed to be outstanding for any purpose
whatsoever, and the rights of the holders of such shares shall be
limited to the right to receive the redemption price of such
shares, without interest, upon surrender of the certificates
representing the same to the Corporation at said office of such
bank or trust company, and the right of conversion (on or before
the tenth day prior to the date fixed for redemption) herein
provided. Any funds so deposited which shall not be required for
such redemption because of the exercise of such right of
conversion after the date of such deposit shall be returned to
the Corporation forthwith. Any interest accrued on such funds
shall be paid to the Corporation from time to time.
Any moneys so deposited which shall remain unclaimed by the
holders of such $3.20 Convertible Preference Stock at the end of
six years after the redemption date, shall be returned by such
bank or trust company to the Corporation after which the holders
of the $3.20 Convertible Preference Stock shall have no further
interest in such moneys.
(d) Vote. Each holder of $3.20 Convertible Preference
Stock shall be entitled to one vote for each share held on each
matter submitted to a vote of stockholders of the Corporation
and, except as otherwise herein or by law provided, the $3.20
Convertible Preference Stock, the Capital Stock of the
Corporation, and any other capital stock of the Corporation at
the time entitled thereto, shall vote together as one class,
except that while the holders of $3.20 Convertible Preference
Stock, voting as a class, are entitled to elect two directors as
hereinafter provided, they shall not be entitled to participate
with the Capital Stock (or any other capital stock as aforesaid)
in the election of any other directors.
(e) Class Voting. In case at any time the equivalent of
six or more full quarterly dividends (whether consecutive or not)
on the $3.20 Convertible Preference Stock shall be in arrears,
then during the period (hereinafter in this subparagraph (e)
called the Class Voting Period) commencing with such time and
ending with the time when all arrears in dividends on the $3.20
Convertible Preference Stock shall have been paid and the full
dividend on the $3.20 Convertible Preference Stock for the then
current quarterly dividend period shall have been paid or
declared and set apart for payment, at any meeting of the
stockholders of the Corporation held for the election of
directors during the Class Voting Period, the holders of $3.20
Convertible Preference Stock represented in person or by proxy at
said meeting shall be entitled, as a class, to the exclusion of
the holders of all other classes of stock of the Corporation, to
elect two directors of the Corporation, each share of $3.20
Convertible Preference Stock entitling the holder thereof to one
vote.
Any director who shall have been elected by holders of $3.20
Convertible Preference Stock or any director elected by the
remaining director as provided in the next sentence, may be
removed at any time during a Class Voting Period, either for or
without cause, by, and only by, the affirmative votes of the
holders of record of a majority of the outstanding shares of
$3.20 Convertible Preference Stock given at a special meeting of
such stockholders called for the purpose and any vacancy thereby
created may be filled during such Class Voting Period by the
holders of $3.20 Convertible Preference Stock, present in person
or represented by proxy at such meeting. In the event that any
director elected by the holders of the $3.20 Convertible
Preference Stock (or any director elected pursuant to the
provisions of this sentence) dies, resigns or otherwise ceases to
be a director, the remaining director may elect a successor;
provided, however, that the foregoing shall not apply to a
vacancy created by the removal of a director by the holders of
$3.20 Convertible Preference Stock as provided in the preceding
sentence. At the end of the Class Voting Period the holders of
$3.20 Convertible Preference Stock shall be automatically
divested of all voting power vested in them under this
subparagraph (e) but subject always to the subsequent vesting
hereunder of voting power in the holders of $3.20 Convertible
Preference Stock in the event of any similar default or defaults
thereafter. The term of all directors elected pursuant to the
provisions of this subparagraph (e) shall in all events expire at
the end of the Class Voting Period.
(f) Conversion. Each share of the $3.20 Convertible
Preference Stock may be converted, at the option of the holder
thereof, at any time (but in case the same shall be called for
redemption, only until the close of business on the tenth day
prior to the date fixed for the redemption thereof) into three
and six tenths (3.6) fully paid and non-assessable shares of
Capital Stock of the Corporation, the respective number of shares
of Capital Stock in any case being subject to adjustment,
however, as hereinafter in subparagraph (g) provided. Upon any
such conversion of shares of $3.20 Convertible Preference Stock
no allowance or adjustment shall be made with respect to
dividends upon either class of stock.
Such option to convert shares of $3.20 Convertible
Preference Stock into shares of Capital Stock may be exercised
by, and only by, surrendering for such purpose to the Corporation
at the office of any of its Transfer Agents for its Capital Stock
for the time being, located in the City of New York or in any
other city in which the Corporation at the time shall maintain a
transfer agency with respect to such stock, certificates
representing the shares to be converted, duly endorsed or
accompanied by proper instruments of transfer, together with a
written request for conversion. At the time of such surrender,
the person exercising such option to convert shall be deemed to
be the holder of the shares of Capital Stock issuable upon such
conversion, notwithstanding that the stock transfer books of the
Corporation may then be closed or that certificates representing
such shares of Capital Stock shall not then be actually delivered
to such person.
The term "Capital Stock" as used in this Subsection D shall
be deemed to include stock of the Corporation of every class,
except stock which shall be preferred as to dividends or assets
over the Capital Stock of the Corporation or which shall not
participate equally, share for share, with such Capital Stock in
earnings or assets remaining after payment in full of the
preferential amounts of dividends or assets to which such stock
shall be entitled; provided, however, that the shares of Capital
Stock into which shares of the $3.20 Convertible Preference Stock
shall be convertible, shall be shares of Capital Stock of the
character authorized at the date of the initial issuance of the
$3.20 Convertible Preference Stock or, in case of a
reclassification or exchange of such Capital Stock, shares of the
stock into or for which such Capital Stock shall be reclassified
or exchanged and all provisions of this Subsection D shall be
applied appropriately thereto and to any stock resulting from any
subsequent reclassification or exchange thereof.
(g) Anti-Dilution. The number of shares of Capital Stock
into which each share of $3.20 Convertible Preference Stock may
be converted shall be subject to adjustment from time to time in
certain instances as follows:
(1) If at any time or from time to time the
outstanding shares of Capital Stock of the Corporation
shall be subdivided or combined into a greater or
smaller number of shares (by way of reclassification or
splitup of shares or in any other manner), then the
number of shares of Capital Stock into which each share
of $3.20 Convertible Preference Stock may, after any
such subdivision or combination becomes effective, be
converted shall be increased or reduced in the same
proportion.
(2) If at any time or from time to time there is
declared on the Capital Stock of the Corporation any
dividend payable in Capital Stock of the Corporation,
then the number of shares of Capital Stock into which
each share of $3.20 Convertible Preference Stock may be
converted on or after the record date fixed for such
dividend shall be increased in the same proportion as
the aggregate number of shares of Capital Stock issued
or to be issued on account of such dividend bears to
the aggregate number of shares of Capital Stock on
which such dividend is or is to be paid.
(3) If the Corporation shall grant the holders of
its Capital Stock, as such, rights to subscribe for
shares of Capital Stock and/or securities convertible
into, exchangeable for, or carrying rights of purchase
of shares of Capital Stock and if (i) the conversion
price (determined by dividing One Hundred Dollars
($100.00) by the number of shares of Capital Stock
deliverable upon conversion of each share of $3.20
Convertible Preference Stock, immediately before the
time herein provided for such adjustment) and (ii) the
"market value per share" of Capital Stock on the first
full business day (excluding any Saturday) after the
last date on which any of such rights to subscribe may
be exercised, shall each exceed the amount payable for
one share of Capital Stock on exercise of such rights
to subscribe, then in each case said conversion price
shall be reduced by "the value of the right to
subscribe", as limited and defined herein, so granted
to the holder of one share of Capital Stock, and the
number of shares of Capital Stock deliverable
thereafter upon conversion of each share of $3.20
Convertible Preference Stock, shall be the quotient
obtained by dividing One Hundred Dollars ($100.00) by
the conversion price so reduced.
The adjustment provided for herein shall be
effective immediately after the close of business on
the day as of which said market value per share of
Capital Stock is taken.
For the purpose of such adjustment, the "value of
the right to subscribe" so granted to the holder of one
share of Capital Stock shall be deemed to be an amount
equal to the quotient obtained by dividing (x) the
excess of said "market value per share" of Capital
Stock or said conversion price immediately before such
reduction, whichever is lower, over the amount payable
for one share of Capital Stock on exercise of such
rights to subscribe by (y) the number of shares of
Capital Stock with respect to which is granted the
right to subscribe for one full share of Capital Stock.
For the purpose of such adjustment, the "market
value per share" of Capital Stock shall be deemed to be
the mean between the high and low sales prices per
share of Capital Stock on the day as of which such
market value is taken (or lacking any sales, the mean
between the closing bid and asked prices on that day)
or, if the New York Stock Exchange is not open on that
day, then on the first full business day (excluding any
Saturday) upon which the New York Stock Exchange is
open immediately following such day. Such sales prices
or such bid and asked prices, as the case may be, shall
be those on the New York Stock Exchange if the Capital
Stock be listed or dealt in thereon at the time, or, if
not listed or dealt in thereon, then those on such
exchange as shall have been selected from time to time
by the Corporation for the purpose or, if not listed or
dealt in on any exchange, then those furnished by the
trading department of any New York Stock Exchange firm
selected from time to time by the Corporation for the
purpose and deemed by it to be reliable.
For the purpose of such adjustment in case of such
granting of rights to subscribe for securities
convertible into, exchangeable for, or carrying rights
of purchase of, shares of Capital Stock, (i) the holder
of one share of Capital Stock shall be deemed to have
been granted a right to subscribe for such number of
shares of Capital Stock as shall be deliverable upon
exercise of the rights of conversion, exchange or
purchase of all of the securities for which such holder
is granted rights to subscribe, (ii) the last date on
which any rights to subscribe for shares of Capital
Stock (so deemed to have been granted) may be exercised
shall be deemed to be the last date on which any of the
aforesaid rights may be exercised to subscribe for such
securities convertible into, exchangeable for, or
carrying rights of purchase of, shares of Capital
Stock, and (iii) the amount payable for one share of
Capital Stock on exercise of a right to subscribe for
shares of Capital Stock (so deemed to have been
granted) shall be deemed to be the sum of (x) the
consideration payable to the Corporation for such
number of such securities as are convertible into or
exchangeable for one full share of Capital Stock, (y)
in the case of securities carrying such rights, the
amount (if any) by which the consideration payable to
the Corporation for such number of such securities as
carry rights to purchase one full share of Capital
Stock shall exceed the distributive amount, if any
(excluding any sums with respect to accrued dividends)
payable on voluntary liquidation of the Corporation
with respect to such securities, if stock, or, if not
stock, the principal amount of such securities, and
(z) any additional amount thereafter payable to the
Corporation for one full share of Capital Stock upon
the exercise of such rights of conversion, exchange or
purchase.
(4) No adjustment in the conversion prices
resulting from the application of the foregoing
provisions of clause (3) of subparagraph (g) is to be
given effect unless, by making such adjustments, the
conversion price in effect immediately prior to such
adjustment would be changed by thirty cents or more,
and such adjustments shall be made only in amounts of
thirty cents or a multiple thereof, but any adjustment
which would change the conversion price by less than
thirty cents or a multiple thereof is to the extent of
the difference between the next multiple thereof and
such lesser multiple to be carried forward and given
effect in making future adjustments.
(h) Certificate as to Adjustment of the Conversion Rate;
Reservation of Shares. Whenever the amount of Capital Stock
and/or other securities deliverable upon the conversion of the
shares of $3.20 Convertible Preference Stock shall be adjusted
pursuant to the provisions hereof, the Corporation shall
forthwith file at its principal office and with the transfer
agent or agents for the $3.20 Convertible Preference Stock and
for such Capital Stock a statement, signed by the President or
one of the Vice Presidents of the Corporation and by its
Treasurer or one of its Assistant Treasurers, stating the
adjusted amount of its Capital Stock and/or other securities
deliverable per share of $3.20 Convertible Preference Stock
calculated to the nearest one hundredth (1/100th) and setting
forth in reasonable detail the method of calculation and the
facts requiring such adjustment and upon which such calculation
is based. Each adjustment shall remain in effect until a
subsequent adjustment hereunder is required.
The Corporation shall at all times reserve and keep
available out of its authorized but unissued Capital Stock, the
full number of shares of Capital Stock deliverable upon the
conversion of all outstanding shares of $3.20 Convertible
Preference Stock which are convertible into Capital Stock and
upon exercise of any outstanding rights or options to purchase
Capital Stock.
(i) Fractional Shares. In connection with the conversion
of shares of $3.20 Convertible Preference Stock into Capital
Stock, no fractions of shares of $3.20 Convertible Preference
Stock nor of Capital Stock shall be issued; and, in lieu thereof,
non-dividend bearing non-voting scrip (exchangeable when combined
for full shares) may be issued, or the Board of Directors may
make such provisions for the stockholders in lieu of the issue of
scrip as it may determine, including payment in cash or sale of
stock to the extent of any fractions of shares and distribution
of the net proceeds or otherwise. The Board of Directors may
determine and fix the form of such scrip, whether bearer or
otherwise, the denomination thereof, the expiration dates
thereof, any provisions permitting sale of the full shares for
which such scrip is exchangeable for the account of the holder of
such scrip (or in lieu of sale of such full shares, provisions
for the determination of the value thereof, based upon quotations
therefor on the New York Stock Exchange on any specified date or
dates or based upon any other method or methods of determination
of value, and for payment of the value so determined to the
holders of such scrip), and any other terms or provisions of such
scrip as it may deem advisable.
(j) No Reissuance. Converted and redeemed shares of $3.20
Convertible Preference Stock shall become authorized and unissued
shares and subject to the provisions of subsection (k) may be
reissued by the Corporation.
(k) Merger. At the time any of the $3.20 Convertible
Preference Stock is outstanding, the Corporation will not,
without the affirmative consent (given in writing or at a meeting
duly called for that purpose) of the holders of at least
two-thirds (2/3rds) of the aggregate number of shares of $3.20
Convertible Preference Stock then outstanding, at any time during
the conversion period, consolidate or merge with or into another
corporation (whether or not the Corporation is the surviving
corporation), or at any time when the $3.20 Convertible
Preference Stock is not redeemable at the option of the
Corporation, sell all or substantially all of its assets to
another corporation, unless in connection therewith lawful and
adequate provision is made whereby the holders of $3.20
Convertible Preference Stock shall receive the right to convert
during the conversion period into the kind and amount of shares
of stock and other securities to be received by holders of the
number of shares of Capital Stock of the Corporation into which
the $3.20 Convertible Preference Stock might have been converted
immediately prior to such consolidation, merger or sale, which
right shall be subject to adjustment, as nearly equivalent as may
be practicable to the adjustments provided for in this
Subsection D.
SUBSECTION E. NO PRE-EMPTIVE RIGHTS
No shareholder of the Corporation, by reason of his holding
shares of any class of the capital stock of the Corporation,
shall have any pre-emptive or preferential right to subscribe for
or purchase any shares of (1) any class whatsoever which the
Corporation may hereafter issue or sell, or (2) any obligations
or securities which the Corporation may hereafter issue or sell,
convertible into or exchangeable for or exchanged for, any shares
of the Corporation of any class, or (3) any warrants or options
which the corporation may hereafter issue or sell which shall
confer upon the holder or owner thereof the right to subscribe
for or purchase from the Corporation any of its shares of any
class.
SECTION V
The number of directors constituting Corporation's current
Board of Directors is fifteen (15). The names and business
office addresses of the persons currently serving as said
directors are set forth below:
Name Address
E.M. Black 245 Park Avenue, New York, New York
Morton H. Broffman 208 South LaSalle Street, Chicago, Illinois
John M. Fox Prudential Center, Boston, Mass.
M. Robert Gallop 330 Madison Avenue, New York, New York
George P. Gardner, Jr. 24 Federal Street, Boston, Mass.
Richard D. Hill 67 Milk Street, Boston, Mass.
Maurice C. Kaplan 245 Park Avenue, New York, New York
Samuel D. Lunt 120 Broadway, New York, New York
Joseph M. McDaniel, Jr. 44 East 63rd Street, New York, New York
William B. Mason Prudential Center, Boston, Mass.
Richard M. Nichols 28 State Street, Boston, Mass.
Norman I. Schafler Boston Post Road, Old Greenwich, Conn.
David W. Wallace Greenwich Plaza, Greenwich, Conn.
Thomas K. Warner 245 Park Avenue, New York, New York
Jay Wells 200 Park Avenue, New York, New York
SECTION VI
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, arbitrative
or investigative (whether or not 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,
trustee, employee or agent of another corporation, partnership or
joint venture, trust or other enterprise, shall be entitled to be
indemnified by the Corporation to the full extent now or here-
after permitted by law against reasonable costs, disbursements
and counsel fees and amounts paid or incurred in satisfaction of
settlements, judgments, fines and penalties incurred by him in
connection with such action, suit or proceeding. Any such person
who was a director of AMK Corporation prior to its merger with
the Corporation shall be entitled to be indemnified by the
Corporation on the same basis and subject to the same terms and
conditions with respect to any such action, suit or proceeding by
reason of the fact that he was a director, officer, employee or
agent of AMK Corporation or was serving at the request of AMK
Corporation as a director, officer, trustee, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise. Such right of indemnification shall continue as to a
person who has ceased to be a director, officer, employee,
trustee or agent and shall inure to the benefit of the heirs,
executor or administrator of such a person. The indemnification
provided by this Section VI shall not exclude any other rights to
which any such person may otherwise be entitled by agreement,
vote of stockholders or otherwise.
SECTION VII
(1) The number of directors at any time may be increased or
decreased by vote of the Board of Directors and in case of any
such increase the Board of Directors shall have power to elect
such additional directors to hold office until the next meeting
of shareholders or until their successors shall be elected.
(2) The Board of Directors from time to time shall
determine whether and to what extent and at what time and places
and under what conditions and regulations the accounts and books
of the Corporation or any of them shall be open to the inspection
of the shareholders and no shareholder shall have any right of
inspecting any account or book or document of the Corporation
except as conferred by statute or authorized by the Board of
Directors or by a resolution of the shareholders.
(3) Subject to provisions that may be included in the
By-Laws of the Corporation, any action required or permitted by
law, by this Certificate of Incorporation or the By-Laws of the
Corporation to be taken at a meting of shareholders may, to the
extent permitted by law, be taken without a meeting upon the
written consent of shareholders who would be entitled to cast at
least the minimum number of votes which would be required to take
such action at a meeting at which all shareholders entitled to
vote thereon are present.
(4) The Board of Directors, by the affirmative vote of a
majority of the directors in office, may remove a director or
directors for cause where, in the judgment of such majority, the
continuation of the director or directors in office would be
harmful to the Corporation and may suspend the director or
directors for a reasonable period pending final determination
that cause exists for such removal.
