Exhibit 3(9)
RESTATED CERTIFICATE OF INCORPORATION
of
XEROX CORPORATION
Under Section 807 of the Business Corporation Law
RESTATED CERTIFICATE OF INCORPORATION
OF
XEROX CORPORATION
UNDER SECTION 807 OF THE
BUSINESS CORPORATION LAW
We, the undersigned, PAUL A. ALLAIRE and E. M. FILTER,
being respectively the Chairman of the Board and the Secretary
of XEROX CORPORATION, DO HEREBY CERTIFY that:
1. The name of the Corporation is "XEROX CORPORATION".
The name under which it was formed is "THE HALOID COMPANY".
2. The Certificate of Incorporation was filed in the
Office of the Secretary of State of the State of New York on
April 18, 1906.
3. This restatement of the Certificate of Incorporation
was authorized by a resolution adopted by the Board of
Directors of the Corporation at a meeting thereof duly called
and held and includes a change in the post office address for
service of process authorized by the Board of Directors of the
Corporation at the same meeting. The text of the Certificate
of Incorporation, as amended heretofore, is hereby restated to
read as herein set forth in full:
FIRST: The name of the Corporation is XEROX CORPORATION.
SECOND: The purposes for which it is formed are as
follows:
To engage in the invention, development, production,
operation, sale or lease of devices, papers and other
items, processes, and services, relating to the
communications, photographic, printing and image
reproduction arts;
To engage in any commercial, mercantile, manufacturing,
mining, industrial,importing, exporting or trading
business, venture, activity or service or other
business,venture, activity or service of a kind or type
described in these purposes;
To engage in scientific and technological research and
pursuits of every lawful kind and description and to
utilize, employ and exploit any and all knowledge
resulting therefrom;
To purchase, lease or otherwise acquire, own, hold,
sell, mortgage, charge or otherwise dispose of, invest,
trade and deal in and with real and personal property
of every kind and description.
THIRD: The office of the Corporation is to be located in
the City of Rochester, Monroe County, New York.
FOURTH: The aggregate number of shares which the
Corporation shall have the authority to issue is 1,050,000,000
shares of Common Stock, of the par value of $1.00 each
(hereinafter referred to as "Common Stock"), 600,000 shares of
Class B Stock of the par value of $1.00 each (hereinafter
referred to as "Class B Stock"), and 22,043,067 shares of
Cumulative Preferred Stock, of the par value of $1.00 each
(hereinafter referred to as "Cumulative Preferred Stock").
The designations, preferences, privileges and voting
powers of each class of stock of the Corporation, and the
restrictions and qualifications thereof, shall be as follows:
1. The Cumulative Preferred Stock may be issued from time
to time as follows:
(a) The Cumulative Preferred Stock may be issued from
time to time as shares of one or more series of Cumulative
Preferred Stock and the Board of Directors is expressly
authorized, prior to issuance, in the resolution or
resolutions providing for the issue of shares in each
particular series, to fix the following:
(i) the distinctive serial designation and
number of shares which shall constitute such series,
which number may be increased (except where otherwise
provided by the Board of Directors in creating such
series) or decreased (but not below the number of
shares thereof then outstanding) from time to time by
like action of the Board of Directors;
(ii) the annual dividend rate for such series,
and the date from which dividends on shares of such
series shall be cumulative;
(iii) the redemption provisions and price or
prices, if any, for such series, which may consist of
a redemption price or scale of redemption prices
applicable only to redemption for a sinking fund and
the same or a different redemption price or scale of
redemption prices applicable to any other redemption;
(iv) the amount or amounts which shall be paid
to the holders of the shares of such series in the
event of voluntary or involuntary liquidation,
dissolution or winding up of the Corporation (but not
less than $1.00 in the case of involuntary
liquidation);
(v) the obligation, if any, of the Corporation
to retire shares of such series pursuant to a sinking
fund which shall be applied to the redemption of
shares of such series;
(vi) the terms and conditions (with or without
limitations), if any, on which shares of such series
shall be convertible into, or exchangeable for, shares
of stock of any other class or classes, including the
price or prices or at the rate or rates of conversion
or exchange and the terms and conditions of adjustment
thereof, if any; and
(vii) the voting rights, if any, in addition to
those specified herein, and any other preferences,
privileges and restrictions or qualifications of such
series.
(b) All shares of Cumulative Preferred Stock,
regardless of series, shall be of equal rank with each
other and shall be identical with each other in all
respects except as provided in or permitted by paragraph
(a) of this subdivision 1 and except as provided in
paragraph (b) of subdivision 6; and the shares of the
Cumulative Preferred Stock of any one series shall be
identical with each other in all respects except as to the
dates from and after which dividends thereon shall be
cumulative.
(c) In case the stated dividends and the amounts
payable on liquidation are not paid in full, the shares of
all series of the Cumulative Preferred Stock shall share
ratably in the payment of dividends (including
accumulations, if any) in accordance with the sums
which would be payable on said shares if all dividends
were declared and paid in full, and in any distribution of
assets other than by way of dividends in accordance with
the sums which would be payable on such distributions if
all sums payable were discharged in full.
2. The holders of the Cumulative Preferred Stock of each
series shall be entitled to receive, when and as declared by
the Board of Directors, but only out of funds legally available
for the payment of dividends, cumulative cash dividends at the
annual rate for such series (as fixed by the Board of Directors
in accordance with subdivision 1 in respect of any series), and
no more, payable quarter-yearly, on the first day of January,
April, July and October in each year, to shareholders of record
on the respective dates, not exceeding forty days preceding
such dividend payment dates, fixed for the purpose by the Board
of Directors in advance of payment of each particular dividend;
provided that if dividends on any shares of the Cumulative
Preferred Stock shall be cumulative from a date less than
thirty days prior to the first quarter-yearly dividend payment
date in respect of such shares, the dividends accrued on such
shares to such date shall not be payable on such date but shall
be payable on the next following quarter-yearly dividend
payment date. The holders of shares of the Cumulative
Preferred Stock shall not be entitled to receive any dividends
thereon other than the dividends referred to in this
subdivision 2.
As provided in paragraph (c) of subdivision 1, no
dividend shall be paid upon, or declared or set apart for, any
share of Cumulative Preferred Stock of any series for any
quarter-yearly dividend period (other than the first quarter-
yearly dividend period for any shares if the dividend on such
shares for such period shall not then be payable pursuant to
the provisions of subdivision 2) unless at the same time a like
proportionate dividend for the same quarter-yearly dividend
period, ratably in proportion to the respective annual dividend
rates fixed therefor, shall be paid upon, or declared and set
apart for, all shares of Cumulative Preferred Stock of all
series then issued and outstanding and entitled to receive the
dividend.
3. So long as any shares of the Cumulative Preferred
Stock are outstanding, no dividend whatever shall be paid or
declared at any time, and no distribution made, on any junior
stock (other than in junior stock) nor shall any shares of
junior stock be purchased or otherwise acquired for value or
redeemed at any time by the Corporation or any subsidiary:
(a) unless all dividends on the Cumulative Preferred
Stock of all series for all past quarter-yearly dividend
periods (other than the first quarter-yearly dividend
period for any shares if the dividend on such shares for
such period shall not then be payable pursuant to the
provisions of subdivision 2) shall have been paid and the
full dividends thereon for the then current quarter-yearly
dividend period shall have been paid or declared and a sum
sufficient for the payment thereof set apart; and
(b) unless the Corporation shall have redeemed,
retired or purchased all shares of each series of
Cumulative Preferred Stock required to have been redeemed,
retired or purchased at such time pursuant to the sinking
fund fixed for such series by the Board of Directors in
accordance with subdivision 1,
provided, however, that the foregoing restrictions in this
subdivision 3 shall not apply to the acquisition of any junior
stock solely in exchange for, or solely out of the proceeds of
sale of, any other junior stock.