(5) The Board of Directors shall have power to loan money
to, or guarantee an obligation of, or otherwise assist any
officer or other employee of the Corporation or of any
subsidiary, including an officer or employee who is also a
director of the Corporation, whenever, in the judgment of the
Board of Directors, such loan, guarantee or assistance may
reasonably be expected to benefit the Corporation.
(6) Except as otherwise provided by statute, by this
Certificate of Incorporation or by the By-Laws of the
Corporation, all corporate powers may be exercised by the Board
of Directors. Without limiting the foregoing, the Board of
Directors shall have power, without shareholder action:
(a) To authorize the Corporation to purchase,
acquire, hold, lease, mortgage, pledge, sell and convey
such property, real, personal and mixed, without as
well as within the State of New Jersey, as the Board of
Directors may from time to time determine, and in
payment for any property to issue, or cause to be
issued, shares of the Corporation, or bonds,
debentures, notes or other obligations or evidences of
indebtedness thereof secured by pledge, security
interest or mortgage, or unsecured.
(b) To authorize the borrowing of money; the
issuance of bonds, debentures, notes and other
obligations or evidences of indebtedness of the
Corporation, secured or unsecured, and the inclusion of
provisions as to redeemability and convertibility into
shares of the Corporation or otherwise; and, as
security for money borrowed or bonds, debentures, notes
and other obligations or evidences of indebtedness
issued by the Corporation, the mortgaging or pledging
of any property, real, personal, or mixed, then owned,
or thereafter acquired by the Corporation.
IN WITNESS WHEREOF, UNITED BRANDS COMPANY has made this
Certificate under the signature of its ________ President this
30th day of June, 1970.
UNITED BRANDS COMPANY
By /s/ John M. Fox
--------------------------------
Name: John M. Fox
----------------------------
Capacity: President
------------------------
STATE OF NEW JERSEY
DEPARTMENT OF STATE
I, the Secretary of State of the State of New Jersey, DO
HEREBY CERTIFY that the foregoing is a true copy of Certificate
of Incorporation (Restated) of UNITED BRANDS COMPANY, as the same
is taken from and compared with the original filed in my office
on the 30th day of June A.D. 1970, and now remaining on file and
of record therein.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
affixed my Official Seal at Trenton, this _____ day of
_____________ A.D. 19__.
______________________________
Secretary of State
UNITED BRANDS COMPANY
CERTIFICATE OF RESTATEMENT
OF
CERTIFICATE OF INCORPORATION
UNITED BRANDS COMPANY hereby certifies that:
1. The name of the corporation is UNITED BRANDS
COMPANY.
2. Attached hereto is the restated Certificate of
Incorporation of United Brands Company which restates and
integrates in a single certificate the provisions of the
Company's certificate of incorporation as amended at or prior to
11:59 P.M. Eastern Daylight Savings Time on June 30, 1970,
without further amending the same.
3. Said restated Certificate of Incorporation was
duly adopted by the Board of Directors at a meeting of said Board
held on June 19, 1970, at which a quorum was present and acting
throughout.
4. Said restated Certificate of Incorporation shall
become effective at 12:01 A.M. Eastern Daylight Savings Time on
July 1, 1970.
IN WITNESS WHEREOF, United Brands Company has made this
certificate under its seal and the signature of its President
this 30th day of June, 1970.
UNITED BRANDS COMPANY
By /s/ John M. Fox
---------------------------
Name: John M. Fox
------------------------
Capacity: President
--------------------
CERTIFICATE OF MERGER
OF
c-N-k CORPORATION
CAPE FARMS, INC.
CHIPPER CORPORATION
FARM PRODUCTION CORPORATION
LANTANA FLOWER FARMS, INC.
INTO
UNITED BRANDS COMPANY
To: The Secretary of State
State of New Jersey
Pursuant to the provisions of Title 14A of the Revised
Statutes of New Jersey, the undersigned corporation hereby
executes the following Certificate of Merger.
1. United Brands Company, a corporation organized and
existing under the laws of the State of New Jersey, and owing all
of the outstanding shares of each class and series of Lantana
Flower Farms, Inc., Farm Production Corporation, c-N-k
Corporation, Chipper Corporation and Cape Farms, Inc., its
subsidiary corporations organized and existing under the laws of
the State of Florida, the provisions of which permit the merger
the merger of a corporation of another state and a corporation
organized and existing under the laws of said state, hereby
agrees to the merger of those subsidiary corporations into United
Brands Company which is hereinafter designated as the surviving
corporation.
The total authorized capital stock of the surviving
corporation shall be those shares, itemized by classes, par value
of shares, shares without par value, and series, if any, within a
class as follows:
$3 Convertible Preferred Stock 46,028 shares without par value
1.20 Series A Cumulative
Convertible Preference Stock 4,000,000 shares without par value
3.20 Series B Cumulative
Convertible Preference Stock 75,813 shares without par value
Capital Stock 45,000,000 shares, $1.00 par value
The address of the surviving corporation's registered
office is 15 Exchange Place, Jersey City, New Jersey 07302, and
the name of its registered agent at such address is Corporation
Trust Company.
2. The plan of merger, attached hereto, was approved
by the board of directors of the undersigned corporation.
3. The number of outstanding shares of each class and
series of the subsidiary corporations, parties to the merger and
the number of such shares of each class and series owned by the
parent corporation is as follows:
Number of Shares Number of Shares
Name of Subsidiary Class Outstanding Owned by Parent
- -----------------------------------------------------------------
c-N-k Corporation Common 787 787
Cape Farms, Inc. Common 5,000 5,000
Chipper Corporation Common 50 50
Farm Production
Corporation Common 5,000 5,000
Lantana Flower
Farms, Inc. Common 787 787
4. United Brands Company, the surviving corporation
to this merger, agrees that:
1. It may be served with process in the State of New
Jersey in any proceeding for the enforcement of any
obligation of any corporation organized under the laws of
the State of New Jersey or any foreign corporation,
previously amenable to suit in New Jersey, which is a party
to the merger and in any proceeding for the enforcement of
the rights of a dissenting shareholder of any such
corporation organized under the laws of the State of New
Jersey against the surviving corporation; and,
2. The Secretary of State of the State of New Jersey
shall be and hereby is irrevocably appointed as the agent of
the surviving corporation to accept service of process in
any such proceedings; the post office address to which the
service of process in any such proceeding shall be mailed is
Prudential Center, Boston, Massachusetts 02199.
5. The effective date of this Certificate shall be
November 30, 1970.
IN WITNESS WHEREOF the undersigned corporation has
caused this Certificate of Merger to be executed in its name by
its Vice President as of the 23rd day of October 1970.
UNITED BRANDS COMPANY
By /s/ W. B. Mason
--------------------------------
William B. Mason, Vice President
Subscribed and sworn to before me
this 23 day of October, 1970
/s/ Richard E. Enright, Jr.
- -------------------------------------
Richard E. Enright, Jr. Notary Public
My commission expires May 21, 1976
AGREEMENT OF MERGER
AGREEMENT OF MERGER made and entered into, this 1st day of
November, 1970, by and between United Brands Company, a
corporation organized and existing under the laws of the State of
New Jersey, and a majority of the directors thereof, parties of
the first part, c-N-k Corporation, a corporation organized and
existing under the laws of the State of Florida and a majority of
the directors thereof, parties of the second part, Cape Farms,
Inc., a corporation organized and existing under the laws of the
State of Florida and a majority of the directors thereof, parties
of the third part, Chipper Corporation, a corporation organized
and existing under the laws of the State of Florida and a
majority of the directors thereof, parties of the fourth part,
Farm Production Corporation, a corporation organized and existing
under the laws of the State of Florida and a majority of the
directors thereof, parties of the fifth part, and Lantana Flower
Farms, Inc., a corporation organized and existing under the laws
of the State of Florida and a majority of the directors thereof,
parties of the sixth part.
WHEREAS, said United Brands Company, party of the first
part, has authorized, issued and outstanding stock itemized by
class, par value of shares, shares without par value and series
within the class is as follows:
Authorized Issued & Class of Stock
Shares Outstanding and Series Par Value
- -----------------------------------------------------------------
46,028 44,438 $3 Convertible Preferred Without par
Stock value
4,000,000 2,420,406 1.20 Series A Cumulative Without par
Convertible Preference value
Stock
75,813 74,604 3.20 Series B Cumulative Without par
Convertible Preference value
Stock
45,000,000 12,381,029 Capital Stock $1.00 par
value
WHEREAS, said c-N-k Corporation, party of the second part,
was incorporated and is existing under the laws of the State of
Florida and has a maximum amount of capital stock, which it is
authorized to have outstanding, of 1,000 shares of Common stock
having a par value of Ten Dollars ($10.00) each, of which capital
stock, 787 shares of said Common stock are now issued and
outstanding; and
WHEREAS, said Cape Farms, Inc., party of the third part, was
incorporated and is existing under the laws of the State of
Florida and has a maximum amount of capital stock, which it is
authorized to have outstanding, of 5,000 shares of Common stock
having a par value of One Dollar ($1.00) each, or which capital
stock, 5,000 shares of said Common stock are now issued and
outstanding; and
WHEREAS, said Chipper Corporation, party of the fourth part,
was incorporated and is existing under the laws of the State of
Florida and has a maximum amount of capital stock, which it is
authorized to have outstanding, of 50 shares of Common stock
without nominal or par value of which capital stock, 50 shares of
said Common stock are now issued and outstanding; and
WHEREAS, said Farm Production Corporation, party of the
fifth part, was incorporated and is existing under the laws of
the State of Florida and has a maximum amount of capital stock,
which it is authorized to have outstanding, of 5,000 shares of
Common stock having a par value of One Dollar ($1.00) each, of
which capital stock, 5,000 shares of said Common stock are now
issued and outstanding; and
WHEREAS, said Lantana Flower Farms, Inc., party of the sixth
part, was incorporated and is existing under the laws of the
State of Florida and has a maximum amount of capital stock, which
it is authorized to have outstanding, of 1,000 shares of Common
stock having a par value of Fifty Dollars ($50.00) each, of which
capital stock, 787 shares of said Common stock are now issued and
outstanding; and
WHEREAS, the principal office in the State of Florida of
United Brands Company, the party of the first part, is located at
1111 South Bayshore Drive, in the City of Miami, County of Dade,
and the principal office of c-N-k Corporation, the party of the
second part, is located at 7001 Lantana Road, in the City of
Lantana, County of Palm Beach, State of Florida, and the
principal office of Cape Farms, Inc., the party of the third
part, is located at 255 University Drive, in the City of Coral
Gables, County of Dade, State of Florida, and the principal
office of Chipper Corporation, the party of the fourth part, is
located at 255 University Drive, in the City of Coral Gables,
County of Dade, State of Florida, and the principal office of
Farm Production Corporation, the party of the fifth part, is
located at 255 University Drive, in the City of Coral Gables,
County of Dade, State of Florida, and the principal office of
Lantana Flower Farms, Inc., the party of the sixth part, is
located at 7001 Lantana Road, in the City of Lantana, County of
Palm Beach, State of Florida; and
WHEREAS, the Board of Directors of each of the corporations,
parties hereto, to the end that greater efficiency and economy in
the management of the business carried on by each corporation may
be accomplished, deem it advisable and generally to the advantage
and welfare of said corporations and their respective
stockholders that such corporations merge into United Brands
Company as the Surviving Corporation, under and pursuant to the
provisions of the law of the State of Florida and the law of the
State of New Jersey.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants, agreements, provisions and grants hereinafter
contained the corporations, parties to this agreement, by and
between their respective board of directors have agreed and do
hereby agree each with the other that pursuant to the provisions
of the law of the State of Florida and the law of the State of
New Jersey, United Brands Company, the party of the first part,
c-N-k Corporation, party of the second part, Cape Farms, Inc.,
the party of the third part, Chipper Corporation, the party of
the fourth part, Farm Production Corporation, the party of the
fifth part, and Lantana Flower Farms, Inc., the party of the
sixth part, do hereby agree as follows:
1. United Brands Company, party of the first part, does
hereby merge c-N-k Corporation, party of the second part, Cape
Farms, Inc., party of the third part, Chipper Corporation, party
of the fourth part, Farm Production Corporation, party of the
fifth part, and Lantana Flower Farms, Inc., party of the sixth
part, with and into itself, and c-N-k Corporation; party of the
second part, Cape Farms, Inc., party of the third part, Chipper
Corporation, party of the fourth part, Farm Production
Corporation, party of the fifth part, and Lantana Flower Farms,
Inc., party of the sixth part, shall be merged with and into
United Brands Company, the party of the first part.
2. United Brands Company, the party of the first part,
shall be the Surviving Corporation and shall continue to exist as
a domestic corporation under the laws of New Jersey. The
Articles of Incorporation as amended and By-Laws of United Brands
Company, party of the first part, shall continue as the Articles
of Incorporation and By-Laws of the Surviving Corporation.
3. The Directors of United Brands Company, party of the
first part, shall continue as the Directors of the Surviving
Corporation.
4. All shares of authorized and outstanding capital stock
of c-N-k Corporation, party of the second part, Cape Farms, Inc.,
party of the third part, Chipper Corporation, party of the fourth
part, Farm Production Corporation, party of the fifth part, and
Lantana Flower Farms, Inc., party of the sixth part, such stock
being owned in its entirety by United Brands Company, party of
the first part, and all rights in respect thereof, shall be
canceled forthwith on the effective date of the merger, and the
certificates representing such shares shall be surrendered and
canceled.
5. On or after the effective date of this contemplated
merger c-N-k Corporation, party of the second part, Cape Farms,
Inc., party of the third part, Chipper Corporation, party of the
fourth part, Farm Production Corporation, party of the fifth
part, and Lantana Flower Farms, Inc., party of the sixth part
shall cease to exist. Their property shall become the property
of United Brands Company, party of the first part, as the
Surviving Corporation. The Surviving Corporation shall possess
all the rights, privileges, powers and franchises as well of a
public nature as of a private nature, and be subject to all the
restrictions, disabilities and duties of each of said
corporations so merged, and all and singular, the rights,
privileges, powers and franchises of each of said corporations,
and all property, real, personal and mixed, and all debts due to
any of said corporations on whatever account, as well for stock
subscriptions as all other things in action or belonging to each
of said corporations shall be vested in the corporation; and all
property, rights, privileges, powers and franchises, and all and
every other interest shall be thereafter as effectually the
property of the corporation as they were of the several and
respective constituent corporations, and the title to any real
estate, whether by deed or otherwise, under the laws of the State
of Florida, vested in any of said corporations shall not revert
or be in any way impaired by reason of said merger provided, that
all rights of creditors and all liens upon the property of any of
said corporations shall be preserved unimpaired, and all debts,
liabilities and duties of said constituent corporations shall
thenceforth attach to the corporation, and may be enforced
against it to the same extent as if said debts, liabilities and
duties had been incurred or contracted by it.
6. This Agreement shall be filed as required by the
provisions of the Florida Statutes, and shall be effective
November 30, 1970.
IN WITNESS WHEREOF, a majority of the directors of United
Brands Company, party of the first part, and a majority of the
directors of c-N-k Corporation, party of the second part, a
majority of the directors of Cape Farms, Inc., party of the third
part, a majority of the directors of Chipper Corporation, party
of the fourth part, a majority of the directors of Farm
Production Corporation, party of the fifth part, and a majority
of the directors of Lantana Flower Farms, Inc., party of the
sixth part, being each of the parties to this Agreement, have,
this 1st day of November, 1970, signed this Agreement of Merger
under the corporate seals of said corporations.
/s/ Eli M. Black
------------------------------
/s/ John M. Fox
------------------------------
/s/ W. B. Mason
------------------------------
/s/ G. P. Gardner, Jr.
------------------------------
/s/ Richard D. Hill
------------------------------
/s/ M.C. Kaplan
------------------------------
Signed, sealed and delivered
in the presence of:
/s/ M. Robert Gallop
/s/ James A. MacKenzie ------------------------------
- ------------------------------
/s/ Thomas K. Warner
------------------------------
/s/ Samuel D. Lunt
------------------------------
A Majority of the Directors of
UNITED BRANDS COMPANY
Signed, sealed and delivered /s/ John M. Fox
in the presence of: ------------------------------
/s/ James A. MacKenzie /s/ W. B. Mason
- ------------------------------ ------------------------------
A Majority of the Directors of
c-N-k CORPORATION
CAPE FARMS, INC.
CHIPPER CORPORATION
FARM PRODUCTION CORPORATION
LANTANA FLOWER FARMS, INC.
I, James A. MacKenzie, Secretary of United Brands Company, a
corporation of the State of New Jersey,
DO HEREBY CERTIFY, in accordance with the provisions of the New
Jersey Statutes, that the foregoing Agreement of Merger, as
approved by vote of the Board of Directors of United Brands
Company on behalf of United Brands Company, and by consent of the
Board of Directors of United Brands Company in its capacity as
sole shareholder of c-N-k Corporation, Cape Farms, Inc., Chipper
Corporation, Farm Production Corporation and Lantana Flower
Farms, Inc., corporations of the State of Florida.
IN WITNESS WHEREOF, I have hereunto signed my name and
affixed the seal of said United Brands Company this 12 day of
November, 1970.
/s/ James A. MacKenzie
------------------------------
James A. MacKenzie, Secretary
UNITED BRANDS COMPANY
I, James A. Mackenzie, Secretary of c-N-k Corporation, Cape
Farms, Inc., Chipper Corporation, Farm Production Corporation and
Lantana Flower Farms, Inc., corporations of the State of Florida,
DO HEREBY CERTIFY, in accordance with the provisions of the
Florida Statutes, that the foregoing Agreement of Merger, as
approved by vote of the Board of Directors of United Brands
Company on behalf of United Brands Company, and by consent of the
Board of Directors of United Brands Company in its capacity as
sole shareholder of c-N-k Corporation, Cape Farms, Inc., Chipper
Corporation, Farm Production Corporation and Lantana Flower
Farms, Inc., corporations of the State of Florida.
IN WITNESS WHEREOF, I have hereunto signed my name and
affixed the seals of said c-N-k Corporation, Cape Farms, Inc.,
Chipper Corporation, Farm Production Corporation and Lantana
Flower Farms, Inc., this 12 day of November, 1970.
/s/ James A. MacKenzie
------------------------------
James A. MacKenzie, Secretary
c-N-k Corporation
Cape Farms, Inc.
Chipper Corporation
Farm Production Corporation
Lantana Flower Farms, Inc.
THE ABOVE AGREEMENT OF MERGER, having been executed by a
majority of the Board of Directors of each of the corporations,
parties thereto, and having been adopted by the stockholders of
each of said corporations, the President and Secretary of each
corporate party hereto, do now hereby execute this Agreement of
Merger under the corporate seals of their respective
corporations, by authority of the directors and stockholders
thereof, as the respective act, deed and agreement of each of
said corporations, on this 11 day of November, 1970.
UNITED BRANDS COMPANY
By /s/ G. Burke Wright
----------------------------
Vice President
By /s/ James A. MacKenzie
----------------------------
James A. MacKenzie
Secretary
c-N-k CORPORATION
CAPE FARMS, INC.
CHIPPER CORPORATION
FARM PRODUCTION CORPORATION
LANTANA FLOWER FARMS, INC.
By /s/ William B. Mason
----------------------------
William B. Mason, President
By /s/ James A. MacKenzie
----------------------------
James A. MacKenzie,
Secretary
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION (RESTATED)
OF
UNITED BRANDS COMPANY
United Brands Company, a corporation organized under
the laws of the State of New Jersey (the "Corporation") hereby
certifies:
(1) That the name of the Corporation is United Brands
Company.
(2) That at a meeting of the Board of Directors of the
Corporation, at which a quorum was present and acting throughout,
the Board of Directors adopted the following resolutions
proposing and declaring advisable certain amendments to the
Certificate of Incorporation (Restated) of the Corporation:
FIRST. That Section IV of the Certificate of
Incorporation (Restated) of the Corporation be amended to
authorize a new class of 10 million shares of $1.00 par value,
Non-Voting Cumulative Preferred Stock, which may be issued in
different series with the Board of Directors determining the
specific terms of each series without further action by the
shareholders.
SECOND. That the Certificate of Incorporation
(Restated) of the Corporation be amended to add a new
Section VIII as follows:
Section VIII
To the fullest extent permitted by the New Jersey
Business Corporation Act as the same exists or may
hereafter be amended, an officer or a director of the
Corporation shall not be liable to the Corporation or
its shareholders for monetary damages for breach of any
duty, except that nothing contained herein shall
relieve an officer or a director from liability for
breach of a duty based upon an act or omission (a) in
breach of such person's duty of loyalty to the
Corporation or its shareholders, (b) not in good faith
involving a knowing violation of law, or (c) resulting
in receipt by such person of an improper personal
benefit.
Any amendment or modification of the foregoing
provisions of this Section shall not adversely affect
any right or protection of an officer or a director of
the Corporation existing at the time of such amendment
or modification, and such right or protection shall
continue as to a person who has ceased to be an officer
or a director and shall inure to the benefit of the
heirs, executors and administrators of such a person.
(3) That the Amendments were adopted at the Annual
Meeting of Shareholders held on May 28, 1987.
(4) That the number of shares entitled to vote upon
the amendments was 15,377,064 shares of Common Stock.
(5) That the number of shares voted for the amendment
of Section IV of the Certificate of Incorporation (Restated) was
13,927,527 and the number of shares voted against such amendment
was 79,447.
(6) That the number of shares voted for the amendment
adding a new Section VIII to the Certificate of Incorporation
(Restated) was 14,192,732 and the number of shares voted against
such amendment was 50,910.
IN WITNESS WHEREOF, United Brands Company has caused
this Certificate of Amendment to be executed on behalf of the
Corporation by its Chairman of the Board and its Secretary as of
this 31st day of May, 1987.
UNITED BRANDS COMPANY
By /s/ Carl H. Lindner
----------------------------
Carl H. Lindner, Chairman of
the Board and Chief
Executive Officer
ATTEST:
/s/ Dennis M. Doyle
- ------------------------------
Dennis M. Doyle, Secretary
(T2-31)
CERTIFICATE PURSUANT TO SECTION 14A:7-15.1
TO AMEND THE CERTIFICATE OF INCORPORATION
OF UNITED BRANDS COMPANY
Pursuant to Section 14A:7-15.1 of the New Jersey Business
Corporation Act, the undersigned, Fred J. Runk, Vice President of
United Brands Company (the "Company") hereby certifies the
following:
1. The name of the corporation is United Brands Company.
2. A 3-for-1 stock split of the Company's shares of
Capital Stock was adopted by an action by written consent by all
of the members of the Executive Committee of the Board of
Directors on April 27, 1988, attached hereto as Exhibit A.
3. The 3-for-1 stock split will not adversely affect the
rights or preferences of the holders of outstanding shares of any
class or series of the Company and will not increase the number
of authorized but unissued shares.
4. The 12,792,157 outstanding shares of the Company's
Capital Stock, $1.00 par value, will be divided 3 for 1 into
25,584,314 outstanding shares of Capital Stock, with $.33 par
value.
5. Article IV of the Certificate of Incorporation of the
Company is hereby amended in subparagraph (i) as follows:
(i) 45,000,000 shares of Capital Stock, par value $.33
per share ("Capital Stock"),
6. The 3-for-1 stock division will become effective as of
May 31, 1988.
Signed at Cincinnati, Ohio, this 18th day of May, 1988.
/s/ Fred J. Runk
------------------------------
Fred J. Runk
Vice President
Exhibit A
OFFICER'S CERTIFICATE
John J. Gerah, being the duly elected and acting Assistant
Secretary of United Brands Company, certifies that the attached
Exhibit A is a true and correct copy of resolutions adopted by
the Executive Committee of the Board of Directors of the Company
in an action taken in writing pursuant to the corporation laws of
New Jersey signed by all the members of such Committee and dated
as of April 27, 1988, which resolutions remain in full force and
effect as of this date.
Signed at Cincinnati, Ohio this 17th day of May, 1988
/s/ John J. Gerah
------------------------------
John J. Gerah
EXHIBIT A
UNITED BRANDS COMPANY
EXECUTIVE COMMITTEE
AN ACTION TAKEN IN WRITING BY THE MEMBERS OF THE EXECUTIVE
COMMITTEE OF THE BOARD OF DIRECTORS OF UNITED BRANDS COMPANY
RESOLVED: That this Corporation's Capital Stock, $1.00 par
value, be split on the basis of three-for-one so that the par
value be reduced to $.33 per share and two additional shares
shall be issued for each share now outstanding to shareholders of
record at the close of business on May 20, 1988 with such
additional shares to be distributed on May 31, 1988.
RESOLVED: That the number of Capital Stock subject to stock
options as of the close of business on May 20, 1988 and the
respective option prices be correspondingly adjusted to reflect
the 3-for-1 stock split.
RESOLVED: That the conversion right and the conversion
price of the 5 1/2% Convertible Subordinated Debentures due
February 1, 1994 outstanding on May 20, 1988 shall be adjusted to
reflect the 3-for-1 stock split which will result in a conversion
ratio of 1 share per $18.333 of the aggregate principal amount.
RESOLVED: That the Transfer Agent and Registrar for the
Corporation's Capital Stock be and hereby is authorized and
directed to record, register, countersign and deliver
certificates upon original issue representing the shares of
Capital Stock, par value $.33, to be issued as a result of the
3-for-1 Stock Split, and that the authority of the Transfer Agent
and Registrar is increased to include such additional shares.
BE IT FURTHER RESOLVED: That the Corporation's officers are
directed to take all steps necessary and incidental to the
consummation of this stock split including, but not limited to,
listing of the additional shares of Capital Stock on the
New York, Boston and Pacific Stock Exchanges and filing a
certificate with the Secretary of State of New Jersey.
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION (RESTATED)
OF
UNITED BRANDS COMPANY
United Brands Company, a corporation organized under
the laws of the State of New Jersey (the "Corporation") hereby
certifies:
(1) That the name of the Corporation is United Brands
Company.
(2) That at a meeting of the Board of Directors of the
corporation, at which a quorum was present and acting throughout,
the Board of Directors adopted the following resolution proposing
and declaring advisable a certain amendment to the Certificate of
Incorporation (Restated) of the Corporation:
That Section IV of the Certificate of
Incorporation (Restated) of the Corporation be amended
to increase the authorized shares of Capital Stock,
$1.00 par value, from 45,000,000 million shares to
100,000,000 shares.
(3) That the Amendments were adopted at the Annual
Meeting of Shareholders held on June 2, 1988.
(4) That the number of shares entitled to vote upon the
amendment was 12,788,457 shares of Common Stock.
(5) That the number of shares voted for the amendment
of Section IV of the Certificate of Incorporation (Restated) was
11,897,813 and the number of shares voted against such amendment
was 78,821, with 7,429 shares abstaining.
IN WITNESS WHEREOF, United Brands Company has caused
this Certificate of Amendment to be executed on behalf of the
Corporation by its Chairman of the Board and its Secretary as of
this 5th day of June, 1988.
UNITED BRANDS COMPANY
By /s/ Carl H. Lindner
----------------------------
Carl H. Lindner, Chairman of
the Board and Chief
Executive Officer
ATTEST:
/s/ Robert A. Dearth, Jr.
- --------------------------------
Robert A. Dearth, Jr., Secretary
CERTIFICATE OF CORRECTION
TO THE
CERTIFICATE PURSUANT TO SECTION 14A:7-15.1
TO AMEND THE CERTIFICATE OF INCORPORATION OF
UNITED BRANDS COMPANY
The undersigned, Thomas E. Mischell, Vice President of
United Brands Company (the "Company"), a New Jersey corporation,
hereby certifies the following:
1. On May 19, 1988, United Brands Company filed a
Certificate Pursuant to Section 14A:7-15.1 to Amend the
Certificate of Incorporation of United Brands Company (a copy of
which is attached hereto) to report a 3-for-1 stock split
effective as of May 31, 1988.
2. Paragraph 4 of this Certificate should be corrected to
read as follows:
"4. The 12,792,157 outstanding shares of the Company's
Capital Stock, $1.00 par value, will be divided 3 for 1
into 38,376,471 outstanding shares of Capital Stock,
$.33 par value per share."
Signed at Cincinnati, Ohio this 9th day of March, 1989.
/s/ Thomas E. Mischell
------------------------------
Name: Thomas E. Mischell
-------------------------
Title: Vice President
------------------------
United Brands Company
Certificate of Amendment
to the
Certificate of Incorporation (Restated)
United Brands Company, a corporation organized under
the laws of the State of New Jersey (the "Corporation"), hereby
certifies:
(1) That the name of the Corporation is United Brands
Company.
(2) That the Board of Directors of the Corporation
adopted the following resolutions proposing a certain amendment
to the Certificate of Incorporation (Restated) of the
Corporation:
RESOLVED, that the Board of Directors approves the
amendment of Section I of the Company's Certificate of
Incorporation (Restated) to read:
"The name of the Corporation is Chiquita
Brands International, Inc.";
RESOLVED, that the Board of Directors directs that
the proposed amendment be submitted for approval by the
written consent of the holders of a sufficient number
of shares of the Company to take such action.
(3) That pursuant to Section 14A:5-6 of the New Jersey
Business Corporation Act, the Amendment was adopted by Written
Consent dated February 22, 1990 and signed by the holders of
shares being sufficient to take action at a meeting.
(4) That the number of shares entitled to vote upon or
express consent for the Amendment was 38,862,274 shares of
Capital Stock $0.33 par value.
(5) That the number of shares consenting in writing to
the Amendment was 32,010,607.
(6) That not less than ten days prior to the
effectiveness of such action, notice of the adoption of such
Amendment was communicated to all shareholders who did not
consent thereto in writing.
(7) That the Amendment shall become effective at
10:00 a.m. Eastern Standard Time on March 20, 1990.
IN WITNESS WHEREOF, United Brands Company has caused
this Certificate of Amendment to be executed on behalf of the
Corporation by its Executive Vice President, Chief Administrative
Officer as of this 15th day of March, 1990.
UNITED BRANDS COMPANY
By /s/ Steven G. Warshaw
----------------------------
Steven G. Warshaw, Executive
Vice President, Chief
Administrative Officer
CERTIFICATE OF MERGER
OF
UB HOLDING COMPANY
INTO
CHIQUITA BRANDS INTERNATIONAL, INC.
TO: The Secretary of State The Secretary of State
State of Delaware State of New Jersey
Pursuant to the provisions of Section 14A:10-7 Corporations,
General, of the New Jersey Statutes (the "NJS") and the Delaware
General Corporations Laws ("DGCL"), the undersigned corporations
hereby execute the following Certificate of Merger.
ARTICLE ONE
The name of the corporations proposing to merge and the States
under the laws of which such corporations are organized are as
follows:
Name of Corporation State of Incorporation
UB Holding Company Delaware
Chiquita Brands International, Inc. New Jersey
ARTICLE TWO
The surviving corporation shall be Chiquita Brands
International, Inc. (hereinafter referred to as the "Surviving
Corporation").
ARTICLE THREE
The plan of merger is as set forth in the Agreement and Plan
of Merger between Chiquita Brands International, Inc. and
UB Holding Company attached hereto as Exhibit I (the "Agreement")
and is by this reference made a part hereof as if fully set forth
herein. The Certificate of Incorporation of Chiquita Brands
International, Inc. shall be the Certificate of Incorporation of
the Surviving Corporation.
ARTICLE FOUR
The plan of merger was approved by the Board of Directors of
the Surviving Corporation by Unanimous Written Consent dated
March __, 1990, and no vote of the shareholders of the Surviving
Corporation was required because of the applicability of
Section 14A:10-3(4) of the NJS. The Agreement was approved,
adopted, certified, executed and acknowledged by the Surviving
Corporation as provided by Section 252 of the DGCL.
ARTICLE FIVE
The Agreement was approved by the Board of Directors of
UB Holding Company ("Holding") by unanimous written consent dated
March __, 1990, duly adopted by the holders of all 179.611 shares
of the issued and outstanding common stock of Holding by
unanimous written consent dated March __, 1990, and approved,
adopted, certified executed and acknowledged by Holding, all as
provided by Sections 251 and 252 of the DGCL. The applicable
provisions of the laws of Delaware have been, or upon compliance
with filing and recording requirements will have been, complied
with.
ARTICLE SIX
The Surviving Corporation agrees that it may be served with
process in the State of Delaware in any proceeding for
enforcement of any obligation of Holding, as well as for
enforcement of any obligation of Chiquita arising from the
merger, including any suit or other preceding to enforce the
right of any stockholders as determined in the appraisal
proceedings pursuant to the provisions of Section 262 of the
DGCL.
ARTICLE SEVEN
The Surviving Corporation hereby makes an irrevocable
appointment of the Secretary of State of Delaware as its agent to
accept service of process in any proceeding mentioned in the
foregoing paragraph. The Secretary of State is requested to mail
a copy of any process in such proceeding to:
Charles R. Morgan, Esq.
Vice President, General Counsel & Secretary
Chiquita Brands International, Inc.
250 East Fifth Street
Cincinnati, Ohio 45202
ARTICLE EIGHT
The Surviving Corporation further agrees that it will
promptly pay the dissenting stockholders of Holding the amount,
if any, to which they shall be entitled under the provisions
under the DGCL with respect to the rights of dissenting
stockholders.
ARTICLE NINE
The executed Agreement is on file at the principal place of
business of Chiquita located at 250 East Fifth Street,
Cincinnati, Ohio 45202, which Agreement will be furnished upon
request and without cost to any stockholder of either constituent
corporation to the merger.
ARTICLE TEN
IN WITNESS WHEREOF, each of the undersigned corporations has
caused this Certificate of Merger to be executed in its name by
its authorized officer as of the 28th day of March, 1990.
Attest: CHIQUITA BRANDS INTERNATIONAL,
INC.
s/ John J. Gerah By: /s/ Steven G. Warshaw
- ------------------------------ ---------------------------
John J. Gerah Steven G. Warshaw
Assistant Secretary Executive Vice President
UB HOLDING COMPANY
/s/ James C. Kennedy By: /s/ Thomas E. Mischell
- ------------------------------ ---------------------------
James C. Kennedy Thomas E. Mischell
Secretary Vice President
STATE OF OHIO )
: SS:
COUNTY OF HAMILTON )
On this 28th day of March, 1990, before me personally
appeared John J. Gerah, who acknowledged himself to be the
Assistant Secretary of Chiquita Brands International, Inc., a
corporation, and that he is such officer, being authorized to do
so, has executed the foregoing instrument for the purposes
therein contained on behalf of the corporation.
/s/ L. Jennifer Holterhoff
------------------------------
Notary Public
STATE OF OHIO )
: SS:
COUNTY OF HAMILTON )
On this 28th day of March, 1990, before me personally
appeared Steven G. Warshaw, who acknowledged himself to be the
Executive Vice President of Chiquita Brands International, Inc.,
a corporation, and that he is such officer, being authorized to
do so, has executed the foregoing instrument for the purposes
therein contained on behalf of the corporation.
/s/ L. Jennifer Holterhoff
------------------------------
Notary Public
STATE OF OHIO )
: SS:
COUNTY OF HAMILTON )
On this 28th day of March, 1990, before me personally
appeared Thomas E. Mischell, who acknowledged himself to be the
Vice President of UB Holding Company, a corporation, and that he
is such officer, being authorized to do so, has executed the
foregoing instrument for the purposes therein contained on behalf
of the corporation.
/s/ Leslie M. Conradi
------------------------------
Notary Public
STATE OF OHIO )
: SS:
COUNTY OF HAMILTON )
On this 28th day of March, 1990, before me personally
appeared James C. Kennedy, who acknowledged himself to be the
Secretary of UB Holding Company, a corporation, and that he is
such officer, being authorized to do so, has executed the
foregoing instrument for the purposes therein contained on behalf
of the corporation.
/s/ Leslie M. Conradi
------------------------------
Notary Public
EXHIBIT I
AGREEMENT AND PLAN OF MERGER
BETWEEN
CHIQUITA BRANDS INTERNATIONAL, INC.
AND
UB HOLDING COMPANY
This Agreement and Plan of Merger ("Agreement") is entered
into as of the 28th day of March, 1990 by and between Chiquita
Brands International, Inc., a New Jersey corporation
("Chiquita"), UB Holding Company, a Delaware corporation
("Holding") (Chiquita and Holding are sometimes referred to
herein as the "Constituent Corporations") American Financial
Corporation, an Ohio corporation ("AFC"), Great American
Insurance Company, an Ohio corporation ("GAI") and Great American
Communications Company, a Florida corporation ("GACC"), under the
following circumstances:
1. Chiquita is a corporation duly organized and
validly existing under the laws of the state of New
Jersey and has authorized Capital Stock consisting of
100,000,000 shares of Capital Stock, with a par value
of $.33 per share ("Common Stock") of which 38,899,074
shares are issued and outstanding;
2. Holding is a corporation duly organized and
validly existing under the laws of the state of
Delaware and has authorized Capital Stock consisting of
1,000 shares of Common Stock, with a par value of $1.00
per share of which 179.611 shares are issued and
outstanding;
3. AFC, GAI and GACC (collectively the "Holding
Stockholders") own all of the issued and outstanding
shares of Holding Common Stock, and join in this
Agreement for the purposes set forth in Article V
hereof;
4. Boards of Directors of the Constituent
Corporations have by unanimous written consent approved
this Agreement of Merger;
5. The Stockholders of Holding have by unanimous
written consent adopted this Agreement of Merger; and
6. As Chiquita is to be the surviving corporation of
the Merger, no vote of the shareholders of Chiquita is
required because of the applicability of
Section 14A:10-3(4) of the New Jersey Business
Corporation Act.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements contained herein and in accordance with the
laws of the states of New Jersey and Delaware, the parties hereto
agree that Holding shall be merged with and into Chiquita and
that Chiquita shall be the surviving corporation, and that the
terms and conditions of such merger shall be as follows:
ARTICLE I
1.1 At the effective time of the merger, Holding shall be
merged with and into Chiquita which shall be the Surviving
Corporation and Chiquita shall continue its corporate existence
under the laws of the State of New Jersey.