Subject to the foregoing provisions of this
subdivision 3, and to any further limitations prescribed by the
Board of Directors in accordance with subdivision 1, and not
otherwise, such dividends (payable in cash, stock or otherwise)
as may be determined by the Board of Directors may be declared
and paid on any junior stock from time to time out of any funds
of the Corporation legally available therefor, and the
Cumulative Preferred Stock shall not be entitled to participate
in any such dividends.
4. Subject to the provisions of subdivision 5, the
Corporation at its option (expressed by resolution of the Board
of Directors) or for the purpose of any sinking fund therefor
may (except as otherwise provided by the Board of Directors in
accordance with subdivision 1 in respect of any series) redeem
the outstanding shares of Cumulative Preferred Stock, or of
any one or more series thereof, at any time in whole, or from
time to time in part, upon notice duly given as hereinafter
specified, at the applicable redemption price or prices for
such shares (as fixed in accordance with subdivision 1 in
respect of any series), including, in each case, an amount
equal to all accrued and unpaid dividends thereon to the date
fixed for redemption.
Notice of every such redemption of Cumulative Preferred
Stock of any series (a) if all the shares of such series are
held of record by not more than ten holders, shall be given by
mailing such notice not less than 30 nor more than 60 days
prior to the date fixed for such redemption to each holder of
record of shares of such series so to be redeemed at his
address as the same shall appear on the books of the
Corporation, or (b) if all the shares of such series are held
of record by more than ten holders, shall be given by
publication at least once in each of two successive calendar
weeks in a newspaper printed in the English language and
customarily published on each business day and of general
circulation in the Borough of Manhattan, The City of New York,
the first publication to be not less than 30 nor more than 60
days prior to the date fixed for such redemption, and notice of
such redemption shall also be mailed not less than 30 nor more
than 60 days prior to the date fixed for such redemption, to
each holder of record of shares of such series so to be
redeemed at his address as the same shall appear on the books
of the Corporation; but, if publication is required, no failure
to mail any such notice nor any defect therein or in the
mailing thereof shall affect the validity of the proceeding for
the redemption of any shares to be redeemed.
In case of redemption of a part only of the Cumulative
Preferred Stock of any series at the time outstanding, whether
for the sinking fund therefor or otherwise, the redemption may
(subject to any provision made by the Board of Directors in
accordance with subdivision 1 in respect of any series) be
either pro rata or by lot, as determined by the Board of
Directors. Subject to the foregoing, the Board of Directors
shall have full power and authority to prescribe the manner in
which the drawings by lot or the pro rata redemption shall be
conducted and, subject to the provisions contained in the
Certificate of Incorporation or provided by the Board of
Directors in accordance with subdivision 1, the terms and
conditions upon which the Cumulative Preferred Stock shall be
redeemed from time to time.
If any such notice of redemption shall have been duly
given and if, on or before the redemption date specified
therein, all funds necessary for such redemption shall have
been set aside by the Corporation, separate and apart from its
other funds, in trust for the pro rata benefit of the holders
of the shares so called for redemption, so as to be and
continue to be available therefor, then, notwithstanding that
any certificate for shares so called for redemption shall not
have been surrendered for cancellation, all shares so called
for redemption shall no longer be deemed outstanding on and
after such redemption date, and the right to receive dividends
thereon and all other rights with respect to such shares shall
forthwith on such redemption date cease and terminate, except
only the right of the holders thereof to receive the amount
payable on redemption thereof without interest, and the right
to exercise, on or before the date fixed for redemption, all
privileges of conversion or exchange, if any, not theretofore
expired.
If any such notice of redemption shall have been duly
given or if the Corporation shall have given to the bank or
trust company hereinafter referred to irrevocable written
authorization promptly to give or complete such notice, and if
on or before the redemption date specified therein the funds
necessary for such redemption shall have been deposited by the
Corporation with a bank or trust company in good standing,
designated in such notice, organized under the laws of the
United States of America or of the State of New York, doing
business in the Borough of Manhattan, The City of New York,
having a capital, surplus, and undivided profits aggregating at
least $5,000,000 according to its last published statement of
condition, in trust for the pro rata benefit of the holders of
the shares so called for redemption, then, notwithstanding that
any certificate for shares so called for redemption shall not
have been surrendered for cancellation, from and after the time
of such deposit all shares so called for redemption shall no
longer be deemed to be outstanding and all rights with respect
to such shares shall forthwith cease and terminate, except only
the right of the holders thereof to receive from such bank or
trust company at any time after the time of such deposit the
funds so deposited, without interest, and the right to
exercise, on or before the date fixed for redemption, all
privileges of conversion or exchange, if any, not theretofore
expired. Any interest accrued on such funds shall be paid
to the Corporation from time to time.
Any funds so set aside or deposited, as the case may
be, and unclaimed at the end of six years from such redemption
date shall be released or repaid to the Corporation, after
which the holders of the shares so called for redemption shall
look only to the Corporation for payment thereof; provided that
any funds so deposited which shall not be required for
redemption because of the exercise of any privilege of
conversion or exchange subsequent to the date of deposit shall
be repaid to the Corporation forthwith.
None of the shares of Cumulative Preferred Stock of any
series redeemed or retired pursuant to the sinking fund fixed
for such series by the Board of Directors in accordance with
subdivision 1, shall be reissued and all such shares shall, in
the manner provided by law, be eliminated from the authorized
capital stock of the Corporation. The Corporation shall not be
prohibited from reissuing any shares of Cumulative Preferred
Stock redeemed or retired (other than for the sinking fund
therefor) or converted into or exchanged for stock pursuant to
the provisions fixed by the Board of Directors in accordance
with subdivision 1, and after such redemption, retirement or
conversion of the Corporation may, in the manner provided by
law, restore such shares to the status of authorized but
unissued shares of Cumulative Preferred Stock undesignated as
to series.
5. If and so long as all dividends on the Cumulative
Preferred Stock of all series for all past quarter-yearly
dividend periods (other than the first quarter-yearly dividend
period for any shares if the dividend on such shares for such
period shall not then be payable pursuant to the provisions of
subdivision 2) shall not have been paid and the full dividends
thereon for the then current quarter-yearly dividend period
shall not have been paid or declared and a sum sufficient for
the payment thereof set apart, the Corporation shall not
redeem (for sinking fund or otherwise) less than all of the
Cumulative Preferred Stock at the time outstanding, and neither
the Corporation nor any subsidiary shall purchase or otherwise
acquire for value (for sinking fund or otherwise) any of the
Cumulative Preferred Stock at the time outstanding.
6. Unless the consent of the holders of a greater number
of shares shall then be required by law, the consent of the
holders of at least two-thirds of the shares of Cumulative
Preferred Stock at the time outstanding, given in person or by
proxy, either in writing or at any special or annual meeting
called for the purpose, at which the Cumulative Preferred
Stock shall vote separately as a class, shall be necessary to
permit, effect or validate any one or more of the following:
(a) The authorization of, or any increase in the
authorized amount of, any class of stock ranking prior to
the Cumulative Preferred Stock;
(b) The amendment, alteration or repeal of any of the
provisions of the Certificate of Incorporation, or of the
By-Laws of the Corporation which would affect adversely
any right, preference, privilege or voting power of the
Cumulative Preferred Stock or of the holders thereof;
provided, however, that if any such amendment, alteration
or repeal would affect adversely any right, preference,
privilege or voting power of one or more, but not all, of
the series of Cumulative Preferred Stock at the time
outstanding, the consent of the holders of at least two-
thirds of the outstanding shares of each such series so
affected, similarly given, shall be required in lieu of
(or if such consent is required by law, in addition to)
the consent of the holders of two-thirds of the shares of
the Cumulative Preferred Stock as a class; and
(c) The voluntary liquidation, dissolution or winding
up of the Corporation, or the sale, lease or conveyance
(other than by mortgage) of all or substantially all the
property or business of the Corporation, or the
consolidation or merger of the Corporation with or into
any other corporation, except any such consolidation or
merger wherein none of the rights, preferences, privileges
or voting powers of any series of the Cumulative Preferred
Stock or the holders thereof are adversely affected.