1.2 This Agreement and such supporting documents as are
required shall be filed as promptly as possible with the
Secretary of State of New Jersey and the Secretary of State of
Delaware and the effective time of the merger shall be at the
time of the filing of the necessary documents with such
Secretaries of State.
ARTICLE II
2.1 At the Effective Time, each one ten-thousandth of an
outstanding share of Common Stock of Holding, by operation of the
Merger, shall be converted into and become, without any action on
the part of the holder thereof, one share of Common Stock of
Chiquita. Chiquita warrants that when issued the Chiquita Common
Stock will be duly authorized, fully paid and non-assessable and
free and clear of all liens and encumbrances.
2.2 After the Effective Time, each holder of Certificates
representing shares of Holding Common Stock which have been
converted to Chiquita Common Stock pursuant to Section 2.1 hereof
shall be entitled to receive upon the surrender of such
Certificates a Certificate or Certificates representing the
number of shares of Common Stock of Chiquita to which such
shareholder is entitled. Until such time as such Holding
Certificates are presented, surrendered and exchanged, each such
Certificate of Holding Common Stock shall be deemed for all
purposes to evidence ownership of the number of shares of
Chiquita Common Stock into which they shall have been converted
pursuant to the Merger.
2.3 At the Effective Time, the 17,961,100 shares of
Chiquita Common Stock held by Holding shall, by virtue of the
Merger and without any action on the part of the Surviving
Corporation, cease to be outstanding, shall be canceled and
retired without payment of any consideration therefor and shall
cease to exist.
ARTICLE III
3.1 The Certificate of Incorporation of Chiquita following
the Merger shall be as presently recorded in the office of the
Secretary of State of New Jersey.
3.2 The By-Laws of Chiquita in effect at the Effective Time
shall be the By-Laws of the Surviving Corporation.
ARTICLE IV
Effects of the Merger
From the Effective Time, the Merger shall have the effects
provided by the laws of the States of New Jersey and Delaware.
without limiting the generality of the foregoing, upon the
Effective Time the separate existence of Holding shall cease,
Holding shall be merged with and into Chiquita as the Surviving
Corporation and the Surviving Corporation, without further deed
or action shall possess all assets and property of every
description, and every interest therein, wherever located; all
rights, privileges, immunities, powers, franchises and authority
(of a public as well as a private nature) of each of the
Constituent Corporations and all obligations belonging to or due
each of the Constituent Corporations. Title to real estate or
any interest therein, invested in each Constituent Corporation,
shall not revert or any way be impaired by reason of the Merger.
The Surviving Corporation shall be liable for all the obligations
of each Constituent Corporation, including liability to
dissenting shareholders. Any claim existing, or action or
proceeding pending by or against either Constituent Corporation
may be prosecuted to judgment, with right of appeal, as if the
Merger had not taken place, or the Surviving Corporation may be
substituted in place of the Constituent Corporation. All rights
of creditors of each Constituent Corporation shall be preserved
unimpaired and all liens upon the property of either Constituent
Corporation shall be preserved unimpaired but only on the
property affected by such liens immediately before the Effective
Time. Whenever conveyance, assignment, transfer, deed or other
instrument or act is necessary to vest property or rights in the
Surviving Corporation, the officers of the respective Constituent
Corporations shall execute, acknowledge and deliver such
instruments and do such acts. For such purposes, the existence
of the Constituent Corporations and the authority of their
respective officers and directors is continued, notwithstanding
the Merger.
ARTICLE V
5.1 The Holding Stockholders represent and warrant to
Chiquita that as of the date hereof, and as of the Effective
Time, Holding has no liabilities or obligations which, upon
consummation of the Merger, would become obligations of the
Surviving Corporation.
5.2 The Holding Stockholders represent and warrant to
Chiquita that immediately prior to the Effective Time, the only
assets of Holding will be 17,961,100 shares of Chiquita Common
Stock.
5.3 Notwithstanding anything to the contrary contained
herein, the Holding Stockholders hereby indemnify Chiquita
against, hold it harmless from, and reimburse it for, any and all
claims, expenses, losses, damages, costs, and/or fees arising
from or related to: (i) any breach of the representations and
warranties of the Holding stockholders contained in this
Article V; and (ii) the Merger and related transactions
contemplated herein.
ARTICLE VI
Miscellaneous
6.1 This Agreement may be terminated and the Merger
abandoned at any time prior to the Effective Time.
6.2 Any provision of this Agreement may be waived at any
time by the party which is, or whose shareholders are, entitled
to the benefits thereof and this Agreement may be amended and
supplemented at any time. After approval hereof by the
shareholders of Holding, no amendment shall be made which changes
the provisions relating to rights of the shareholders of Holding
on conversion of their Common Stock as provided in Section 2.1
hereof or which in any way materially adversely affects the
rights of shareholders of Holding without the further approval of
such shareholders.
6.3 This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but
all of which shall together constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement
to be executed as of the date first stated above by their duly
authorized officers.
WITNESS:
CHIQUITA BRANDS INTERNATIONAL,
INC.
/s/ Jack Painter a New Jersey corporation
- ------------------------------
/s/ John J. Gerah BY: /s/ Steven G. Warshaw
- ------------------------------ ---------------------------
Steven G. Warshaw
Executive Vice President &
Chief Administrative
Officer
UB HOLDING COMPANY
/s/ Sandra J. Collins a Delaware corporation
- ------------------------------
/s/ Barbara Grosser BY: /s/ Thomas E. Mischell
- ------------------------------ ---------------------------
Thomas E. Mischell
Vice President
AMERICAN FINANCIAL CORPORATION
/s/ Barbara Grosser an Ohio corporation
- ------------------------------
/s/ Sandra J. Collins BY: /s/ Thomas E. Mischell
- ------------------------------ ---------------------------
Thomas E. Mischell
Vice President
GREAT AMERICAN INSURANCE
COMPANY
/s/ Sandra J. Collins an Ohio corporation
- ------------------------------
/s/ Barbara Grosser BY: /s/ Karen Holley Horrell
- ------------------------------ ---------------------------
Karen Holley Horrell
Senior Vice President,
General Counsel & Secretary
GREAT AMERICAN COMMUNICATIONS
COMPANY
/s/ Sandra J. Collins a Florida corporation
- ------------------------------
/s/ Barbara Grosser BY: /s/ Thomas E. Mischell
- ------------------------------ ---------------------------
Thomas E. Mischell
Vice President
STATE OF OHIO )
: SS:
COUNTY OF HAMILTON )
On this 28th day of March, 1990, before me personally
appeared Steven G. Warshaw, who acknowledged himself to be the
Executive Vice President and Chief Administrative Officer of
Chiquita Brands International, Inc., a corporation, and that he
is such officer, being authorized to do so, has executed the
foregoing instrument for the purposes therein contained on behalf
of the corporation.
/s/ Teresa M. Masur
------------------------------
Notary Public
STATE OF OHIO )
: SS:
COUNTY OF HAMILTON )
On this 26th day of March, 1990, before me personally
appeared Thomas E. Mischell, who acknowledged himself to be the
Vice President of UB Holding Company, a corporation, and that he
is such officer, being authorized to do so, has executed the
foregoing instrument for the purposes therein contained on behalf
of the corporation.
/s/ Leslie M. Conradi
------------------------------
Notary Public
STATE OF OHIO )
: SS:
COUNTY OF HAMILTON )
On this 26th day of March, 1990, before me personally
appeared Thomas E. Mischell, who acknowledged himself to be the
Vice President of American Financial Corporation, a corporation,
and that he is such officer, being authorized to do so, has
executed the foregoing instrument for the purposes therein
contained on behalf of the corporation.
/s/ Leslie M. Conradi
------------------------------
Notary Public
STATE OF OHIO )
: SS:
COUNTY OF HAMILTON )
On this 26th day of March, 1990, before me personally
appeared Karen Holley Horrell, who acknowledged herself to be the
Senior Vice President, General Counsel and Secretary of Great
American Insurance Company, a corporation, and that she is such
officer, being authorized to do so, has executed the foregoing
instrument for the purposes therein contained on behalf of the
corporation.
/s/ Sandra J. Collins
------------------------------
Notary Public
STATE OF OHIO )
: SS:
COUNTY OF HAMILTON )
On this 26th day of March, 1990, before me personally
appeared Thomas E. Mischell, who acknowledged himself to be the
Vice President of Great American Communications Company, a
corporation, and that he is such officer, being authorized to do
so, has executed the foregoing instrument for the purposes
therein contained on behalf of the corporation.
/s/ Leslie M. Conradi
------------------------------
Notary Public
CERTIFICATE OF CORRECTION
TO THE
"CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION (RESTATED)
OF
UNITED BRANDS COMPANY"
The undersigned, Charles R. Morgan, Vice President, General
Counsel and Secretary of Chiquita Brands International, Inc.,
formerly known as "United Brands Company" (the "Corporation"), a
New Jersey corporation, hereby certifies the following:
1. On June 16, 1988, the Corporation, then known as United
Brands Company, filed a "Certificate of Amendment to the
Certificate of Incorporation (Restated) of United Brands Company"
(the "Certificate"), a copy of which is attached hereto, for the
purpose of increasing the authorized Capital Stock from
45,000,000 shares to 100,000,000 shares. The Certificate
erroneously referred to the Capital Stock as having a par value
of $1.00 per share rather than $0.33 per share.
2. Paragraph 2 of the Certificate is corrected to read in
part as follows:
That Section IV of the Certificate of Incorporation
(Restated) of the Corporation be amended to increase
the authorized shares of Capital Stock, $0.33 par
value, from 45,000,000 shares to 100,000,000 shares.
Signed at Cincinnati, Ohio this 14th day of May, 1990.
/s/ Charles R. Morgan
------------------------------
Charles R. Morgan
Vice President, General
Counsel and Secretary
CERTIFICATE OF AMENDMENT
TO THE
RESTATED CERTIFICATE OF INCORPORATION
OF
CHIQUITA BRANDS INTERNATIONAL, INC.
TO: Secretary of State
State of New Jersey
Pursuant to the provisions of N.J.S. 14A:7-2(2), the
undersigned corporation, Chiquita Brands International, Inc. (the
"Corporation"), executes the following Certificate of Amendment
to its Restated Certificate of Incorporation, as amended (the
"Certificate of Incorporation").
1. The name of the Corporation is Chiquita Brands
International, Inc.
2. The following resolutions, establishing and designating
a series of shares and fixing and determining the
relative rights and preferences thereof, were duly
adopted by the Executive Committee of the Board of
Directors of the Corporation as of the thirtieth day of
October, 1992, pursuant to the authority vested in the
Board of Directors by the Certificate of Incorporation,
exercised on behalf of the Board of Directors by the
Executive Committee pursuant to resolutions of the
Board of Directors so authorizing it to act:
RESOLVED, that pursuant to the authority
expressly vested in the Executive Committee of the
Board of Directors of the Corporation by the
Restated Certificate of Incorporation, as amended,
and by resolutions of the Board of Directors, the
Executive Committee of the Board of Directors
hereby classifies One Million (1,000,000) shares
of the Corporation's Series Preference Stock as a
new series designated "Mandatorily Exchangeable
Cumulative Preference Stock, Series C," without
par value (the "Series C Preference Stock").
RESOLVED, that the terms and conditions
of the Series C Preference Stock, including
its rights, preferences, privileges, voting
powers, restrictions, qualifications,
limitations as to dividends, and terms and
conditions for conversion shall be as set
forth in Exhibit A attached hereto.
RESOLVED, that the Corporation's Restated
Certificate of Incorporation, as amended, is
hereby further amended to add to Section IV of
such certificate a new Subsection F entitled
"Special Provisions Applicable to Series C
Preference Stock," in the form attached hereto as
Exhibit A, and the proper officers of the
Corporation are authorized to execute and file, as
necessary, any documents or certificates with the
New Jersey Secretary of State to effect such
amendment.
3. The resolutions were adopted by unanimous written
consent by the Executive Committee of the Board of
Directors as of October 30, 1992.
4. The Restated Certificate of Incorporation of the
Corporation, as amended, is further amended so that the
designation and number of shares of each class and
series acted upon in the resolutions, and the relative
rights, preferences and limitations of each such class
and series are as stated in Exhibit A attached hereto,
which is the same exhibit referred to in the foregoing
resolutions.
IN WITNESS WHEREOF, the undersigned has signed this
Certificate of Amendment to the Restated Certificate of
Incorporation this 30th day of October, 1992.
CHIQUITA BRANDS INTERNATIONAL, INC.
By: /S/ STEVEN G. WARSHAW
--------------------------------
Steven G. Warshaw
Executive Vice President and
Chief Administrative Officer
EXHIBIT A
SUBSECTION F. SPECIAL PROVISIONS APPLICABLE TO SERIES C
PREFERENCE STOCK
There is hereby established Series C Preference Stock which
shall be designated "Mandatorily Exchangeable Cumulative
Preference Stock, Series C" ("Series C Preference Stock") and
shall consist of One Million (1,000,000) shares, and no more.
The relative, participating, optional and other special rights
and the qualifications, limitations and restrictions of the
Series C Preference Stock, other than those specified for all
series of Series Preference Stock in Subsection B of this Section
IV, shall be as follows:
(a) Dividends. (i) In respect of the period beginning on
the date of issuance of the Series C Preference Stock and ending
on and including September 7, 1995 (the "Preferred Period"), the
holders of outstanding shares of the Series C Preference Stock
shall be entitled to receive (subject to the rights of holders of
shares of $3.00 Cumulative Preferred Stock or any series of
Series Preference Stock and/or any other class or series of
preferred stock which the Corporation may in the future issue
which ranks prior to or on a parity with the Series C Preference
Stock with respect to dividends), when, as and if declared by the
Board of Directors out of funds legally available therefor,
cumulative preferential cash dividends at the per share rate of
$1.65 per quarter and no more ("Preferential Dividends"),
accruing and payable on the seventh day of March, June, September
and December of each year during the Preferred Period (each such
date being hereinafter referred to as a "Preferential Dividend
Payment Date") commencing December 7, 1992; provided, however,
that the Preferential Dividend payable on December 7, 1992 (the
"Initial Preferential Dividend") shall be equal to the sum of (x)
$0.85 times a fraction, the numerator of which is the number of
days from September 8, 1992 to and including the date of issuance
of the Series C Preference Stock and the denominator of which is
90, plus (y) $1.65 times a fraction, the numerator of which is
the number of days from the date of issuance of the Series C
Preference Stock to and including December 7, 1992 and the
denominator of which is 90. If December 7, 1992 or any other
Preferential Dividend Payment Date shall not be a business day,
then the Preferential Dividend Payment Date shall be on the next
succeeding business day. Each such dividend will be payable to
holders of record as they appear on the stock books of the
Corporation on such record date, not less than 10 nor more than
60 days preceding the Preferential Dividend Payment Date, as
shall be fixed by the Board of Directors. Dividends on the
Series C Preference Stock in respect of the Preferred Period
shall accrue on a quarterly basis commencing from the date of
issuance of the Series C Preference Stock, and dividends accruing
on each Preferential Dividend Payment Date shall accumulate to
the extent not paid on such date. Accumulated unpaid dividends
shall not bear interest.
(ii) So long as any shares of Series C Preference Stock
are outstanding, no dividend (including, but not limited to, a
dividend or distribution paid in shares of, or warrants or rights
to subscribe for or purchase shares of, Capital Stock or in any
other stock of the Corporation) shall be declared or paid or set
aside for payment or other distribution declared or made upon the
Capital Stock or upon any other stock of the Corporation ranking
junior to or (except as provided in the following sentence) on a
parity with Series C Preference Stock as to dividends or upon
liquidation, nor shall any Capital Stock nor any other stock of
the Corporation ranking junior to or on a parity with Series C
Preference Stock as to dividends or upon liquidation be redeemed,
purchased or otherwise acquired for any consideration (or any
moneys be paid to or made available for a sinking fund for the
redemption of any shares of any such stock) by the Corporation
(except by conversion into or exchange for stock of the
Corporation ranking junior to Series C Preference Stock as to
dividends and upon liquidation) unless, in each case, the full
Preferential Dividends, if any, accumulated on all outstanding
shares of the Series C Preference Stock through the most recent
Preferential Dividend Payment Date shall have been paid or
deposited for payment or contemporaneously are declared and paid
or deposited for payment through the most recent Preferential
Dividend Payment Date. When dividends have not been paid in full
upon the shares of Series C Preference Stock, all dividends and
other distributions declared upon the Series C Preference Stock
and any other shares of the Corporation ranking on a parity as to
dividends and such other distributions with the shares of Series
C Preference Stock shall be declared pro rata so that the amount
of dividends and other distributions declared per share on the
Series C Preference Stock and such other shares shall in all
cases bear to each other the same ratio that accrued dividends
per share on the shares of Series C Preference Stock and such
other shares bear to each other. Holders of the shares of Series
C Preference Stock shall not be entitled to any dividends,
whether payable in cash, property or stock, in excess of full
cumulative dividends, as herein provided.
(iii) Any dividend payment made on shares of Series C
Preference Stock shall first be credited against the earliest
accrued but unpaid dividend due with respect to shares of Series
C Preference Stock.
(iv) At the option of the Corporation, following the
giving of notice to holders of record of Series C Preference
Stock prior to the applicable record date, the Corporation may
deliver on any Preferential Dividend Payment Date, in lieu of the
cash dividends described in clause (i) above, a number of shares
of Capital Stock equal to the amount of cash dividends described
in such clause (i) divided by the Current Market Price (as
hereinafter defined) of the Capital Stock determined as of the
second Trading Date (as hereinafter defined) immediately
preceding the relevant Notice Date (as hereinafter defined). Such
option may be exercised by the Corporation in whole or in part.
The notice required pursuant to this paragraph shall be provided
by mailing notice of the Corporation's election, first class
postage prepaid, to each holder of record of the Series C
Preference Stock, at such holder's address as it appears on the
stock register of the Corporation. Each such mailed notice shall
state, as appropriate, the record date, the number of shares of
Capital Stock to be delivered per share of Series C Preference
Stock and the Current Market Price used to calculate such number
of shares of Capital Stock. No fractional shares of Capital
Stock shall be issued pursuant to this Subsection F(a)(iv) but,
in lieu of any fraction of a share of Capital Stock which would
otherwise be issuable in respect of the aggregate number of
shares of the Series C Preference Stock held by the same holder,
each such holder shall have the right to receive an amount in
cash equal to the same fraction of the Current Market Price of
the Capital Stock determined as of the second Trading Date
immediately preceding the relevant Notice Date or a cash payment
equal to such holder's proportionate interest in the net proceeds
(following the deduction of applicable transaction costs) from
the sale, promptly by an agent on behalf of all such holders, of
shares of Capital Stock representing the aggregate of such
fractional shares.
(b) Liquidation. (i) Upon any dissolution, liquidation or
winding up of the affairs of the Corporation, whether voluntary
or involuntary (collectively, a "Liquidation"), the holders of
shares of Series C Preference Stock shall be entitled to receive
out of the assets of the Corporation available for distribution
to shareholders, after payment of all debts and other liabilities
of the Corporation and all liquidation preferences of holders of
shares of $3.00 Cumulative Preferred Stock and/or any other class
or series of preferred stock which the Corporation may in the
future issue which ranks prior to the Series C Preference Stock
with respect to liquidation rights, but before any distribution
or payment is made to holders of Capital Stock of the Corporation
or on any other shares of the Corporation ranking junior to the
shares of Series C Preference Stock upon liquidation, liquidating
distributions in the amount of $90 per share, plus an amount
equal to all Preferential Dividends accrued and unpaid thereon
(including dividends accumulated and unpaid) to the date of
Liquidation, and no more. If upon any Liquidation the amounts
payable with respect to the Series C Preference Stock and any
other shares of the Corporation ranking as to any such
distribution on a parity with the Series C Preference Stock are
not paid in full, the holders of shares of Series C Preference
Stock and of such other shares will share ratably in any such
distribution of assets of the Corporation in proportion to the
full respective distributable amounts to which they are entitled.
After payment of the full amount of the liquidating distribution
to which they are entitled, the holders of shares of Series C
Preference Stock will not be entitled to any further
participation in any distribution or payments by the Corporation.
(ii) Neither the merger nor consolidation of the Corporation
into or with any other corporation, nor the merger or
consolidation of any other corporation into or with the
Corporation, nor a sale, transfer or lease of all or any part of
the assets of the Corporation, shall be deemed to be a
Liquidation for purposes of this Subsection F(b).
(c) Conversions.
(i) Automatic Conversion on Final Conversion Date. Unless
earlier converted in accordance with the provisions hereof, on
September 7, 1995 (the "Final Conversion Date"), each outstanding
share of Series C Preference Stock shall automatically convert
into:
(A) that number of shares of Capital Stock as
shall be equal to the product of (x) the Common
Equivalent Rate (determined as provided in Subsection
F(c)(iv)) determined as of the Final Conversion Date,
and (y) the Appreciation Adjustment Factor (determined
as provided in Subsection F(c)(v)) determined as of the
second Trading Date preceding the Final Conversion
Date; and
(B) the right to receive an amount in cash equal
to all accrued and unpaid dividends on such share to
and including the Final Conversion Date, whether or not
declared, out of funds legally available therefor;
provided, however, that to the extent that on the Final
Conversion Date the Corporation shall have failed to fulfill its
obligation to pay or deposit (in accordance with Subsection
F(c)(x)) the funds set forth in clause (B) above and shall not
have previously notified holders of Series C Preference Stock of
its exercise of its option, pursuant to the following paragraph,
to deliver shares of Capital Stock in whole or partial
fulfillment of its obligations pursuant to clause (B) above, then
each outstanding share of Series C Preference Stock shall
automatically convert into that number of shares of Capital Stock
as shall equal the sum of (x) the number of shares determined in
accordance with clause (A) above, plus (y) the number of shares
determined by subtracting from the amount of cash described in
clause (B) above, the amount of such cash actually paid or
deposited (in accordance with Subsection F(c)(x)), and dividing
the remainder by the Current Market Price of the Capital Stock
determined as of the second Trading Date immediately preceding
the Final Conversion Date.
At the option of the Corporation, following the giving of
notice thereof to holders of record of Series C Preference Stock
in accordance with Subsection F(c)(x), it may deliver on the
Final Conversion Date, in lieu of the cash described in clause
(B) above, a number of shares of Capital Stock equal to the
amount of cash described in such clause (B) divided by the
Current Market Price of the Capital Stock determined as of the
second Trading Date immediately preceding the Notice Date. Such
option may be exercised by the Corporation for all or part of
such cash consideration.
(ii) Automatic Conversion Upon the Occurrence of Certain
Events. Immediately prior to the effectiveness of a merger or
consolidation of the Corporation that results in the conversion
or exchange of the Capital Stock into or for, or that results in
the holders of Capital Stock obtaining the right to receive,
other securities or other property, whether of the Corporation or
of any other entity (any such merger or consolidation is referred
to herein as a "Merger or Consolidation"), other than a Merger or
Consolidation in which the Series C Preference Stock remains
outstanding and holders of Series C Preference Stock obtain the
right to receive the same securities or other property that they
would have received with respect to the number of shares of
Capital Stock which such holders would have received pursuant to
clause (A) (only) of this Subsection F(c)(ii) upon conversion of
their shares of Series C Preference Stock immediately prior to
the effectiveness of the Merger or Consolidation, each
outstanding share of Series C Preference Stock shall
automatically convert into:
(A) that number of shares of Capital Stock as
shall be equal to the product of (x) the Common
Equivalent Rate determined as of the effective date of
the Merger or Consolidation, and (y) the Appreciation
Adjustment Factor determined as of the second Trading
Date prior to the applicable Notice Date; plus
(B) the right to receive an amount of cash equal
to the accrued and unpaid dividends on such share of
Series C Preference Stock to and including the
Settlement Date (as hereinafter defined); plus
(C) the right to receive an amount of cash (the
"Remaining Dividend Premium"), equal on the date of
issuance of the Series C Preference Stock to $8.80 plus
the amount by which the Initial Preferential Dividend
would have exceeded $0.85, declining on December 7,
1992 by the amount by which the Initial Preferential
Dividend exceeded $0.85, and declining thereafter by
$0.80 on each Preferential Dividend Payment Date from
and including March 7, 1992 to zero on September 7,
1995, in each case determined as of the Settlement
Date; plus
(D) if the effective date of such Merger or
Consolidation shall occur on a date which is prior to the
payment date of a cash dividend which has been declared on
shares of Capital Stock but after the record date for such
dividend payment, the right to receive an amount of cash
equal to $0.85; plus
(E) if the effective date of such Merger or
Consolidation shall occur on a Preferential Dividend Payment
Date and no amount shall be payable pursuant to clause (D)
immediately above, the right to receive an amount of cash
equal to $0.85;
provided, however, that to the extent that on the effective date
the Corporation shall have failed to fulfill its obligation to
pay or deposit (in accordance with Subsection F(c)(x) below) the
funds set forth in clauses (B),(C), (D) and (E) above and shall
not have previously notified holders of Series C Preference Stock
of its exercise of its option, pursuant to the following
paragraph, to deliver shares of Capital Stock in whole or partial
fulfillment of its obligations pursuant to clauses (B),(C), (D)
and (E) above, then each outstanding share of Series C Preference
Stock shall automatically convert into that number of shares of
Capital Stock as shall equal the sum of (x) the number of shares
determined in accordance with clause (A) above, plus (y) a number
of shares determined by subtracting from the amount of cash
described in clauses (B), (C), (D) and (E) above the amount of
such cash actually paid or deposited (in accordance with
Subsection F(c)(x)), and dividing the remainder by the Current
Market Price of the Capital Stock determined as of the second
Trading Date immediately preceding the effective date of such
Merger or Consolidation.
At the option of the Corporation, following the giving of
notice thereof to holders of record of Series C Preference Stock
in accordance with Subsection F(c)(x), it may deliver on the
effective date of such Merger or Consolidation, in lieu of the
cash described in clauses (B), (C), (D) and (E) above, a number
of shares of Capital Stock equal to the amount of cash described
in such clauses (B),(C), (D) and (E) divided by the Current
Market Price of the Capital Stock determined as of the second
Trading Date immediately preceding the Notice Date. Such option
may be exercised by the Corporation for all or part of such cash
consideration.
(iii) Conversion at the Option of the Corporation. At any
time and from time to time prior to the Final Conversion Date,
the Corporation shall have the right to convert, in whole or in
part, the outstanding shares of Series C Preference Stock. Each
outstanding share of Series C Preference Stock to be converted
shall automatically convert into:
(A) that number of shares of Capital Stock as
shall be equal to the product of (x) the Common
Equivalent Rate determined as of the effective date of
the conversion, and (y) the Appreciation Adjustment
Factor determined as of the second Trading Date prior
to the applicable Notice Date; plus
(B) the right to receive an amount of cash equal
to the accrued and unpaid dividends on such share of
Series C Preference Stock to and including the
Settlement Date; plus
(C) the right to receive an amount of cash equal
to the Remaining Dividend Premium on such share of
Series C Preference Stock, determined as of the
Settlement Date; plus
(D) if the effective date of such conversion shall
occur on a date which is prior to the payment date of a cash
dividend which has been declared on shares of Capital Stock
but after the record date for such dividend payment, the
right to receive an amount of cash equal to $0.85; plus
(E) if the effective date of such conversion shall
occur on a Preferential Dividend Payment Date and no amount
shall be payable pursuant to clause (D) immediately above,
the right to receive an amount of cash equal to $0.85;
provided, however, that to the extent that on the effective date
of any such conversion the Corporation shall have failed to
fulfill its obligation to pay or deposit (in accordance with
Subsection F(c)(x) below) the funds set forth in clauses (B),(C),
(D) and (E) above and shall not have previously notified holders
of Series C Preference Stock to be converted of its exercise of
its option, pursuant to the following paragraph, to deliver
shares of Capital Stock in whole or partial fulfillment of its
obligations pursuant to clauses (B), (C), (D) and (E) above, then
each outstanding share of Series C Preference Stock to be
converted shall automatically convert into that number of shares
of Capital Stock as shall equal the sum of (x) the number of
shares determined in accordance with clause (A) above, plus (y) a
number of shares determined by subtracting from the amount of
cash described in clauses (B), (C), (D) and (E) above the amount
of such cash actually paid or deposited (in accordance with
Subsection F(c)(x)), and dividing the remainder by the Current
Market Price of the Capital Stock determined as of the second
Trading Date immediately preceding the effective date of any such
conversion.
At the option of the Corporation, it may deliver on the
effective date of any such conversion, in lieu of the cash
consideration described in clauses (B), (C), (D) and (E) above, a
number of shares of Capital Stock equal to the amount of cash
consideration described in such clauses (B), (C), (D) and (E)
divided by the Current Market Price of the Capital Stock
determined as of the second Trading Date immediately preceding
the Notice Date. Such option may be exercised by the Corporation
for all or part of such cash consideration.
(iv) Common Equivalent Rate; Adjustments. The Common
Equivalent Rate to be used to determine the number of shares of
Capital Stock to be delivered on the conversion of the Series C
Preference Stock into shares of Capital Stock pursuant to
Subsection F(c)(i), (ii) and (iii) shall be initially five (5)
shares of Capital Stock for each share of Series C Preference
Stock; provided, however, that such Common Equivalent Rate shall
be subject to adjustment from time to time as provided below in
this Subsection F(c)(iv). All adjustments to the Common
Equivalent Rate shall be calculated in 1/100ths of a share of
Capital Stock. Such rate in effect at any time is herein called
the "Common Equivalent Rate."
(A) If the Corporation shall:
(1) pay a dividend or make a distribution
with respect to the Capital Stock in shares of
Capital Stock (other than a dividend or
distribution which is also paid to holders of
Series C Preference Stock and in which such
holders shall receive, with respect to each share
of Series C Preference Stock, the same number of
shares of Capital Stock as shall be distributed
with respect to that number of shares of Capital
Stock as shall be equal to the product of (x) the
Common Equivalent Rate determined as of the
applicable record date for the determination of
shareholders entitled to receive such dividend or
distribution and (y) the Appreciation Adjustment
Factor determined as of the second Trading Date
prior to the applicable Notice Date),
(2) subdivide or split its outstanding shares
of Capital Stock,
(3) combine its outstanding shares of Capital
Stock into a smaller number of shares, or
(4) issue by reclassification of its shares
of Capital Stock any shares of Capital Stock of
the Corporation
then, in any such event, the Common Equivalent Rate shall be
adjusted by multiplying the Common Equivalent Rate in effect
immediately prior to the date of such event by a fraction,
of which the numerator shall be the number of outstanding
shares of Capital Stock immediately following such event,
and of which the denominator shall be the number of
outstanding shares of Capital Stock immediately prior to
such event. Such adjustment shall become effective at the
opening of business on the business day next following the
record date for determination of shareholders entitled to
receive such dividend or distribution in the case of a
dividend or distribution and shall become effective
immediately after the effective date in case of a
subdivision, split, combination, or reclassification.
(B) If the Corporation shall pay a dividend or make a
distribution to all holders of its Capital Stock of evidence
of its indebtedness or other assets (including securities of
the Corporation but excluding any cash dividends or
distributions and dividends referred to in clause (A)
above), or shall distribute to all holders of its Capital
Stock rights or warrants to subscribe for or purchase
securities of the Corporation or any of its subsidiaries,
(in each case other than a dividend or distribution which is
also paid or made to holders of Series C Preference Stock in
which such holders shall receive, with respect to each share
of Series C Preference Stock, the same evidence of
indebtedness or other assets, or the same rights or
warrants, as shall be paid or distributed with respect to
that number of shares of Capital Stock as shall be equal to
the product of (x) the Common Equivalent Rate determined as
of the applicable record date for the determination of
shareholders entitled to receive such dividend or
distribution and (y) the Appreciation Adjustment Factor
determined as of the second Trading Date prior to the
applicable Notice Date), then in each such case the Common
Equivalent Rate shall be adjusted by multiplying the Common
Equivalent Rate in effect immediately prior to the date of
such distribution by a fraction, of which the numerator
shall be the Current Market Price per share of Capital Stock
on the record date mentioned below, and of which the
denominator shall be such Current Market Price per share of
Capital Stock less the fair market value (as determined by
the Board of Directors of the Corporation, whose
determination shall be conclusive) as of such record date of
the portion of the assets or evidences of indebtedness so
distributed, or of such subscription rights or warrants,
applicable to one share of Capital Stock. Such adjustment
shall become effective on the opening of business on the
business day next following the record date for the
determination of shareholders entitled to receive such
distribution.
(C) Anything in this Subsection F(c) notwithstanding,
the Board of Directors shall be entitled to make such upward
adjustments in the Common Equivalent Rate, in addition to
those required by this Subsection F(c), (1) as the Board of
Directors in its discretion shall determine to be advisable,
in order that any stock dividends, subdivision of shares,
distribution of rights to purchase stock or securities, or a
distribution of securities convertible into or exchangeable
for stock (or any transaction which could be treated as any
of the foregoing transactions pursuant to Section 305 of the
Internal Revenue Code of 1986, as amended) hereafter made by
the Corporation to its shareholders shall not be taxable;
and (2) as the Board of Directors in its discretion shall
determine to be necessary or appropriate in order to
preserve the relative rights of the holders of Capital
Stock, on the one hand, and the holders of Series C
Preference Stock, on the other hand, as such rights are set
forth in this Certificate of Incorporation.
(D) In any case in which this Subsection F(c)(iv)
shall require that an adjustment as a result of any event
become effective at the opening of business on the business
day next following a record date, and the date fixed for
conversion pursuant to Subsection F(c)(i), (ii) or (iii)
occurs after such record date, but before the occurrence of
such event, the Corporation may in its sole discretion elect
to defer the following until after the occurrence of such
event:
(1) issuing to the holder of any shares of the
Series C Preference Stock surrendered for conversion
the additional shares of Capital Stock issuable upon
such conversion over and above the shares of Capital
Stock issuable upon such conversion on the basis of the
Common Equivalent Rate prior to adjustment; and
(2) paying to such holder any amount in cash in
lieu of a fractional share of Capital Stock pursuant to
Subsection F(c)(vii).
(v) Appreciation Adjustment Factor; Adjustments. On any
date, the "Appreciation Adjustment Factor" shall be determined as
follows:
(A) If, on such date, the Current Market Price per
share of Capital Stock shall be less than or equal to the
Appreciation Cap (as hereinafter defined), then the
Appreciation Adjustment Factor shall be equal to one (1).
(B) If, on such date, the Current Market Price per
share of Capital Stock shall be greater than the
Appreciation Cap, then the Appreciation Adjustment Factor
shall be equal to a fraction, the numerator of which is the
Appreciation Cap and the denominator of which is the Current
Market Price per share of Capital Stock.
(C) The Appreciation Cap shall be initially $24.00 per
share of Capital Stock. If, as and when the Common
Equivalent Rate is adjusted, the Appreciation Cap shall be
adjusted, such that the ratio which the Appreciation Cap in
effect immediately following such adjustment bears to the
Appreciation Cap in effect immediately prior to such
adjustment is the same ratio as that which the Common
Equivalent Rate in effect immediately prior to such
adjustment bears to the Common Equivalent Rate in effect
immediately following such adjustment. The Appreciation Cap
in effect at any time is herein called the "Appreciation
Cap."
(vi) Notice of Adjustments. Whenever the Common Equivalent
Rate is adjusted as herein provided, the Corporation shall:
(A) forthwith compute the adjusted Common Equivalent
Rate and Appreciation Cap in accordance with this Subsection
F(c)(vi) and prepare a certificate signed by the Chief
Executive Officer, the Chairman, the President, any Vice
President or the Treasurer of the Corporation setting forth
the adjusted Common Equivalent Rate and Appreciation Cap,
the method of calculation thereof in reasonable detail and
the facts requiring such adjustment and upon which such
adjustment is based, and file such certificate forthwith
with the transfer agent or agents for the Series C
Preference Stock and the Capital Stock; and
(B) mail a notice stating that the Common Equivalent
Rate and the Appreciation Cap have been adjusted, the facts
requiring such adjustment and upon which such adjustment is
based and setting forth the adjusted Common Equivalent Rate
and Appreciation Cap to the holders of record of the
outstanding shares of the Series C Preference Stock at or
prior to the time the Corporation mails an interim statement
to its shareholders covering the quarter-yearly period
during which the facts requiring such adjustment occurred,
but in any event within 45 days of the end of such quarter-
yearly period.