No consent of the holders of the Cumulative Preferred
Stock or of any series thereof which would otherwise be
required to permit, effect or validate any action of the
Corporation or a subsidiary pursuant to the provisions of this
subdivision 6 or pursuant to any provision fixed by the Board
of Directors in accordance with subdivision 1 shall be required
if, prior to or concurrently with such action, provision shall
be made in accordance with the provisions of the fourth
paragraph of subdivision 4 for the redemption of all
outstanding shares of Cumulative Preferred Stock or all
outstanding shares of such series, as the case may be, and all
funds necessary for such redemption shall be deposited in trust
in accordance with the provisions of such paragraph.
7. Unless and until six quarter-yearly dividends on the
Cumulative Preferred Stock of any series shall be in default,
in whole or in part, the entire voting power, except as
otherwise provided in the Certificate of Incorporation or By-
Laws, shall be vested exclusively in the Common Stock in
accordance with the provisions of, and except as otherwise
expressly provided in, the Certificate of Incorporation. If and
whenever six full quarter-yearly dividends (whether or not
consecutive) payable on the Cumulative Preferred Stock of any
series shall be in arrears, in whole or in part, the number of
Directors then constituting the Board of Directors shall be
increased by two and the holders of the Cumulative Preferred
Stock, voting separately as a class, regardless of series,
shall be entitled to elect the two additional directors at any
annual meeting of shareholders or special meeting held in place
thereof, or at a special meeting of the holders of the
Cumulative Preferred Stock called as hereinafter provided.
Whenever all arrears in dividends on the Cumulative Preferred
Stock then outstanding shall have been paid and dividends
thereon for the current quarter-yearly dividend period shall
have been paid or declared and set apart for payment, then the
right of the holders of the Cumulative Preferred Stock to elect
such additional two Directors shall cease (but subject always
to the same provisions for the vesting of such voting rights in
the case of any similar future arrearages in dividends), and
the terms of office of all persons elected as Directors by the
holders of the Cumulative Preferred Stock shall forthwith
terminate and the number of the Board of Directors shall be
reduced accordingly. At any time after such voting power shall
have been so vested in the Cumulative Preferred Stock, the
Secretary of the Corporation may, and upon the written request
of any holder of the Cumulative Preferred Stock (addressed to
the Secretary at the principal office of the Corporation)
shall, call a special meeting of the holders of the Cumulative
Preferred Stock for the election of the two Directors to be
elected by them as herein provided, such call to be made by
notice similar to that provided in the By-Laws for a special
meeting of the shareholders or as required by law. If any such
special meeting required to be called as above provided shall
not be called by the Secretary within twenty days after receipt
of any such request, then any holder of Cumulative Preferred
Stock may call such meeting, upon the notice above provided,
and for that purpose shall have access to the stock books of
the Corporation. The Directors elected at any such special
meeting shall hold office until the next annual meeting of the
shareholders or special meeting held in place thereof. In case
any vacancy shall occur among the Directors elected by the
holders of the Cumulative Preferred Stock, a successor shall be
elected to serve until the next annual meeting of the
shareholders or special meeting held in place thereof by the
then remaining Director elected by the holders of the
Cumulative Preferred Stock or the successor of such remaining
Director.
In any case in which the holders of Cumulative
Preferred Stock or any series thereof shall be entitled to vote
pursuant to the provisions of the Certificate of Incorporation
or pursuant to law, each holder of Cumulative Preferred Stock
or of such series, as the case may be, shall be entitled to one
vote for each share thereof held.
8. In the event of any liquidation, dissolution or
winding up of the Corporation, the holders of the Cumulative
Preferred Stock of each series shall be entitled to receive out
of the assets of the Corporation, before any distribution or
payment shall be made to the holders of any junior stock, (i)
if such liquidation, dissolution or winding up shall be
involuntary, the amount fixed by the Board of Directors in
accordance with subdivision 1 but not less than $1.00, and (ii)
if such liquidation, dissolution or winding up shall be
voluntary, the amount per share fixed by the Board of Directors
in accordance with the provisions of subdivision 1 in the case
of any series of Cumulative Preferred Stock, in effect at the
time thereof, together with, in each case, all accrued and
unpaid dividends thereon to the date fixed for the payment of
such distributive amounts; and the holders of the junior stock
shall be entitled, to the exclusion of the holders of the
Cumulative Preferred Stock of any and all series, to share
ratably in all the remaining assets of the Corporation in
accordance with their respective rights. As provided in
paragraph (c) of subdivision 1, if upon any liquidation,
dissolution or winding up of the Corporation, whether voluntary
or involuntary, the assets available for distribution shall be
insufficient to pay the holders of all outstanding shares of
Cumulative Preferred Stock the full amounts to which they
respectively shall be entitled, the holders of shares of
Cumulative Preferred Stock of all series shall share ratably in
any distribution of assets in accordance with the sums which
would be payable on such distribution if all sums payable were
discharged in full. Neither the consolidation or merger of the
Corporation with or into any other corporation, nor any sale,
lease or conveyance of all or any part of the property or
business of the Corporation, shall be deemed to be a
liquidation, dissolution or winding up of the Corporation
within the meaning of this subdivision 8.
9. Except as otherwise expressly provided in the
Certificate of Incorporation and except as otherwise provided
by law, voting rights upon any and all matters shall be vested
exclusively in the holders of the Common Stock and the Class B
Stock (each share of Common Stock and of Class B Stock having
one vote).
10. No holder of Common Stock, Cumulative Preferred Stock
or Class B Stock shall be entitled as such, as a matter of
right, to subscribe for or purchase any part of any new or
additional issue of stock of any class whatsoever, or of any
obligations or other securities convertible into, or
exchangeable for, any stock of any class whatsoever, whether
now or hereafter authorized and whether issued for cash or
other consideration or by way of dividend.
11. The holders of Common Stock and of Class B Stock
shall possess equal voting rights and rights as to dividends or
distributions, and in the event of any liquidation, dissolution
or winding up of the Corporation. No dividend, distribution,
split-up, combination, reclassification, or other change in the
shares of Common Stock shall be made without the same being
made with respect to the Class B Stock.
12. For all purposes of the Certificate of Incorporation:
The term "accrued and unpaid dividends" when used
with reference to any share of any series of the Cumulative
Preferred Stock shall mean an amount computed at the annual
dividend rate for the shares of such series from the date on
which dividends on such share became cumulative to and
including the date to which such dividends are to be accrued,
less the aggregate amount of all dividends theretofore paid on
such share; but no interest shall be payable upon any
arrearages.
The term "Certificate of Incorporation" shall mean
the certificate of incorporation of the Corporation as amended
and supplemented by any certificate heretofore or hereafter
filed pursuant to law, including any certificate filed pursuant
to law with respect to, and providing for the issue of, any
series of Cumulative Preferred Stock.
The term "junior stock", when used with reference to
the Cumulative Preferred Stock, shall mean the Common Stock,
the Class B Stock and any other stock of the Corporation, now
or hereafter authorized, over which the Cumulative Preferred
Stock has preference or priority either in the payment of
dividends or in the distribution of assets upon any
liquidation, dissolution or winding up of the Corporation.
The term "sinking fund", as applied to any series of
preferred stock, shall mean any fund or requirement for the
periodic redemption, retirement or purchase of shares of such
series.
The term "stock ranking prior to the Cumulative
Preferred Stock" shall mean any stock of the Corporation, now
or hereafter authorized, which has preference over the
Cumulative Preferred Stock either in the payment of dividends
or in any liquidation, dissolution or winding up of the
Corporation.
THE $5.45 CUMULATIVE PREFERRED STOCK
13. (a) The distinctive serial designation of the
initial series of Cumulative Preferred Stock is "$5.45
Cumulative Preferred Stock" (the "First Series"); and the
aggregate number of shares which shall constitute such
series is 8,875,000.
(b) The annual dividend rate for the First Series is
$5.45 per share and the date from and after which
dividends on each share of the First Series shall be
cumulative is January 11, 1983.
(c) The redemption price for the First Series
applicable to redemption for the mandatory and optional
sinking fund established by paragraph (e) below shall be
$50 per share and for the voluntary redemptions
established by paragraph (f) below as follows for
redemptions after the dates indicated:
April 1, 1988 $52.725
April 1, 1989 $52.180
April 1, 1990 $51.635
April 1, 1991 $51.090
April 1, 1992 $50.545
April 1, 1993 and thereafter $50.000
(d) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation,
the holders of the First Series shall be entitled to
receive out of the assets of the Corporation, before any
distribution or payment shall be made to the holders
of any junior stock, the per share redemption price of $50
plus an amount equal to all accrued and unpaid dividends
thereon to the date fixed for the payment of such
distributive amount.
(e) As and for a Sinking Fund for the shares of the
First Series, so long as any shares thereof are
outstanding, the Corporation shall redeem, on January 1 in
each of the years 1993 through 2003, inclusive
(hereinafter each called a "Sinking Fund Date"),
commencing on January 1, 1993, a number of shares of the
First Series equal to, on the Sinking Fund Dates in the
years 1993 through 2002, inclusive, 8.18% of the number of
shares of the First Series outstanding on January 1, 1993,
and, on the Sinking Fund Date in 2003, all shares of the
First Series then remaining outstanding (the Corporation's
obligation to redeem such number of shares on any Sinking
Fund Date being hereinafter referred to as the "Sinking
Fund Obligation" for such date). If the Corporation shall
fail to discharge its Sinking Fund Obligation on any
Sinking Fund Date for any reason, such Sinking Fund
Obligation to the extent not discharged shall become an
additional Sinking Fund Obligation on each succeeding
Sinking Fund Date until fully discharged, provided that
all outstanding shares of the First Series shall be
redeemed not later than January 1, 2003. The obligation
of the Corporation to redeem shares for the Sinking Fund
as aforesaid may, at the election of the Corporation, be
reduced and satisfied, in whole or in part, by the number
of shares of the First Series theretofore purchased,
redeemed or otherwise acquired by the Corporation
otherwise than through the operation of the Sinking Fund
and not theretofore made the basis for the reduction of a
Sinking Fund Obligation.
(f) The Board of Directors of the Corporation at any
time and from time to time after April 1, 1988 may redeem
all, or any number less than all, of the outstanding
shares of the First Series.
(g) The First Series is not convertible into, or
exchangeable for, shares of stock of any other class.
THE SERIES A CUMULATIVE PREFERRED STOCK
14. (a) The distinctive serial designation of the second
series of Cumulative Preferred Stock is "Series A
Cumulative Preferred Stock" (hereinafter called "Series A
Preferred Stock").
(b) The number of shares constituting the Series A
Preferred Stock is 1,500,000 shares.
(c) The quarterly dividend rate for the Series A
Preferred Stock is an amount per share (rounded to the
nearest cent) equal to the greater of (i) $10.00 or (ii)
subject to the provision for adjustment hereinafter set
forth, 100 times the aggregate per share amount of all
cash dividends, and 100 times the aggregate per share
amount (payable in kind) of all noncash dividends or other
distributions other than a dividend payable in shares of
Common Stock or Class B Stock or a subdivision of the
outstanding shares of Common Stock or Class B Stock (by
reclassification or otherwise), declared on the Common
Stock or Class B Stock of the Corporation since the
immediately preceding quarterly dividend payment date, or,
with respect to the first quarterly dividend payment date,
since the first issuance of any share or fraction of a
share of Series A Preferred Stock. In the event the
Corporation shall at any time after April 16, 1987 declare
or pay any dividend on Common Stock or Class B Stock
payable in shares of Common Stock or Class B Stock, or
effect a subdivision or combination or consolidation of
the outstanding shares of Common Stock or Class B Stock
(by reclassification or otherwise than by payment of a
dividend in shares of Common Stock or Class B Stock) into
a greater or lesser number of shares of Common Stock or
Class B Stock, then in each such case the amount to which
holders of Series A Preferred Stock were entitled
immediately prior to such event under clause (ii) of the
preceding sentence shall be adjusted by multiplying such
amount by a fraction, the numerator of which is the number
of shares of Common Stock or Class B Stock outstanding
immediately after such event and the denominator of which
is the number of shares of Common Stock or Class B Stock
that were outstanding immediately prior to such event.
The Corporation shall declare a dividend or
distribution on the Series A Preferred Stock as provided
in this paragraph (c) immediately after it declares a
dividend or distribution on the Common Stock or Class B
Stock; provided that, in the event no dividend or
distribution shall have been declared on the Common Stock
or Class B Stock during the period between any quarterly
dividend payment date and the next subsequent quarterly
dividend payment date, a dividend of $10.00 per share on
the Series A Preferred Stock shall nevertheless be payable
on such subsequent quarterly dividend payment date.
Dividends shall begin to accrue and be
cumulative on outstanding Series A Preferred Stock from
the date of issue of such shares of Series A Preferred
Stock.
(d) Except as prescribed by law and in addition to
the rights provided for in Section 7 of Article FOURTH of
the Certificate of Incorporation of the Corporation and in
paragraph (i) of this Section 14, and subject to the
provision for adjustment hereinafter set forth, the
holders of the Series A Preferred Stock shall be entitled
to one vote for each share held and shall be entitled to
exercise such voting rights with the holders of Common
Stock and Class B Stock, without distinction as to class,
at any annual or special meeting of shareholders for the
election of directors and on any other matter coming
before such meeting.
(e) Any Series A Preferred Stock purchased or
otherwise acquired by the Corporation in any manner
whatsoever shall be retired and cancelled promptly after
the acquisition thereof. All such shares shall upon their
cancellation become authorized but unissued Cumulative
Preferred Stock and may be reissued as part of a new
series of Cumulative Preferred Stock to be created by
resolution or resolutions of the Board of Directors,
subject to the conditions and restrictions on issuance set
forth herein.
(f) (i) Upon any voluntary or involuntary
liquidation, dissolution or winding up of the
Corporation, no distribution shall be made to the
holders of junior stock unless, prior thereto, the
holders of Series A Preferred Stock shall have
received the greater of (i) $100.00 per share, plus
an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to
the date of such payment, or (ii) an amount per share
which shall be determined by (A) dividing (1) the
value of the assets of the Corporation available for
distribution to shareholders, less the amount to
be paid upon liquidation, dissolution, or winding up
to the holders of all other series of stock ranking
on a parity with the Series A Preferred Stock, by (2)
the sum of the number of one-hundredths shares of
Series A Preferred Stock outstanding as of the date
of such event plus the number of shares of Common
Stock and Class B Stock, as adjusted by multiplying
such number of shares of Common Stock and Class B
Stock outstanding as of the date of such event by the
Adjustment Number (as defined below), and (B)
multiplying the result obtained in clause (A) by 100,
(the "Series A Preferred Stock Liquidation
Preference"). Following the payment of the full
amount of the Series A Preferred Stock Liquidation
Preference, no additional distributions shall be made
to the holders of shares of Series A Preferred Stock.
Following the payment of the full amount of the
Series A Preferred Stock Liquidation Preference in
respect of all outstanding shares of Series A
Preferred Stock holders of Common Stock and Class B
Stock shall receive their ratable and proportionate
share of the remaining assets to be distributed, on a
per share basis.
(ii) In the event, however, that there are not
sufficient assets available to permit payment in full
of the Series A Preferred Stock Liquidation
Preference and the liquidation preferences of all
other series of stock ranking on a parity upon
liquidation, dissolution or winding up with the
Series A Preferred Stock, then such remaining assets
shall be distributed ratably to the holders of the
Series A Preferred Stock and such other series of
parity stock in proportion to the total amounts to
which the holders of all such shares are entitled
upon liquidation, dissolution or winding up.