In addition to the foregoing, the Corporation will calculate and
provide notice to the transfer agent or agents for the Series C
Preference Stock and the Capital Stock within 30 days after (1)
the date of initial issuance of the shares of Series C Preference
Stock, (2) each Preferential Dividend Payment Date or (3) the
occurrence of any event triggering an adjustment of the Common
Equivalent Rate, of the number of shares of Capital Stock
required to be reserved for issuance upon conversion of the
issued and outstanding shares of Series C Preference Stock
(calculated as if the Current Market Price of any shares of
Capital Stock issuable in payment of Preferential Dividends or
Remaining Dividend Premium were 30% of the lowest Current Market
Price of Capital Stock applicable during the preceding 100 days);
provided that no such notice need be sent if the number of shares
of Capital Stock then reserved is in excess of the number of
shares of Capital Stock required to be reserved as so calculated.
(vii) No Fractional Shares. No fractional shares of
Capital Stock shall be issued upon conversion of shares of the
Series C Preference Stock but, in lieu of any fraction of a share
of Capital Stock which would otherwise be issuable in respect of
the aggregate number of shares of the Series C Preference Stock
surrendered by the same holder for redemption or conversion on
any redemption or conversion date or in payment of accrued and
unpaid dividends, the Remaining Dividend Premium or any other
amount, the holder shall have the right to receive an amount in
cash equal to the same fraction of the Current Market Price of
the Capital Stock determined as of the second Trading Date
immediately preceding the relevant Notice Date or, with respect
to conversions pursuant to Subsection F(c)(i), the Final
Conversion Date, as the case may be, or a cash payment equal to
such holder's proportionate interest in the net proceeds
(following the deduction of applicable transaction costs) from
the sale, promptly by an agent on behalf of all such holders, of
shares of Capital Stock representing the aggregate of such
fractional shares.
(viii) Cancellation. All shares of Series C Preference
Stock which shall have been converted into or redeemed for shares
of Capital Stock or which shall have been purchased or otherwise
acquired by the Corporation shall assume the status of authorized
but unissued shares of Series Preference Stock undesignated as to
series.
(ix) Definitions. As used in this Subsection F,
(A) the term "business day" shall mean any day other
than a Saturday, Sunday, or a day on which banking
institutions in the States of New York or Ohio are
authorized or obligated by law or executive order to close;
(B) the term "Market Price" for any day means (1) if
the Capital Stock is listed or admitted for trading on the
New York Stock Exchange (or any successor to such exchange)
or, if not so listed or admitted, on any national or
regional securities exchange, the last sale price, or the
closing bid price if no sale occurred, of such class of
stock on the principal securities exchange on which such
class of stock is listed, or (2) if not listed or traded as
described in clause (1), the last reported sales price of
Capital Stock on the National Market System of the National
Association of Securities Dealers Automated Quotations
System, or any similar system of automated dissemination of
quotations of securities prices then in common use, if so
quoted, or (3) if not quoted as described in clause (2), the
mean between the high bid and the low asked quotations for
the Capital Stock as reported by the National Quotation
Bureau Incorporated if at least two securities dealers have
inserted both bid and asked quotations for such class of
stock on at least five of the ten preceding days. If the
Capital Stock is quoted on a national securities or central
market system in lieu of a market or quotation system
described above, then the closing price shall be determined
in the manner set forth in clause (1) of the preceding
sentence if actual transactions are reported and in the
manner set forth in clause (3) of the preceding sentence if
bid and asked quotations are reported but actual
transactions are not. If none of the conditions set forth
above is met, the closing price of Capital Stock on any day
or the average of such closing prices for any period shall
be the fair market value of such class of stock as
determined by a member firm of the New York Stock Exchange,
Inc. (or any successor to such exchange) selected by the
Corporation.
(C) the term "Current Market Price" per share of
Capital Stock on any day shall be the average of the daily
Market Prices for the ten consecutive Trading Dates ending
on and including the date of determination of the Current
Market Price (appropriately adjusted to take into account
the occurrence during such ten-day period, or following such
ten-day period and prior to the date on which shares of
Series C Preference Stock are converted into Capital Stock,
of any event that results in an adjustment of the Common
Equivalent Rate).
(D) the term "Notice Date" shall mean the following:
with respect to any notice given by the Corporation in
connection with a conversion (including any potential
conversion upon the effectiveness of a Merger or
Consolidation) of any of the Series C Preference Stock, the
earlier of the commencement of the mailing of such notice to
the holders of Series C Preference Stock or the date such
notice is first published in accordance with Subsection
F(c)(x); with respect to any notice given by the Corporation
in connection with its exercise of its option to deliver
shares of Capital Stock in lieu of cash in payment of
dividends on the Series C Preference Stock, including a
notice stating that the Corporation intends to exercise its
option to deliver shares of Capital Stock in satisfaction of
accrued and unpaid dividends on the Final Conversion Date,
the commencement of the mailing of such notice to the
holders of Series C Preference Stock; and with respect to
any notice given by the Corporation in connection with a
dividend or distribution referred to in Subsection F(c)(iv),
the earlier of the commencement of the mailing of notice of
such dividend or distribution to the holders of Capital
Stock or the date such notice is first published in an
Authorized Newspaper (as hereinafter defined).
(E) the term "Settlement Date" shall mean the
following: with respect to a Merger or Consolidation, the
business day immediately prior to the effective date of the
Merger or Consolidation; and with respect to a conversion of
any of the Series C Preference Stock pursuant to Subsection
F(c)(iii), the business day immediately prior to the
effective date of the conversion as set forth in the notice
given by the Corporation in connection therewith; and
(F) the term "Trading Date" shall mean (1) a date on
which the New York Stock Exchange (or any successor to such
exchange) is open for the transaction of business, or (2) if
the Capital Stock is not at such time listed or admitted for
trading on the New York Stock Exchange (or any successor to
such Exchange), a date upon which the principal national or
regional securities exchange upon which the Capital Stock is
listed or admitted to trading is open for the transaction of
business, or (3) if not listed or admitted to trading as
described in clauses (1) or (2), and if at such time the
sales price of Capital Stock is quoted on the National
Market System of the National Association of Securities
Dealers Automated Quotations System, or any similar system
of automated dissemination of quotations of securities
prices then in common use, a date for which such system
provides quotations with respect to securities upon which it
reports, or (4) if not so quoted, and if at such time the
bid and asked prices of Capital Stock are reported by the
National Quotation Bureau Incorporated, a date for which the
National Quotation Bureau Incorporated provides bid and
asked prices with respect to securities upon which it
reports, or (5) if not so quoted, any business day.
(x) Notice of Conversion. The Corporation will provide
notice of any conversion (including any potential conversion upon
the effectiveness of a Merger or Consolidation, but not including
any conversion on the Final Conversion Date) of shares of Series
C Preference Stock to holders of record of the Series C
Preference Stock to be converted not less than 15 nor more than
60 days prior to the date fixed for such conversion; provided,
however, that if the timing of the effectiveness of a Merger or
Consolidation makes it impracticable to provide at least 15 days
notice, the Corporation shall provide such notice as soon as
practicable prior to such effectiveness. Such notice shall be
provided by mailing notice of such conversion first class postage
prepaid, to each holder of record of the Series C Preference
Stock to be converted, at such holder's address as it appears on
the stock register of the Corporation, and by publishing notice
thereof in The Wall Street Journal or The New York Times or, if
neither such newspaper is then being published, any other daily
newspaper of national circulation (each, an "Authorized
Newspaper"). Each such mailed or published notice shall state,
as appropriate, the following:
(A) the conversion date;
(B) the number of shares of Series C Preference Stock
to be converted and, if less than all the shares held by
such holder are to be converted, the number of such shares
to be converted;
(C) the number of shares of Capital Stock deliverable
upon conversion;
(D) whether the Corporation is exercising any option to
deliver shares of Capital Stock in lieu of cash and the
Current Market Price to be used to calculate the number of
such shares of Capital Stock;
(E) the place or places where certificates for such
shares are to be surrendered for conversion; and
(F) that dividends on the shares of Series C
Preference Stock to be converted will cease to accrue on
such conversion date.
The Corporation's obligation to deliver shares of Capital
Stock and provide cash in accordance with this Subsection F(c)(x)
shall be deemed fulfilled if, on or before a conversion date, the
Corporation shall deposit, with a bank or trust company having an
office or agency in the Borough of Manhattan in New York City, or
which has an affiliate or correspondent having an office or
agency in the Borough of Manhattan in New York City, which
depository has a capital and surplus of at least $50,000,000,
such number of shares of Capital Stock as are required to be
delivered by the Corporation pursuant to this Subsection F(c)
upon the occurrence of the related conversion (including the
payment of fractional share amounts), together with shares of
Capital Stock and/or cash sufficient to pay all accrued and
unpaid dividends and/or any applicable Remaining Dividend Premium
on the shares to be converted as required by this Subsection
F(c), in trust for the account of the holders of the shares to be
converted (and so as to be and continue to be available
therefor), with irrevocable instructions and authority to such
bank or trust company that such shares and cash be delivered upon
conversion of the shares of Series C Preference Stock so
converted. Any interest accrued on such cash shall be paid to
the Corporation from time to time. Any shares of Capital Stock
or cash so deposited and unclaimed at the end of three years from
such conversion date shall be repaid and released to the
Corporation, after which the holder or holders of such shares of
Series C Preference Stock so converted shall look, subject to
applicable state escheat or unclaimed funds laws, only to the
Corporation for delivery of shares of Capital Stock and cash, if
applicable. Each holder of shares of Series C Preference Stock
to be converted shall surrender the certificates evidencing such
shares to the Corporation at the place designated in the notice
of such conversion and shall thereupon be entitled to receive
certificates evidencing shares of Capital Stock and cash, if
applicable, following such surrender and following the date of
such conversion. In case fewer than all the shares represented
by any such surrendered certificate are converted, a new
certificate shall be issued at the expense of the Corporation
representing the unconverted shares. If such notice of
conversion (if required) shall have been duly given, then,
notwithstanding that the certificates evidencing any shares of
Series C Preference Stock subject to conversion shall not have
been surrendered, the shares represented thereby subject to
conversion shall be deemed no longer outstanding, dividends with
respect to the shares subject to conversion shall cease to accrue
after the date fixed for conversion and all rights with respect
to the shares subject to conversion shall forthwith after such
date cease and terminate, except for the right of the holders to
receive the shares of Capital Stock and/or any applicable cash
amounts without interest upon surrender of their certificates
therefor; provided that if on the date fixed for conversion
shares of Capital Stock and cash, if applicable, necessary for
the conversion shall have been deposited by the Corporation in
trust for the account of the holders of the shares so to be
converted (and so as to be and continue to be available therefor)
as provided above, then the holder or holders of such shares of
Series C Preference Stock so converted shall look only to such
bank or trust company for delivery of shares of Capital Stock and
cash, if applicable, unless and until such shares of Capital
Stock and cash are repaid and released to the Corporation. If
fewer than all the outstanding shares of Series C Preference
Stock are to be converted at the option of the Corporation,
shares to be converted shall be selected by the Corporation from
outstanding shares of Series C Preference Stock by lot or pro
rata (as nearly as may be) or by any other method determined by
the Board of Directors of the Corporation in its sole discretion
to be appropriate and fair to the holders of Series C Preference
Stock.
(d) Voting Rights. (i) In addition to any voting rights to
which the holders of shares of Series C Preference Stock shall be
entitled pursuant to any other provision of the Certificate of
Incorporation or applicable law, each outstanding share of Series
C Preference Stock is entitled to vote on all matters submitted
to a vote of shareholders of the Corporation, each holder of
shares of Series C Preference Stock to have the number of votes
equal to the product of the number of shares of Series C
Preference Stock owned by such holder multiplied by the Common
Equivalent Rate in effect on the record date for determining the
shareholders of the Corporation entitled to vote. The Series C
Preference Stock and the Capital Stock shall vote as a single
class on all matters submitted to a vote of shareholders of the
Corporation.
(ii) In addition to the voting rights set forth in
Subsection F(d)(i), whenever, at any time, Preferential Dividends
payable on the Series C Preference Stock shall be in arrears with
respect to six (6) or more Preferential Dividend Payment Dates,
whether or not consecutive, the holders of shares of Series C
Preference Stock shall have the exclusive right, voting
separately as a class with holders of shares of any one or more
other series of Series Preference Stock and/or any other class or
series of shares ranking on a parity with shares of Series C
Preference Stock either as to dividends or on the distribution of
assets upon Liquidation and upon which like voting rights have
been conferred and are exercisable, to elect two directors of the
Corporation at the Corporation's next annual meeting of
shareholders and at each subsequent annual meeting of
shareholders until such right is terminated as provided in this
Subsection F(d)(ii). At elections for such directors, each
holder of shares of Series C Preference Stock shall be entitled
to the number of votes equal to the product of the number of
shares of Series C Preference Stock owned by such holder
multiplied by the Common Equivalent Rate in effect on the record
date for determining the shareholders of the Corporation entitled
to vote (the holders of shares of any other series of Series
Preference Stock and/or other class or series of shares ranking
on such a parity being entitled to such number of votes, if any,
for each share of stock held as may be applicable to them). Upon
the vesting of such voting right in the holders of shares of
Series C Preference Stock, 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 shares of Series C Preference Stock
(with the holders of shares of any one or more other class or
series of shares ranking on such a parity) as set forth herein.
The right of the holders of shares of Series C Preference Stock,
voting separately as a class with the holders of shares of any
one or more other series of Series Preference Stock and/or other
class or series of shares ranking on such a parity, to elect
members of the Board of Directors of the Corporation as aforesaid
shall continue until such time as all dividends accumulated on
shares of Series C Preference Stock shall have been paid or
deposited for payment in full, at which time such right shall
terminate, except as by law expressly provided, subject to
revesting in the event of each and every subsequent default of
the character above mentioned.
Upon any termination of the right of the holders of Series C
Preference Stock and, if applicable, the holders of shares of any
one or more other series of Series Preference Stock and/or other
class or series of shares ranking on such a parity to vote as a
class for directors as herein provided, the term of office of all
directors then in office elected by shares of Series C Preference
Stock and such other series voting as a class shall terminate
immediately. If the office of any director elected by the
holders of shares of Series C Preference Stock and, if
applicable, the holders of shares of any one or more other series
of Series Preference Stock and/or other class or series of shares
on such a parity, 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 shares of Series C Preference Stock and, if
applicable, the holders of shares of any one or more other series
of Series Preference Stock and/or other class or series of shares
ranking on such a parity, 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 special voting
powers vested in the holders of shares of Series C Preference
Stock and the holders of shares of any one or more other series
of Series Preference Stock and/or other class or series of shares
ranking on such a parity to vote as a class for directors as
provided in this Subsection F(d)(ii) shall have expired, the
number of directors shall become such number as may be provided
for in the By-Laws, or resolution of the Board of Directors
thereunder, irrespective of any increase made pursuant to the
provisions of this Subsection F(d)(ii).
(e) Increase in Shares. The number of shares of Series C
Preference Stock may, to the extent of the Corporation's
authorized and unissued Series Preference Stock, be increased by
further resolution duly adopted by the Board of Directors and the
filing of an amendment to the Certificate of Incorporation of the
Corporation.
(f) Exclusive Rights. Each holder of shares of Series C
Preference Stock shall hold such Series C Preference Stock
subject to the right of the Corporation to effect a conversion in
accordance with the provisions of Subsection F(c) hereof and, in
the event of such a conversion shall have the right to receive,
as full payment, discharge and satisfaction of the obligations of
the Corporation with respect to such Series C Preference Stock,
only those shares of Capital Stock and cash, if applicable,
delivered as provided in accordance with Subsection F(c) hereof.
CERTIFICATE OF AMENDMENT
TO THE
RESTATED CERTIFICATE OF INCORPORATION
OF
CHIQUITA BRANDS INTERNATIONAL, INC.
TO: Secretary of State
State of New Jersey
Pursuant to the provisions of N.J.S. 14A:7-2(2), the
undersigned corporation, Chiquita Brands International, Inc. (the
"Corporation"), executes the following Certificate of Amendment
to its Restated Certificate of Incorporation, as amended (the
"Certificate of Incorporation").
1. The name of the corporation is Chiquita Brands
International, Inc.
2. The following resolutions, establishing and designating
a series of shares and fixing and determining the
relative rights and preferences thereof, were duly
adopted by the Executive Committee of the Board of
Directors of the Corporation as of the 8th day of
February, 1994, pursuant to the authority vested in the
Board of Directors by the Certificate of Incorporation,
exercised on behalf of the Board of Directors by the
Executive Committee pursuant to resolutions of the
Board of Directors so authorizing it to act:
RESOLVED, that pursuant to the authority
expressly vested in the Executive Committee of the
Board of Directors of the Corporation by the
Restated Certificate of Incorporation, as amended,
and by resolutions of the Board of Directors, the
Executive Committee of the Board of Directors
hereby classifies Two Million, Eight Hundred
Seventy-Five Thousand (2,875,000) shares of the
Corporation's Non-Voting Cumulative Preferred
Stock as a new series designated "$2.875 Non-
Voting Cumulative Preferred Stock, Series A,"
$1.00 par value (the "Series A Preferred Stock").
RESOLVED, that the terms and conditions
of the Series A Preferred Stock, including
its rights, preferences, privileges, voting
powers, restrictions, qualifications,
limitations, and terms and conditions for
conversion shall be as set forth in Exhibit A
attached hereto.
RESOLVED, that the Corporation's Restated
Certificate of Incorporation, as amended, is
hereby further amended to add to Section IV of
such certificate a new Subsection G entitled
"Special Provisions Applicable to Series A
Preferred Stock," in the form attached hereto as
Exhibit A, and the proper officers of the
Corporation are authorized to execute and file, as
necessary, any documents or certificates with the
New Jersey Secretary of State to effect such
amendment.
3. The resolutions were adopted by unanimous written
consent by the Executive Committee of the Board of
Directors as of February 8, 1994.
4. The Certificate of Incorporation is further amended so
that the designation and number of shares of each class
and series acted upon in the resolutions, and the
relative rights, preferences and limitations of each
such class and series are as stated in Exhibit A
attached hereto, which is the same exhibit referred to
in the foregoing resolutions.
IN WITNESS WHEREOF, the undersigned has signed this
Certificate of Amendment to the Certificate of Incorporation this
10th day of February, 1994.
CHIQUITA BRANDS INTERNATIONAL, INC.