(iii) The Adjustment Number as of the date of
this Certificate of Amendment shall be one (1). In
the event the Corporation shall at any time after
April 16, 1987 declare or pay any dividend on Common
Stock payable in shares of Common Stock or Class B
Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common
Stock or Class B Stock (by reclassification or
otherwise than by payment of a dividend in shares of
Common Stock or Class B Stock) into a greater or
lesser number of shares of Common Stock or Class B
Stock, then in each such case the Adjustment Number
in effect immediately prior to such event shall be
adjusted by multiplying such Adjustment Number by a
fraction, the numerator of which is the number of
shares of Common Stock and Class B Stock outstanding
immediately prior to such event and the denominator
of which is the number of shares of Common Stock and
Class B Stock that were outstanding immediately after
such event.
(iv) The merger or consolidation of the
Corporation with or into any other corporation or the
merger or consolidation of any other corporation with
or into the Corporation, or the sale, transfer,
exchange or conveyance by the Corporation of all or
substantially all the assets of the Corporation, as
an entirety, shall not be deemed to be a liquidation
for purposes of paragraph (f) of this Section 14.
(g) In case the Corporation shall enter into any
consolidation, merger, combination or other transaction in
which the shares of Common Stock or Class B Stock are
exchanged for or changed into other stock or securities,
cash and/or any other property, then in any such case the
Series A Preferred Stock shall at the same time be
similarly exchanged or changed in an amount per share
(subject to the provision for adjustment hereinafter set
forth) equal to 100 times the aggregate amount of stock,
securities, cash and/or any other property (payable in
kind), as the case may be, into which or for which each
share of Common Stock or Class B Stock is changed or
exchanged. In the event the Corporation shall at any time
after April 16, 1987 declare or pay any dividend on Common
Stock or Class B Stock payable in shares of Common Stock
or Class B Stock, or effect a subdivision or combination
or consolidation of the outstanding shares of Common Stock
or Class B Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock or Class B
Stock) into a greater or lesser number of shares of Common
Stock or Class B Stock, then in each such case the amount
set forth in the preceding sentence with respect to the
exchange or change of Series A Preferred Stock shall be
adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common Stock
and Class B Stock outstanding immediately after such event
and the denominator of which is the number of shares of
Common Stock and Class B Stock that were outstanding
immediately prior to such event.
(h) The Series A Preferred Stock shall not be
redeemable.
(i) Series A Preferred Stock may be issued in
fractions of a share which shall entitle the holder, in
proportion to such holder's fractional shares, to exercise
voting rights, receive dividends, participate in
liquidating distributions and to have the benefit of all
other rights of holders of Series A Preferred Stock.
(j) The Series A Preferred Stock is not convertible
into, or exchangeable for, shares of stock of any other
class.
THE $4.125 TWENTY-YEAR SINKING FUND PREFERRED STOCK
15. (a) The distinctive serial designation of the third
series of Cumulative Preferred Stock is "$4.125 Twenty-
Year Sinking Fund Preferred Stock" (hereinafter called
"Twenty-Year Preferred Stock"); and the number of shares
constituting the Twenty-Year Preferred Stock is 3,500,000
shares.
(b) The annual dividend rate for the Twenty-Year
Preferred Stock is $4.125 per share. Dividends shall begin
to accrue and be cumulative on outstanding Twenty-Year
Preferred Stock from the date of original issue of such
shares of Twenty-Year Preferred Stock.
(c) Upon any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the holders
of the Twenty-Year Preferred Stock shall be entitled to
receive out of the assets of the Corporation, before any
distribution or payment shall be made to the holders of
any junior stock, the per share liquidation price of $50
plus an amount equal to all accrued and unpaid dividends
thereon to the date fixed for the payment of such
distributive amount.
(d) The Board of Directors of the Corporation at any
time and from time to time on or after April 1,1993 may
redeem all, or any number less than all, of the
outstanding shares of the Twenty-Year Preferred Stock.
The redemption price for the Twenty-Year Preferred Stock
applicable to redemption for the voluntary redemptions
shall be as follows for redemptions on or after the dates
indicated:
April 1, 1993 $54.125 April 1, 1998 $52.0625
April 1, 1994 $53.7125 April 1, 1999 $51.65
April 1, 1995 $53.30 April 1, 2000 $51.2375
April 1, 1996 $52.8875 April 1, 2001 $50.825
April 1, 1997 $52.475 April 1, 2002 $50.4125
April 1, 2003 and thereafter $50.00
(e) As and for a sinking fund for the shares of
Twenty-Year Preferred Stock, so long as any shares thereof
are outstanding, the Corporation shall redeem, on April 1
in each of the years 1994 through 2008, inclusive
(hereinafter each called a "Sinking Fund Date"),
commencing on April 1, 1994, a number of shares of the
Twenty-Year Preferred Stock equal to, on the Sinking Fund
Dates in the years 1994 through 2008, inclusive, 6 2/3% of
the number of shares of the Twenty-Year Preferred Stock
originally issued prior to April 1, 1993, and, on the
Sinking Fund Date in 2008, all shares of the Twenty-Year
Preferred Stock remaining outstanding (the Corporation's
obligation to redeem such number of shares on any Sinking
Fund Date being referred to as the "Sinking Fund
Obligation" for such date). The Corporation shall have the
option on any Sinking Fund Date to increase any sinking
fund payment by an amount not exceeding 100% of such
sinking fund payment. If the Corporation shall fail to
discharge its Sinking Fund Obligation on any Sinking Fund
Date for any reason, such Sinking Fund Obligation to the
extent not discharged shall become an additional Sinking
Fund Obligation on each succeeding Sinking Fund Date until
fully discharged, provided that all outstanding shares of
the Twenty-Year Preferred Stock shall be redeemed not
later than April 1, 2008. The obligation of the
Corporation to redeem shares for the Sinking Fund as
aforesaid may, at the election of the Corporation, be
reduced and satisfied, in whole or in part, by the number
of shares of the Twenty-Year Preferred Stock theretofore
purchased, redeemed or otherwise acquired by the
Corporation otherwise than through the operation of the
Sinking Fund and not theretofore made the basis for the
reduction of a Sinking Fund Obligation. The redemption
price which shall be applicable for the purposes of this
paragraph (e) shall be $50 per share. No shares of
Twenty-Year Preferred Stock shall be issued after March
31, 1993.
(f) The Twenty-Year Preferred Stock is not
convertible into, or exchangeable for, shares of stock of
any other class.
THE $3.6875 TEN-YEAR SINKING FUND PREFERRED STOCK
16. (a) The distinctive serial designation of the fourth
series of Cumulative Preferred Stock is "$3.6875 Ten-Year
Sinking Fund Preferred Stock" (hereinafter called "Ten-
Year Preferred Stock"); and the number of shares
constituting the Ten-Year Preferred Stock is 2,500,000
shares.
(b) The annual dividend rate for the Ten-Year
Preferred Stock is $3.6875 per share. Dividends shall
begin to accrue and be cumulative on outstanding Ten-Year
Preferred Stock from the date of original issue of such
shares of Ten-Year Preferred Stock.
(c) Upon any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the holders
of the Ten-Year Preferred Stock shall be entitled to
receive out of the assets of the Corporation, before any
distribution or payment shall be made to the holders of
any junior stock, the per share liquidation price of $50
plus an amount equal to all accrued and unpaid dividends
thereon to the date fixed for the payment of such
distributive amount.
(d) The Ten-Year Preferred Stock is not redeemable
at the option of the Corporation, except pursuant to
paragraph (e) of this Section 16.
(e) As and for a Sinking Fund for the shares of Ten-
Year Preferred Stock, so long as any shares thereof are
outstanding, the Corporation shall redeem, on April 1 in
each of the years 1994 through 1998, inclusive
(hereinafter each called a "Sinking Fund Date"),
commencing on April 1, 1994, a number of shares of the
Ten-Year Preferred Stock equal to, on the Sinking Fund
Dates in the years 1994 through 1998, inclusive, 20% of
the number of shares of the Ten-Year Preferred Stock
originally issued prior to April 1, 1994 and, on the
Sinking Fund Date in 1998, all shares of the Ten-Year
Preferred Stock remaining outstanding (the Corporation's
obligation to redeem such number of shares on any Sinking
Fund Date being referred to as the "Sinking Fund
Obligation" for such date). The Corporation shall have the
option on any Sinking Fund Date to increase any sinking
fund payment by an amount not exceeding 100% of such
sinking fund payment. If the Corporation shall fail to
discharge its Sinking Fund Obligation on any Sinking Fund
Date for any reason, such Sinking Fund Obligation to the
extent not discharged shall become an additional Sinking
Fund Obligation on each succeeding Sinking Fund Date until
fully discharged, provided that all outstanding shares of
the Ten-Year Preferred Stock shall be redeemed not later
than April 1, 1998. The obligation of the Corporation to
redeem shares for the Sinking Fund as aforesaid may, at
the election of the Corporation, be reduced and satisfied,
in whole or in part, by the number of shares of the Ten-
Year Preferred Stock theretofore purchased, redeemed or
otherwise acquired by the Corporation otherwise than
through the operation of the Sinking Fund and not
theretofore made the basis for the reduction of a Sinking
Fund Obligation. The redemption price which shall be
applicable for the purposes of this paragraph (e) shall be
$50 per share. No shares of Ten-Year Preferred Stock
shall be issued after March 31, 1994.
(f) The Ten-Year Preferred Stock is not convertible
into, or exchangeable for, shares stock of any other
class.
THE SERIES B CONVERTIBLE PREFERRED STOCK
17. (a) The distinctive serial designation of the fifth
series of Cumulative Preferred Stock is "Series B
Convertible Preferred Stock" (hereinafter called "Series B
Preferred Stock"); and the number of shares constituting
the Series B Preferred Stock is 10,032,000 shares. Each
share of Series B Preferred Stock shall have a stated
value of $78.25 per share.
(b) Shares of Series B Preferred Stock shall be
issued only to the Trustee of the Employee Stock Ownership
Plan of the Corporation, as amended from time to time, or
any successor to such plan (the "Plan"). All references to
the holder of Series B Preferred Stock shall mean the
Trustee or any company with which or into which the
Trustee may merge or any successor trustee under the trust
agreement with respect to the Plan. In the event of any
transfer of record ownership of Series B Preferred Stock
to any person other than any successor trustee under the
Plan, the shares of Series B Preferred Stock so
transferred, upon such transfer and without any further
action by the Corporation or the holder thereof, shall be
automatically converted into shares of Common Stock on the
terms provided for the conversion of shares of Series B
Preferred Stock into shares of Common Stock pursuant to
subsection (f) of this subdivision 17 and no such
transferee shall have any of the voting powers,
preferences and relative, participating, optional or
special rights ascribed to the Series B Preferred Stock
hereunder but, rather, only the powers and rights
pertaining to the Common Stock into which such Series B
Preferred Stock shall be so converted. In the event of
such a conversion, the transferee of the Series B
Preferred Stock shall be treated for all purposes as the
record holder of the Common Stock into which such Series B
Preferred Stock has been automatically converted as of the
date of such transfer. Certificates representing Series B
Preferred Stock shall bear a legend to reflect the
foregoing provisions. Notwithstanding the foregoing
provisions of this subsection, shares of Series B
Preferred Stock (i) may be converted into shares of Common
Stock as provided herein and the shares of Common Stock
issued upon such conversion may be transferred by the
holder thereof as permitted by law and (ii) shall be
redeemable by the Corporation upon the terms and
conditions provided by subsections (g), (h) and (i) of
this subdivision 17.
(c) Subject to the provisions for adjustment
hereinafter set forth, the annual dividend rate for the
Series B Preferred Stock is $6.25 per share. Dividends on
the Series B Preferred Stock shall begin to accrue and be
cumulative on outstanding Series B Preferred Stock from
the date of original issuance of such shares of Series B
Preferred Stock. Series B Preferred Dividends shall
accrue on a daily basis whether or not the Corporation
shall have earnings or surplus at the time.
(d) Except as prescribed by law and in addition to
the rights provided for in subdivision 7 of Article FOURTH
of the Certificate of lncorporation, the holder of the
Series B Preferred Stock shall be entitled to one vote for
each share held and shall be entitled to exercise such
voting rights with the holders of Common Stock and Class B
Stock, without distinction as to class, at any annual or
special meeting of shareholders for the election of
directors and on any other matter coming before such
meeting.
(e) Upon any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the holder
of Series B Preferred Stock shall be entitled to receive
out of assets of the Corporation, before any distribution
shall be made to the holders of any junior stock the per
share liquidation price of $78.25 plus an amount equal to
all accrued and unpaid dividends thereon to the date fixed
for payments of such distribution amount. Neither the
merger or consolidation of the Corporation with or into
any other corporation, nor the merger or consolidation of
any other corporation with or into the Corporation, nor
the sale, lease, exchange or other transfer of all or any
portion of the assets of the Corporation, shall be deemed
to be a dissolution, liquidation or winding up of the
affairs of the Corporation for purposes of this subsection
(e), but the holder of Series B Preerred Stock shall
nevertheless be entitled in the event of any such merger
or consolidation to the rights provided by subsection (h)
hereof.
(f) (i) A holder of shares of Series B Preferred
Stock shall be entitled, at any time prior to the
close of business on the date fixed for redemption of
such shares pursuant to subsections (g), (h) and (i)
of this subdivision 17, to cause any or all of such
shares to be converted into shares of Common Stock,
initially at a conversion price equal to $78.25 per
share of Common Stock, with each share of Series B
Preferred Stock being valued at $78.25 for such
purpose, which price shall be adjusted as hereinafter
provided (and, as so adjusted, is hereinafter
sometimes referred to as the "Conversion Price").
The conversion rate initially shall be equivalent to
one (1) share of Common Stock for each share of
Series B Preferred Stock so converted, and shall be
subject to adjustment as the Conversion Price is
adjusted as hereinafter provided in subsection (i) of
this subdivision 17.
(ii) Any holder of shares of Series B Preferred
Stock desiring to convert such shares into shares of
Common Stock shall surrender the certificate or
certificates representing the shares of Series B
Preferred Stock being converted, duly assigned or
endorsed for transfer to the Corporation (or
accompanied by duly executed stock powers relating
thereto), and accompanied by written notice of
conversion, at the principal executive office of the
Corporation or the offices of the transfer agent for
the Series B Preferred Stock or such office or
offices in the continental United States of an agent
for conversion as may from time to time be designated
by notice to the holder of the Series B Preferred
Stock by the Corporation or the transfer agent for
the Series B Preferred Stock. Such notice of
conversion shall specify (i) the number of shares of
Series B Preferred Stock to be converted and the name
or names in which such holder wishes the certificate
or certificates for Common Stock and for any shares
of Series B Preferred Stock not to be so converted to
be issued and (ii) the address to which such holder
wishes delivery to be made of such new certificates
to be issued upon such conversion.
(iii) Upon surrender of a certificate
representing a share or shares of Series B Preferred
Stock for conversion, the Corporation shall issue and
send by hand delivery or, at its option, by first
class mail (postage prepaid) to the holder thereof or
to such holder's designee, at the address designated
by such holder, a certificate or certificates for the
number of shares of Common Stock to which such holder
shall be entitled upon conversion. In the event that
there shall have been surrendered a certificate or
certificates representing Series B Preferred Stock,
only part of which are to be converted, the
Corporation shall issue and send to such holder or
such holder's designee, in the manner set forth in
the preceding sentence, a new certificate or
certificates representing the number of shares of
Series B Preferred Stock which shall not have been
converted.