By:/s/ William A. Tsacalis
--------------------------------
William A. Tsacalis
Vice President and
Controller
EXHIBIT A
SUBSECTION G. SPECIAL PROVISIONS APPLICABLE TO SERIES A
PREFERRED STOCK
There is hereby established Series A Preferred Stock which
shall be designated "$2.875 Non-Voting Cumulative Preferred
Stock, Series A" $1.00 par value ("Series A Preferred Stock") and
shall consist of Two Million, Eight Hundred Seventy-Five Thousand
(2,875,000) shares, and no more. The relative, participating,
optional and other special rights and the qualifications,
limitations and restrictions of the Series A Preferred Stock
shall be as follows:
(a) Dividends.
(i) The holders of outstanding shares of the Series A
Preferred Stock shall be entitled to receive (subject to the
rights of holders of shares of Mandatorily Exchangeable
Cumulative Preference Stock, Series C, or any series of Non-
Voting Cumulative Preferred Stock or Series Preference Stock
and/or any other class or series of preferred or preference stock
which the Corporation may in the future issue which ranks prior
to or on a parity with the Series A Preferred Stock as to
dividends), when, as and if declared by the Board of Directors
out of funds legally available therefor, cumulative preferential
cash dividends at the per share rate of $.71875 per quarter and
no more ("Preferential Dividends"), payable on the seventh (7th)
day of March, June, September and December of each year (each
such date being hereinafter referred to as a "Preferential
Dividend Payment Date") commencing June 7, 1994; provided,
however, that the Preferential Dividend payable on June 7, 1994
(the "Initial Preferential Dividend") with respect to any share
of Series A Preferred Stock outstanding on the record date for
the Initial Preferential Dividend shall be computed in accordance
with Subsection G(a)(iv). If June 7, 1994 or any other
Preferential Dividend Payment Date shall not be a business day,
then the Preferential Dividend Payment Date shall be on the next
succeeding business day. Each such dividend will be payable to
holders of record as they appear on the stock books of the
Corporation on such record date, not less than 10 nor more than
60 days preceding the Preferential Dividend Payment Date, as
shall be fixed by the Board of Directors. Dividends on the
Series A Preferred Stock shall accrue from the date of issuance
of the Series A Preferred Stock, and dividends accrued as of each
Preferential Dividend Payment Date shall accumulate to the extent
not paid on such date. Accumulated unpaid dividends shall not
bear interest. All payments of Preferential Dividends to holders
of Series A Preferred Stock shall be rounded up to the nearest
whole cent.
(ii) So long as any shares of Series A Preferred Stock
are outstanding:
(A) no dividend (other than a dividend or distribution
paid in shares of, or warrants or rights to subscribe for or
purchase shares of, Capital Stock or any other stock of the
Corporation ranking junior to the Series A Preferred Stock as to
dividends and upon liquidation) shall be declared or paid or set
aside for payment or other distribution declared or made upon the
Capital Stock or upon any other stock of the Corporation ranking
junior to or (except as provided in the following sentence) on a
parity with the Series A Preferred Stock as to dividends,
(B) nor shall any Capital Stock nor any other stock of
the Corporation ranking junior to or on a parity with the Series
A Preferred Stock as to dividends be redeemed, purchased or
otherwise acquired for any consideration (or any moneys be paid
to or made available for a sinking fund for the redemption of any
shares of any such stock) by the Corporation (except by
conversion into or exchange for stock of the Corporation ranking
junior to the Series A Preferred Stock as to dividends and upon
liquidation),
(C) nor shall the Corporation purchase or otherwise
acquire (except pursuant to a purchase or exchange offer made on
the same terms to all holders of shares of Series A Preferred
Stock), or convert in part, but not in whole, into shares of
Capital Stock at the option of the Corporation pursuant to
Subsection G(c)(ii) outstanding shares of Series A Preferred
Stock,
unless, in each case, the full Preferential Dividends, if any,
accumulated on all outstanding shares of the Series A Preferred
Stock through the most recent Preferential Dividend Payment Date
shall have been paid or deposited for payment or
contemporaneously are declared and paid or deposited for payment.
When dividends have not been paid in full upon the shares of
Series A Preferred Stock, all dividends and other distributions
declared upon the Series A Preferred Stock and any other shares
of the Corporation ranking on a parity as to dividends and such
other distributions with the shares of Series A Preferred Stock
shall be declared pro rata so that the amount of dividends and
other distributions declared per share on the Series A Preferred
Stock and such other shares shall in all cases bear to each other
the same ratio that accumulated unpaid dividends per share on the
shares of Series A Preferred Stock and such other shares bear to
each other. Holders of the shares of Series A Preferred Stock
shall not be entitled to any dividends, whether payable in cash,
property or stock, in excess of full cumulative dividends, as
herein provided.
(iii) Any dividend payment made on shares of Series A
Preferred Stock shall first be credited against the earliest
accumulated unpaid dividend due with respect to shares of Series
A Preferred Stock.
(iv) Any dividends payable for any period greater or less
than a full quarterly dividend period shall be computed on the
basis of a 360-day year consisting of twelve 30-day months.
(b) Liquidation.
(i) Upon any dissolution, liquidation or winding up of the
affairs of the Corporation, whether voluntary or involuntary
(collectively, a "Liquidation"), the holders of shares of Series
A Preferred Stock shall be entitled to receive out of the assets
of the Corporation available for distribution to shareholders,
after payment of all debts and other liabilities of the
Corporation and all liquidation preferences of holders of shares
of any class or series of preferred or preference stock which the
Corporation may in the future issue which ranks prior to the
Series A Preferred Stock with respect to liquidation rights, but
before any distribution or payment is made to holders of Capital
Stock of the Corporation or on any other shares of the
Corporation ranking junior to the shares of Series A Preferred
Stock upon liquidation, liquidating distributions in the amount
of $50 per share, plus an amount equal to all accumulated unpaid
Preferential Dividends thereon to the date of Liquidation, and no
more. If upon any Liquidation the amounts payable with respect
to the Series A Preferred Stock and any other shares of the
Corporation ranking as to any such distribution on a parity with
the Series A Preferred Stock are not paid in full, the holders of
shares of Series A Preferred Stock and of such other shares will
share ratably in any such distribution of assets of the
Corporation in proportion to the full respective distributable
amounts to which they are entitled. After payment of the full
amount of the liquidating distribution to which they are
entitled, the holders of shares of Series A Preferred Stock will
not be entitled to any further participation in any distribution
or payments by the Corporation.
(ii) Neither the merger nor consolidation of the Corporation
into or with any other corporation or other entity, nor the
merger or consolidation of any other corporation or other entity
into or with the Corporation, nor a sale, transfer or lease of
all or any part of the assets of the Corporation for cash,
securities or other property, shall be deemed to be a Liquidation
for purposes of this Subsection G(b).
(c) Conversions.
(i) Automatic Conversion Upon the Occurrence of Certain
Events. Immediately prior to the effectiveness of a merger or
consolidation of the Corporation that results in the conversion
or exchange of the Capital Stock into or for, or that results in
the holders of Capital Stock obtaining the right to receive,
cash, securities or other assets, whether of the Corporation or
of any other person or entity (any such merger or consolidation
is referred to herein as a "Merger or Consolidation"), other than
a Merger or Consolidation in which the Series A Preferred Stock
remains outstanding and holders of Series A Preferred Stock
obtain the right to receive upon conversion of their shares into
Capital Stock or any other security the same cash, securities or
other assets that they would have received with respect to the
maximum number of shares of Capital Stock which such holders
would have received (other than in payment of accumulated unpaid
dividends) upon conversion of their shares of Series A Preferred
Stock (at the option of the Corporation pursuant to clause (ii)
of this Subsection G(c) or at the option of the holder pursuant
to clause (iii) of this Subsection G(c), whichever is greater)
immediately prior to the effectiveness of the Merger or
Consolidation, each outstanding share of Series A Preferred Stock
shall automatically convert into the maximum number of shares of
Capital Stock which such holders would have received (other than
in payment of accumulated unpaid dividends) upon conversion of
their shares of Series A Preferred Stock (at the option of the
Corporation pursuant to clause (ii) of this Subsection G(c) or at
the option of the holder pursuant to clause (iii) of this
Subsection G(c), whichever is greater), plus the right to receive
an amount of cash equal to the accumulated unpaid dividends on
such share of Series A Preferred Stock to and including the
Settlement Date (as defined in Subsection G(c)(viii)).
(ii) Conversion at the Option of the Corporation. (A) At any
time and from time to time on and after February 15, 1997 and
prior to February 15, 2001, and upon notice given as provided
herein, the Corporation may convert, in whole or in part, the
outstanding shares of Series A Preferred Stock; provided,
however, that the Corporation may exercise its right to convert
only if the Market Price (as defined in Subsection G(c)(viii)) of
the Capital Stock for 20 Trading Dates (as defined in Subsection
G(c)(viii)) within any period of 30 consecutive Trading Dates,
including the last Trading Date of such 30 consecutive Trading
Date period (the "Measuring Date"), shall have exceeded $24.70
per share, subject to adjustment as provided below (the "Strike
Price"). On the date fixed for conversion, each outstanding
share of Series A Preferred Stock to be converted pursuant to
this Subsection G(c)(ii)(A) shall convert into that number of
shares of Capital Stock as shall be determined in accordance with
the Conversion Rate (as defined in Subsection G(c)(iv)) as in
effect on the date of conversion, plus the right to receive an
amount of cash equal to the accumulated unpaid dividends on such
share of Series A Preferred Stock to and including the Settlement
Date. The Strike Price shall be proportionately adjusted when, as
and if the Conversion Rate shall be adjusted pursuant to
Subsection G(c)(iv).
(B) At any time and from time to time on and after February
15, 2001, and upon notice given as provided herein, the
Corporation may convert, in whole or in part, the outstanding
shares of Series A Preferred Stock. On the date fixed for
conversion, each outstanding share of Series A Preferred Stock to
be converted pursuant to this Subsection G(c)(ii)(B) shall
convert into:
(1) the lesser of (x) that number of shares of
Capital Stock as shall equal $50 divided by the Current
Market Price (as defined in Subsection G(c)(viii)) per
share of Capital Stock on the date of conversion, or
(y) 10 shares of Capital Stock, subject to adjustment
as provided below (the "Maximum Conversion Rate"); plus
(2) the right to receive an amount of cash equal
to the accumulated unpaid dividends on such share of
Series A Preferred Stock to and including the
Settlement Date; plus
(3) the right to receive an amount of cash equal
to dividends accrued since the immediately preceding
Preferential Dividend Payment Date, calculated in
accordance with Subsection G(a)(iv); provided, however,
that no amount shall be due and payable pursuant to
this clause (3) if the conversion date follows a record
date for the payment of a Preferential Dividend and
precedes the next succeeding Preferential Dividend
Payment Date.
The Maximum Conversion Rate shall be proportionately adjusted
when, as and if the Conversion Rate shall be adjusted pursuant to
Subsection G(c)(iv).
(iii) Conversion at the Option of the Holder. At any time
and from time to time after the 60th day following the final
closing of the initial public offering of Series A Preferred
Stock, each holder of Series A Preferred Stock shall have the
right to convert, in whole or in part, the outstanding shares of
Series A Preferred Stock; provided, however, that if the shares
of Series A Preferred Stock to be converted have been earlier
called for conversion at the option of the Corporation, the right
of the holder to convert such shares will terminate as of 5:00
P.M., New York City time, on the business day immediately
preceding the date fixed for such conversion. Each outstanding
share of Series A Preferred Stock to be converted at the option
of the holder shall convert into that number of shares of Capital
Stock as shall be determined in accordance with the Conversion
Rate in effect on the Settlement Date, plus the right to receive
an amount of cash equal to the accumulated unpaid dividends on
such share of Series A Preferred Stock to be converted to and
including the Settlement Date. In order to convert shares of
Series A Preferred Stock into Capital Stock the holder thereof
shall surrender, at the office in the United States designated by
the Corporation in writing from time to time for registration of
transfers and conversion, the certificate or certificates
therefor, duly endorsed to the Corporation or in blank, and give
written notice to the Corporation at said office that such holder
elects to convert such shares and shall state in writing therein
the name or names (with addresses) in which such holder wishes
the certificate or certificates for Capital Stock to be issued.
Shares of Series A Preferred Stock surrendered for conversion
after the close of business on a record date for payment of
Preferential Dividends and before 9:00 A.M., New York time, on
the next succeeding Preferential Dividend Payment Date must be
accompanied by payment of an amount equal to the Preferential
Dividend thereon which is to be paid on such Preferential
Dividend Payment Date. Shares of Series A Preferred Stock shall
be deemed to have been converted on the date of the surrender of
such certificate or certificates for shares for conversion as
provided above, and the person or persons entitled to receive the
Capital Stock issuable upon such conversion shall be treated for
all purposes as the record holder or holders of such Capital
Stock on such date. As soon as practicable on or after the date
of conversion as aforesaid, the Corporation will issue and
deliver a certificate or certificates for the number of full
shares of Capital Stock issuable upon such conversion, together
with cash for any fraction of a share, as provided in Subsection
G(c)(vi), to the person or persons entitled to receive the same.
(iv) Conversion Rate; Adjustments. The Conversion Rate to
be used to determine the number of shares of Capital Stock to be
delivered on the conversion of the Series A Preferred Stock into
shares of Capital Stock pursuant to Subsections G(c)(i), (ii) and
(iii) shall be initially 2.6316 shares of Capital Stock for each
share of Series A Preferred Stock; provided, however, that such
Conversion Rate shall be subject to adjustment from time to time
as provided below in this Subsection G(c)(iv). All adjustments
to the Conversion Rate shall be calculated in 1/100ths of a share
of Capital Stock. No adjustment of less than one percent (1%) of
the Conversion Rate shall be required; however, any such
adjustment not made due to such limitation shall be carried
forward and shall be taken into account in any subsequent
adjustment. Such rate in effect at any time is herein called the
"Conversion Rate."
(A) If the Corporation shall:
(1) pay a dividend or make a distribution
with respect to the Capital Stock in shares of
Capital Stock (other than a dividend or
distribution which is also paid to holders of
Series A Preferred Stock and in which such holders
shall receive, with respect to each share of
Series A Preferred Stock, the same number of
shares of Capital Stock as shall be distributed
with respect to the maximum number of shares of
Capital Stock into which such share of Preferred
Stock shall then be convertible at the option of
the Corporation pursuant to Subsection G(c)(ii) or
at the option of the holder pursuant to Subsection
G(c)(iii), whichever is greater),
(2) subdivide or split its outstanding shares
of Capital Stock,
(3) combine its outstanding shares of Capital
Stock into a smaller number of shares, or
(4) issue by reclassification of its shares
of Capital Stock any shares of Capital Stock of
the Corporation,
then, in any such event, the Conversion Rate shall be
adjusted by multiplying the Conversion Rate in effect
immediately prior to the date of such event by a fraction,
of which the numerator shall be the number of outstanding
shares of Capital Stock immediately following such event,
and of which the denominator shall be the number of
outstanding shares of Capital Stock immediately prior to
such event. Such adjustment shall become effective at the
opening of business on the business day next following the
record date for determination of shareholders entitled to
receive such dividend or distribution in the case of a
dividend or distribution and shall become effective
immediately after the effective date in case of a
subdivision, split, combination, or reclassification.
(B) If the Corporation shall pay a dividend or make a
distribution to all holders of its Capital Stock of evidence
of its indebtedness or other assets (including securities of
the Corporation but excluding any regular quarterly
dividends payable solely in cash out of funds legally
available therefor at a rate fixed from time to time by the
Board of Directors or distributions and dividends referred
to in clause (A) above), or shall distribute to all holders
of its Capital Stock rights or warrants to subscribe for or
purchase securities of the Corporation or any of its
subsidiaries (in each case other than a dividend or
distribution which is also paid or made to holders of Series
A Preferred Stock in which such holders shall receive, with
respect to each share of Series A Preferred Stock, the same
evidence of indebtedness or other assets, or the same rights
or warrants, as shall be paid or distributed with respect to
the maximum number of shares of Capital Stock into which
each share of Preferred Stock shall then be convertible at
the option of the Corporation pursuant to Subsection
G(c)(ii) or at the option of the holder pursuant to
Subsection(G)(c)(iii), whichever is greater), then in each
such case the Conversion Rate shall be adjusted by
multiplying the Conversion Rate in effect immediately prior
to the date of such distribution by a fraction, of which the
numerator shall be the Current Market Price per share of
Capital Stock on the record date mentioned below, and of
which the denominator shall be such Current Market Price per
share of Capital Stock less the fair market value (as
determined by the Board of Directors of the Corporation,
whose determination shall be conclusive) as of such record
date of the portion of the assets or evidences of
indebtedness so distributed, or of such subscription rights
or warrants, applicable to one share of Capital Stock. Such
adjustment shall become effective on the opening of business
on the business day next following the record date for the
determination of shareholders entitled to receive such
distribution.
(C) Anything in this Subsection G(c)(iv)
notwithstanding, the Board of Directors shall be entitled to
make such upward adjustments in the Conversion Rate, in
addition to those required by this Subsection G(c)(iv), (1)
as the Board of Directors in its discretion shall determine
to be advisable, in order that any stock dividends,
subdivision of shares, distribution of rights to purchase
stock or securities, or a distribution of securities
convertible into or exchangeable for stock (or any
transaction which could be treated as any of the foregoing
transactions pursuant to Section 305 of the Internal Revenue
Code of 1986, as amended, or any successor section thereto)
hereafter made by the Corporation to its shareholders shall
not be taxable; and (2) as the Board of Directors in its
discretion shall determine to be necessary or appropriate in
order to preserve the relative rights of the holders of
Capital Stock, on the one hand, and the holders of Series A
Preferred Stock, on the other hand, as such rights are set
forth in this Certificate of Incorporation.
(D) In any case in which this Subsection G(c)(iv)
shall require that an adjustment as a result of any event
become effective at the opening of business on the business
day next following a record date, and the date fixed for
conversion pursuant to Subsection G(c)(i), (ii) or (iii)
occurs after such record date, but before the occurrence of
such event, the Corporation may in its sole discretion elect
to defer the following until after the occurrence of such
event:
(1) issuing to the holder of any shares of the
Series A Preferred Stock surrendered for conversion the
additional shares of Capital Stock issuable upon such
conversion over and above the shares of Capital Stock
issuable upon such conversion on the basis of the
Conversion Rate prior to adjustment; and
(2) paying to such holder any amount in cash in
lieu of a fractional share of Capital Stock pursuant to
Subsection G(c)(vi).