(iv) The issuance by the Corporation of shares
of Common Stock upon a conversion of shares of Series
B Preferred Stock into shares of Common Stock made at
the option of the holder thereof shall be effective
as of the earlier of (1) the delivery to such holder
or such holder's designee of the certificates
representing the shares of Common Stock issued upon
conversion thereof or (2) the commencement of
business on the second Business Day after the proper
surrender of the certificate or certificates for the
Series B Preferred Stock to be converted, as provided
in subsection (f)(iii) above. On and after the
effective date of conversion, the person or persons
entitled to receive the Common Stock issuable upon
such conversion shall be treated for all purposes as
the record holder or holders of such shares of Common
Stock, but no allowance or adjustment shall be made
in respect of dividends payable to holders of record
of Common Stock in respect of any period prior to
such effective date. The Corporation shall not be
obligated to pay any dividends which shall have been
declared prior to the effective date of conversion
and shall be payable to holders of shares of Series B
Preferred Stock subsequent to the effective date of
conversion of such shares.
(v) The Corporation shall not be obligated to
deliver to holders of Series B Preferred Stock any
fractional share of Common Stock issuable upon any
conversion of such Series B Preferred Stock, but in
lieu thereof may make a cash payment in respect
thereof in any manner permitted by law.
(vi) The Corporation shall at all times reserve
and keep available out of its authorized and unissued
Common Stock, solely for issuance upon the conversion
of Series B Preferred Stock as herein provided such
number of shares of Common Stock as shall from time
to time be issuable upon the conversion of all the
Series B Preferred Stock then outstanding. Nothing
contained herein shall preclude the Corporation from
issuing shares of Common Stock held in its treasury
upon the conversion of shares of Series B Preferred
Stock into Common Stock pursuant to the terms hereof.
(g) (i) The Board of Directors of the Corporation
at any time and from time to time on or after July
10, 1994 may redeem all, or any number less than all,
of the outstanding shares of the Series B Preferred
Stock. The redemption price per share for the Series
B Preferred Stock applicable for redemptions on or
after the dates indicated below shall be as follows,
plus accrued and unpaid dividends to the date fixed
for redemption:
July 10, 1994 81.375
July 10, 1995 80.750
July 10, 1996 80.125
July 10, 1997 79.500
July 10, 1998 78.875
July 10, 1999 and thereafter 78.250
Payment of the redemption price shall be made by the
Corporation in cash or shares of Common Stock, or a
combination thereof, as permitted by subsection (v)
of subsection (g) of this subdivision 17.
(ii) In the event of a change in any statute,
rule or regulation of the United States of America or
any administrative or judicial interpretation thereof
which (1) has the effect of limiting or making
unavailable to the Corporation all or any of the tax
deductions for amounts paid (including dividends) on
the Series B Preferred Stock when such amounts are
used as provided under Section 404(k)(2) of the
Internal Revenue Code of 1986, as amended, (other
than for purposes of determining alternative minimum
tax) and in effect on the date shares of Series B
Preferred Stock are initially issued, or (2) relates
to any aspect or qualification of the Plan which
increases by 20% or more the Corporation's cost of
maintaining the Plan, the Corporation may, in its
sole discretion and notwithstanding anything to the
contrary in this subsection (g), elect to redeem any
or all of such Series B Preferred Stock at a
redemption price per share equal to the higher of (1)
$78.25 and (2) the Fair Market Value (as defined in
subparagraph (vii) of subsection (i) hereof) of the
shares of Common Stock which would be issuable upon
the conversion of the shares of Series B Preferred
Stock being redeemed, plus in each case, accrued and
unpaid dividends to the date fixed for redemption.
The Corporation shall have the right to elect to
redeem shares of Series B Preferred Stock pursuant to
this subparagraph (ii) at any time prior to the last
day of the sixth month following the latest of: (1)
the date of the enactment of any such statute, rule,
regulation or judicial or administrative
interpretation, (2) the effective date of any such
statute, rule, regulation or judicial or
administrative interpretation, or (3) in the case of
any judicial or administrative proceeding in which
the Corporation contests in good faith the
applicability of any such statute, rule, regulation
or interpretation to the Corporation, the date of the
final determination of applicability.
(iii) In the event that shares of Series B
Preferred Stock are held by the trustee under an
employee benefit plan intended to qualify as an
employee stock ownership plan within the meaning of
Section 4975 of the Internal Revenue Code of 1986, as
amended, and such plan does not so qualify, the
Corporation may, in its sole discretion and
notwithstanding anything to the contrary in
subsection (g), elect to redeem any or all of such
shares of Series B Preferred Stock at a redemption
price per share equal to the higher of (1) $78.25 and
(2) the Fair Market Value (as defined in subparagraph
(vii) of subsection (i) hereof) of the shares of
Common Stock which would be issuable upon the
conversion of the shares of Series B Preferred Stock
being redeemed, plus in each case, accrued and unpaid
dividends to the date fixed for redemption.
(v) The Corporation may make payment of the
redemption price upon any redemption hereunder
required upon redemption of Series B Preferred Stock
in cash or in a combination of one share of Common
Stock for each share of Series B Preferred Stock
redeemed and cash, any such shares of Common Stock to
be valued for such purposes at their Fair Market
Value (as defined in subparagraph (vii) of subsection
(i) hereof).
(vi) Notwithstanding anything to the contrary
in this subsection (g), at any time and from time to
time upon notice to the Corporation given not less
than five (5) Business Days prior to the date fixed
by the holder in such notice for such redemption,
upon certification by such holder to the Corporation
that such redemption is necessary for such holder to
provide for distributions required to be made to
participants under, or to satisfy an investment
election provided to participants in accordance with,
the Plan, shares of Series B Preferred Stock shall be
redeemed by the Corporation at a redemption price per
share equal to the higher of (1) $78.25 and (2) the
Fair Market Value (as defined in subparagraph (viii)
of subsection (1) hereof) of the shares of Common
Stock which would be issuable upon conversion of the
shares of Series B Preferred Stock being redeemed,
plus in each case, accrued and unpaid dividends to
the date fixed for redemption.
(vii) In the event that the Plan is terminated
in accordance with its terms, and notwithstanding
anything to the contrary in this subsection (g), any
or all shares of Series B Preferred Stock may be
redeemed by the Corporation, as soon thereafter as
practicable, at a redemption price equal to the
greater of: (1) the Fair Market Value (as defined in
subparagraph (vii) of subsection (i) hereof) of the
shares of Common Stock which would be issuable upon
conversion of the shares of Series B Preferred Stock
being redeemed or (2) the following redemption prices
per share, plus in each case, accrued and unpaid
dividends to the date fixed for redemption:
During the Twelve-Month
Period Beginning July 10 Price Per Share
1989 $84.500
1990 83.875
1991 83.250
1992 82.625
1993 82.000
1994 81.375
1995 80.750
1996 80.125
1997 79.500
1998 78.875
1999 and thereafter 78.250
(h) (i) In the event the Corporation shall enter
into any agreement providing for any consolidation or
merger or similar business combination described in
subparagraph (iii) of this subsection (h), then the
Corporation shall as soon as practicable thereafter
(and in any event at least ten (10) Business Days
before consummation of such transaction) give notice
of such agreement and the material terms thereof to
each holder of shares of Series B Preferred Stock and
each such holder shall have the right to elect, by
written notice to the Corporation, to receive, upon
consummation of such transaction (if and when such
transaction is consummated), from the Corporation or
the successor of the Corporation, in redemption and
retirement of such Series B Preferred Stock, a cash
payment per share equal to the following amount per
share, plus accrued and unpaid dividends to the date
fixed for redemption:
During the Twelve-Month
Period Beginning July 10 Price Per Share
1989 $84.500
1990 83.875
1991 83.250
1992 82.625
1993 82.000
1994 81.375
1995 80.750
1996 80.125
1997 79.500
1998 78.875
1999 and thereafter 78.250
No such notice of redemption shall be effective
unless given to the Corporation prior to the close of
business on the second Business Day prior to
consummation of such transaction, unless the
Corporation or the successor of the Corporation shall
waive such prior notice, but any notice of redemption
so given prior to such time may be withdrawn by
notice of withdrawal given to the Corporation prior
to the close of business on the second Business Day
prior to consummation of such transaction.