(v) Notice of Adjustments. Whenever the Conversion Rate is
adjusted as herein provided, the Corporation shall:
(A) forthwith compute the adjusted Conversion Rate in
accordance with Subsection G(c)(iv) and prepare a
certificate signed by the Chief Executive Officer, the
Chairman, the President, any Vice President or the Treasurer
of the Corporation setting forth the adjusted Conversion
Rate, Maximum Conversion Rate and, if applicable, Strike
Price, the method of calculation thereof in reasonable
detail and the facts requiring such adjustment and upon
which such adjustment is based, and file such certificate
forthwith with the transfer agent or agents for the Series A
Preferred Stock and the Capital Stock; and
(B) mail a notice stating that the Conversion Rate,
Maximum Conversion Rate and, if applicable, Strike Price,
have been adjusted, the facts requiring such adjustment and
upon which such adjustment is based and setting forth the
adjusted Conversion Rate, Maximum Conversion Rate and, if
applicable, Strike Price, to the holders of record of the
outstanding shares of the Series A Preferred Stock at or
prior to the time the Corporation mails an interim financial
statement to its shareholders covering the quarter-yearly
fiscal period during which the facts requiring such
adjustment occurred, but in any event within 45 days of the
end of such quarter-yearly fiscal period.
In addition to the foregoing, the Corporation will calculate and
provide notice to the transfer agent or agents for the Series A
Preferred Stock and the Capital Stock within 30 days after (1)
the date of initial issuance of the shares of Series A Preferred
Stock, or (2) the occurrence of any event triggering an
adjustment of the Maximum Conversion Rate, of the number of
shares of Capital Stock required to be reserved for issuance upon
conversion of the issued and outstanding shares of Series A
Preferred Stock; provided that no such notice need be sent if the
number of shares of Capital Stock then reserved is in excess of
the number of shares of Capital Stock required to be reserved as
so calculated.
(vi) No Fractional Shares. No fractional shares of Capital
Stock shall be issued upon conversion of shares of Series A
Preferred Stock but, in lieu of any fraction of a share of
Capital Stock which would otherwise be issuable in respect of the
aggregate number of shares of the Series A Preferred Stock
surrendered by the same holder for conversion on any conversion
date, the holder shall have the right to receive an amount in
cash equal to the same fraction of the Current Market Price of
the Capital Stock on the date of conversion.
(vii) Cancellation. All shares of Series A Preferred Stock
which shall have been converted into shares of Capital Stock or
which shall have been purchased or otherwise acquired by the
Corporation shall assume the status of authorized but unissued
shares of Non-Voting Cumulative Preferred Stock undesignated as
to series.
(viii) Definitions. As used in this Subsection G:
(A) The term "business day" shall mean any day other
than a Saturday, Sunday, or a day on which banking
institutions in the States of New York or Ohio are
authorized or obligated by law or executive order to close.
(B) The term "Current Market Price" per share of
Capital Stock on any day shall be the average of the daily
Market Prices for the five consecutive Trading Dates ending
on the Trading Date immediately preceding the date of
determination of the Current Market Price (appropriately
adjusted to take into account the occurrence during such
five-day period, or following such five-day period and prior
to the date on which shares of Series A Preferred Stock are
converted into Capital Stock, of any event that results in
an adjustment of the Conversion Rate).
(C) The term "Market Price" for any day means (1) if
the Capital Stock is listed or admitted for trading on the
New York Stock Exchange (or any successor to such exchange)
or, if not so listed or admitted, on any national or
regional securities exchange, the last sale price, or the
closing bid price if no sale occurred, of the Capital Stock
on the principal securities exchange on which the Capital
Stock is listed, or (2) if not listed or traded as described
in clause (1), the last reported sales price of the Capital
Stock on the National Market System of the National
Association of Securities Dealers Automated Quotations
System, or any similar system of automated dissemination of
quotations of securities prices then in common use, if so
quoted, or (3) if not quoted as described in clause (2), the
mean between the high bid and the low asked quotations for
the Capital Stock as reported by the National Quotation
Bureau Incorporated if at least two securities dealers have
inserted both bid and asked quotations for the Capital Stock
on at least five of the ten preceding days. If the Capital
Stock is quoted on a national securities or central market
system in lieu of a market or quotation system described
above, then the closing price shall be determined in the
manner set forth in clause (1) of the preceding sentence if
actual transactions are reported and in the manner set forth
in clause (3) of the preceding sentence if bid and asked
quotations are reported but actual transactions are not. If
none of the conditions set forth above is met, the closing
price of Capital Stock on any day or the average of such
closing prices for any period shall be the fair market value
of the Capital Stock as determined by a member firm of the
New York Stock Exchange, Inc. (or any successor to such
exchange) selected by the Corporation.
(D) The term "Notice Date" shall mean the following:
with respect to any notice given by the Corporation in
connection with a conversion (including any potential
conversion upon the effectiveness of a Merger or
Consolidation) of any of the Series A Preferred Stock, the
date of mailing of such notice to the holders of Series A
Preferred Stock.
(E) The term "Settlement Date" shall mean the
following: with respect to a Merger or Consolidation, the
business day immediately prior to the effective date of the
Merger or Consolidation; with respect to a conversion of any
of the Series A Preferred Stock at the option of the
Corporation pursuant to Subsection G(c)(ii), the business
day immediately prior to the effective date of the
conversion as set forth in the notice given by the
Corporation in connection therewith; and with respect to a
conversion of any of the Series A Preferred Stock at the
option of the holder pursuant to Subsection G(c)(iii), the
date upon which the certificates representing shares of
Series A Preferred Stock are surrendered for conversion.
(F) The term "Trading Date" shall mean (1) a date on
which the New York Stock Exchange (or any successor to such
exchange) is open for the transaction of business, or (2) if
the Capital Stock is not at such time listed or admitted for
trading on the New York Stock Exchange (or any successor to
such Exchange), a date upon which the principal national or
regional securities exchange upon which the Capital Stock is
listed or admitted to trading is open for the transaction of
business, or (3) if not listed or admitted to trading as
described in clauses (1) or (2), and if at such time the
sales price of Capital Stock is quoted on the National
Market System of the National Association of Securities
Dealers Automated Quotations System, or any similar system
of automated dissemination of quotations of securities
prices then in common use, a date for which such system
provides quotations with respect to securities upon which it
reports, or (4) if not so quoted, and if at such time the
bid and asked prices of the Capital Stock are reported by
the National Quotation Bureau Incorporated, a date for which
the National Quotation Bureau Incorporated provides bid and
asked prices with respect to securities upon which it
reports, or (5) if not so quoted, any business day.
(ix) Notice of Conversion. The Corporation shall provide
notice of any exercise of its right to convert shares of Series A
Preferred Stock to holders of record of the Series A Preferred
Stock to be converted by mailing a notice of conversion (within
five business days after the Measuring Date, in the case of any
Notice Date with respect to a conversion date prior to February
15, 2001) to such holders, which notice will specify an effective
date of conversion that is not less than 15 nor more than 60 days
after the date of such notice. The Corporation will provide
notice of any potential conversion upon the effectiveness of a
Merger or Consolidation not less than 15 nor more than 60 days
prior to the effective date thereof; provided, however, that if
the timing of the effectiveness of a Merger or Consolidation
makes it impracticable to provide at least 15 days' notice, the
Corporation shall provide such notice as soon as practicable
prior to such effectiveness. Each such notice shall be provided
by mailing notice of such conversion first class postage prepaid,
to each holder of record of the Series A Preferred Stock to be
converted, at such holder's address as it appears on the stock
register of the Corporation. Each such notice shall state, as
appropriate, the following:
(A) the conversion date;
(B) the number of shares of Series A Preferred Stock to
be converted and, if less than all the shares held by such
holder are to be converted, the number of such shares to be
converted;
(C) the number of shares of Capital Stock deliverable
upon conversion, or a description of the formula pursuant to
which such number shall be determined;
(D) the place or places where certificates for such
shares are to be surrendered for conversion; and
(E) that dividends on the shares of Series A Preferred
Stock to be converted will cease to accrue on the effective
date of conversion.
The Corporation's obligation to deliver shares of Capital
Stock and provide cash in accordance with this Subsection
G(c)(ix) shall be deemed fulfilled if, on or before an effective
date of conversion, the Corporation shall deposit, with a bank or
trust company having an office or agency in the Borough of
Manhattan in New York City, or which has an affiliate or
correspondent having an office or agency in the Borough of
Manhattan in New York City, which depository has a capital and
surplus of at least $50,000,000, such number of shares of Capital
Stock as are required to be delivered by the Corporation pursuant
to this Subsection G(c) upon the occurrence of the related
conversion, together with cash sufficient to pay all accumulated
unpaid dividends, cash in lieu of fractional share amounts and/or
any additional payment pursuant to Subsection G(c)(ii)(B)(3), if
applicable, on the shares to be converted as required by this
Subsection G(c), in trust for the account of the holders of the
shares to be converted, with irrevocable instructions and
authority to such bank or trust company that such shares and cash
be delivered upon conversion of the shares of Series A Preferred
Stock so converted. Any interest accrued on such cash shall be
paid to the Corporation from time to time. Any shares of Capital
Stock or cash so deposited and unclaimed at the end of three
years from such conversion date shall be repaid and released to
the Corporation, after which the holder or holders of such shares
of Series A Preferred Stock so converted shall look, subject to
applicable state escheat or unclaimed funds laws, only to the
Corporation for delivery of shares of Capital Stock and cash, if
applicable. Each holder of shares of Series A Preferred Stock to
be converted shall surrender the certificates evidencing such
shares to the Corporation at the place designated in the notice
of such conversion and shall thereupon be entitled to receive
certificates evidencing shares of Capital Stock and cash, if
applicable, following such surrender and following the date of
such conversion. In case fewer than all the shares of Series A
Preferred Stock represented by any such surrendered certificate
are converted, a new certificate shall be issued at the expense
of the Corporation representing the unconverted shares. If such
notice of conversion (if required) shall have been duly given,
then, notwithstanding that the certificates evidencing any shares
of Series A Preferred Stock subject to conversion shall not have
been surrendered, the shares represented thereby subject to
conversion shall be deemed no longer outstanding, dividends with
respect to the shares of Series A Preferred Stock subject to
conversion shall cease to accrue after the date fixed for
conversion and all rights with respect to such shares subject to
conversion shall forthwith after such date cease and terminate,
except for the right of the holders to receive the shares of
Capital Stock and/or any applicable cash amounts without interest
upon surrender of their certificates therefor; provided that if
on the date fixed for conversion shares of Capital Stock and
cash, if applicable, necessary for the conversion shall have been
deposited by the Corporation in trust for the account of the
holders of the shares of Series A Preferred Stock so to be
converted as provided above, then the holder or holders of such
shares of Series A Preferred Stock so converted shall look only
to such bank or trust company for delivery of shares of Capital
Stock and cash, if applicable, unless and until such shares of
Capital Stock and cash are repaid and released to the
Corporation. No holder of a certificate of shares of Series A
Preferred Stock shall be, or have any rights as, a holder of the
shares of Capital Stock issuable in connection with the
conversion thereof, including, without limitation, voting rights
or the right to receive any dividend from the Corporation with
respect to such shares of Capital Stock, until surrender of such
certificate for a certificate representing such Capital Stock.
Upon such surrender, there shall be paid to the holder the amount
of any dividend or other distribution (without interest) which
became payable in respect of the number of whole shares of
Capital Stock issuable upon such surrender on or after the
conversion date, but which was not paid by reason of any earlier
failure to surrender certificates that represented shares of
Series A Preferred Stock. If fewer than all the outstanding
shares of Series A Preferred Stock are to be converted at the
option of the Corporation, shares to be converted shall be
selected by the Corporation from outstanding shares of Series A
Preferred Stock by lot or pro rata (as nearly as may be) or by
any other method reasonably determined by the Board of Directors
of the Corporation to be appropriate and fair to the holders of
Series A Preferred Stock.
(x) Corporation's Option to Pay Accumulated Unpaid Dividends
in Common Stock Upon Conversion on or after February 15, 2001.
Notwithstanding anything to the contrary contained herein, if the
effective date of any conversion is on or after February 15, 2001
and if on such date there are accumulated unpaid dividends with
respect to the Series A Preferred Stock to be so converted, then
on such effective date the Corporation may deliver, in lieu of
any cash payment in respect of accumulated unpaid dividends and,
if applicable, any additional payment pursuant to Subsection
G(c)(ii)(B)(3), that number of shares of Capital Stock the
aggregate Current Market Price of which on such date shall equal
the amount of such cash payment. Such option may be exercised by
the Corporation for all or part of such cash payment.
(xi) No Interest on Accumulated Unpaid Dividends. Any
payment with respect to accumulated unpaid dividends upon
conversion of shares of Series A Preferred Stock, whether such
payment is made in cash or, pursuant to Subsection G(c)(x), in
shares of Capital Stock, shall not provide for any interest on
such accumulated unpaid dividends.
(d) Voting Rights.
(i) Holders of Series A Preferred Stock shall have no right
to vote on any matter submitted to a vote of shareholders of the
Corporation, except as otherwise provided by applicable law and
this Subsection G(d). In addition to any voting rights to which
the holders of shares of Series A Preferred Stock shall be
entitled pursuant to applicable law, whenever, at any time,
Preferential Dividends payable on the Series A Preferred Stock
shall be in arrears with respect to six (6) or more Preferential
Dividend Payment Dates, whether or not consecutive, the holders
of shares of Series A Preferred Stock shall have the right,
voting separately as a class with holders of shares of any one or
more series of Non-Voting Cumulative Preferred Stock, Series
Preference Stock and/or any other class or series of shares
ranking on a parity with shares of Series A Preferred Stock as to
dividends and upon which like voting rights have been conferred
and are exercisable, to elect two directors of the Corporation at
the Corporation's next meeting of shareholders at which directors
are to be elected and at each subsequent meeting of shareholders
at which directors are to be elected until such right is
terminated as provided in this Subsection G(d). Upon the vesting
of such voting right in the holders of shares of Series A
Preferred Stock, 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 shares of Series A Preferred Stock (voting as a class
with the holders of shares of any one or more other class or
series of shares ranking on such a parity) as set forth herein.
The right of the holders of shares of Series A Preferred Stock to
elect members of the Board of Directors of the Corporation as
aforesaid shall continue until such time as all dividends
accumulated on shares of Series A Preferred Stock shall have been
paid or deposited for payment in full, at which time such right
shall terminate, except as by law expressly provided, subject to
revesting in the event of each and every subsequent default of
the character above mentioned.
(ii) Upon any termination of the right of the holders of
Series A Preferred Stock and, if applicable, the holders of
shares of any one or more other series of Non-Voting Cumulative
Preferred Stock, Series Preference Stock and/or other class or
series of shares ranking on such a parity to vote as a class for
directors as herein provided, the term of office of all directors
then in office elected by shares of Series A Preferred Stock and
such other series voting as a class shall terminate immediately.
If the office of any director elected by the holders of shares of
Series A Preferred Stock and, if applicable, the holders of
shares of one or more other series of Non-Voting Cumulative
Preferred Stock, Series Preference Stock and/or other class or
series of shares on such a parity, 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 shares of Series A
Preferred Stock and, if applicable, the holders of shares of any
one or more other series of Non-Voting Cumulative Preferred
Stock, Series Preference Stock and/or other class or series of
shares ranking on such a parity, 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 special voting
powers vested in the holders of shares of Series A Preferred
Stock and the holders of shares of any one or more other series
of Non-Voting Cumulative Preferred Stock, Series Preference Stock
and/or other class or series of shares ranking on such a parity
to vote as a class for directors as provided in this Subsection
G(d)(ii) shall have expired, the number of directors shall become
such number as may be provided for in the By-Laws, or resolution
of the Board of Directors thereunder, irrespective of any
increase made pursuant to the provisions of this Subsection
G(d)(ii).
(iii) While any Series A Preferred Stock is outstanding,
the Corporation shall not, without the affirmative consent (given
in writing or at a meeting duly called for that purpose) of the
holders of at least two-thirds (2/3rds) of the aggregate number
of votes entitled to be exercised by holders of all affected
series of Non-Voting Cumulative Preferred Stock then outstanding
(provided that each other series shall have voting rights similar
or identical to the voting rights set forth in this Subsection
G(d)(iii)): (A) amend the Certificate of Incorporation of the
Corporation to authorize the creation of any class or series of
stock having a preference as to dividends or upon liquidation
senior to or on a parity with the Series A Preferred Stock
(hereinafter in this Subsection (G)(d)(iii) referred to as
"Senior Stock"); provided, however, that no such approval of
holders of Series A Preferred Stock (or other affected series of
Non-Voting Cumulative Preferred Stock having similar voting
rights) shall be required to amend the Certificate of
Incorporation of the Corporation to authorize the creation of any
series of Senior Stock that may be authorized out of the Non-
Voting Cumulative Preferred Stock or the Series Preference Stock,
the terms of which may be established by any amendment to the
Certificate of Incorporation of the Corporation which may be
adopted by the Board of Directors of the Corporation without
shareholder approval, or (B) amend, alter or repeal the
Certificate of Incorporation of the Corporation in a manner that
would materially adversely affect the terms of Series A Preferred
Stock.
(iv) With respect to any matter upon which holders of shares
of Series A Preferred Stock shall be entitled to vote pursuant to
this Subsection G(d), each such holder shall be entitled to
exercise the number of votes equal to the maximum number of
shares of Capital Stock into which the shares of Series A
Preferred Stock held by such holder shall then be convertible at
the option of the Corporation pursuant to Subsection G(c)(ii) or
at the option of the holder pursuant to Subsection (G)(c)(iii),
whichever is greater, on the record date for determining the
shareholders of the Corporation entitled to vote.
(e) Increase in Shares.
The number of shares of Series A Preferred Stock may, to the
extent of the Corporation's authorized and unissued Non-Voting
Cumulative Preferred Stock, be increased by further resolution
duly adopted by the Board of Directors and the filing of an
amendment to the Certificate of Incorporation of the Corporation.
(f) Exclusive Rights.
Each holder of shares of Series A Preferred Stock shall hold
such Series A Preferred Stock subject to the right of the
Corporation to effect a conversion in accordance with the
provisions of Subsection G(c) hereof and, in the event of such a
conversion, shall have the right to receive, as full payment,
discharge and satisfaction of the obligations of the Corporation
with respect to such Series A Preferred Stock, only those shares
of Capital Stock and cash, if applicable, delivered as provided
in accordance with Subsection G(c) hereof.
(g) Equal Rank.
All shares of Series A Preferred Stock shall be identical in
all respects, and all shares of Series A Preferred Stock shall be
of equal rank with shares of Mandatorily Exchangeable Cumulative
Preference Stock, Series C, in respect of the preference as to
dividends and to payments upon the Liquidation of the
Corporation.