(ii) In the event that the Corporation shall
consummate any consolidation or merger or similar
business combination, pursuant to which the
outstanding shares of Common Stock are by operation
of law exchanged solely for or changed, reclassified
or converted solely into stock of any successor or
resulting corporation (including the Corporation)
that constitutes "qualifying employer securities"
with respect to a holder of Series B Preferred Stock
within the meaning of Section 409(1) of the Internal
Revenue Code of 1986, as amended, and Section
407(d)(5) of the Employee Retirement Income Security
Act of 1974, as amended, or any successor provisions
of law, and, if applicable, for a cash payment in
lieu of fractional shares, if any, the shares of
Series B Preferred Stock of such holder shall, in
connection with such consolidation, merger or similar
business combination, be assumed by and shall become
preferred stock of such successor or resulting
corporation, having in respect of such corporation,
insofar as possible, the same powers, preferences and
relative, participating, optional or other special
rights (including the redemption rights provided by
subsections (f), (g) and (h) hereof), and the
qualifications, limitations or restrictions thereon,
that the Series B Preferred Stock had immediately
prior to such transaction, except that after such
transaction each share of Series B Preferred Stock
shall be convertible, otherwise on the terms and
conditions provided by subsection (f) hereof, into
the number and kind of qualifying employer securities
so receivable by a holder of the number of shares of
Common Stock into which such Series B Preferred Stock
could have been converted immediately prior to such
transaction; provided, however, that, at the election
of the Trustee in lieu of the Series B Preferred
Stock becoming preferred stock of such successor or
resulting corporation, if by virtue of the structure
of such transaction, a holder of Common Stock is
required to make an election with respect to the
nature and kind of consideration to be received in
such transaction, which election cannot practicably
be made by the holder of the Series B Preferred
Stock, then the shares of Series B Preferred Stock
shall, by virtue of such transaction and on the same
terms as apply to the holders of Common Stock, be
converted into or exchanged for the aggregate amount
of stock, securities, cash or other property (payable
in kind) receivable by a holder of the number of
shares of Common Stock into which such Series B
Preferred Stock could have been converted immediately
prior to such transaction if such holder of Common
Stock failed to exercise any rights of election to
receive any kind or amount of stock, securities, cash
or other property (other than such qualifying
employer securities and a cash payment, if
applicable, in lieu of fractional shares) receivable
upon such transaction (provided that, if the kind or
amount of qualifying employer securities receivable
upon such transaction is not the same for each non-
electing share, then the kind and amount so
receivable upon such transaction for each share of
Series B Preferred Stock shall be the kind and amount
so receivable per share by the plurality of the non-
electing shares). The rights of the Series B
Preferred Stock as preferred stock of such successor
or resulting corporation shall successively be
subject to adjustments pursuant to subsection (i)
hereof after any such transaction as nearly
equivalent as practicable to the adjustment provided
for by such section prior to such transaction. The
Corporation shall not consummate any such merger,
consolidation or similar transaction unless all then
outstanding Series B Preferred Stock shall be assumed
and authorized by the successor or resulting
corporation as aforesaid.
(iii) In the event that the Corporation shall
consummate any consolidation or merger or similar
business combination, pursuant to which the
outstanding shares of Common Stock are by operation
of law exchanged for or changed, reclassified or
converted into other stock or securities or cash or
any other property, or any combination thereof, other
than any such consideration which is constituted
solely of qualifying employer securities (as referred
to in subparagraph (ii) of this subsection (h)) and
cash payments, if applicable, in lieu of fractional
shares, outstanding shares of Series B Preferred
Stock shall, without any action on the part of the
Corporation or any holder thereof (but subject to
subparagraph (i) of this subsection (h)) be
automatically converted by virtue of such merger,
consolidation or similar transaction into the number
of shares of Common Stock into which such Series B
Preferred Stock could have been converted immediately
prior to such consummation so that each share of
Series B Preferred Stock shall, by virtue of such
transaction and on the same terms as apply to the
holders of Common Stock, be converted into or
exchanged for the aggregate amount of stock,
securities, cash or other property (payable in like
kind) receivable by a holder of the number of shares
of Common Stock into which such Series B Preferred
Stock could have been converted immediately prior to
such transaction; provided, however, that if by
virtue of the structure of such transaction, a holder
of Common Stock is required to make an election with
respect to the nature and kind of consideration to be
received in such transaction, which election cannot
practicably be made by the holder of the Series B
Preferred Stock, then the Series B Preferred Stock
shall, by virtue of such transaction and on the same
terms as apply to the holders of Common Stock, be
converted into or exchanged for the aggregate amount
of stock, securities, cash or other property (payable
in kind) receivable by a holder of the number of
shares of Common Stock into which such shares of
Series B Preferred Stock could have been converted
immediately prior to such transaction if such holder
of Common Stock failed to exercise any rights of
election as to the kind or amount of stock,
securities, cash or other property receivable upon
such transaction (provided that, if the kind or
amount of stock, securities, cash or other property
receivable upon such transaction is not the same for
each non-electing share, then the kind and amount of
stock, securities, cash or other property receivable
upon such transaction for each non-electing share of
Series B Preferred Stock shall be the kind and amount
so receivable per share by a plurality of the non-
electing shares).
(i) (i) In the event the Corporation shall, at any
time or from time to time while any shares of Series
B Preferred Stock are outstanding, (i) pay a dividend
or make a distribution in respect of the Common Stock
in shares of Common Stock, (ii) subdivide the
outstanding shares of Common Stock, or (iii) combine
the outstanding shares of Common Stock into a smaller
number of shares, in each case whether by
reclassification of shares, recapitalization of the
Corporation (including a recapitalization effected by
a merger or consolidation to which subsection (h)
hereof does not apply) or otherwise, subject to
subparagraphs (v) and (vi) of this subsection (i),
the Conversion Price in effect immediately prior to
such action shall be adjusted by multiplying such
Conversion Price by a fraction, the numerator of
which is the number of shares of Common Stock
outstanding immediately before such event, and the
denominator of which is the number of shares of
Common Stock outstanding immediately after such
event. An adjustment made pursuant to this
subparagraph shall be given effect, upon payment of
such a dividend or distribution, as of the record
date for the determination of shareholders entitled
to receive such dividend or distribution (on a
retroactive basis) and in the case of a subdivision
or combination shall become effective immediately as
of the effective date thereof.
(ii) In the event that the Corporation shall,
at any time or from time to time while any of the
shares of Series B Preferred Stock are outstanding,
issue to holders of shares of Common Stock as a
dividend or distribution, including by way of a
reclassification of shares or a recapitalization of
the Corporation, any right or warrant to purchase
shares of Common Stock (but not including as such a
right or warrant any security convertible into or
exchangeable for shares of Common Stock or any right
or warrant, if any are issued to the holder of shares
of Series B Preferred Stock as though converted into
such Common Stock) at a purchase price per share less
than the Fair Market Value (as defined in
subparagraph (vii) of subsection (i) hereof) of a
share of Common Stock on the date of issuance of such
right or warrant, then, subject to the provisions of
subparagraphs (v) and (vi) of this subsection (i),
the Conversion Price shall be adjusted by multiplying
such Conversion Price by a fraction, the numerator of
which shall be the number of shares of Common Stock
outstanding immediately before such issuance of
rights or warrants plus the number of shares of
Common Stock which could be purchased at the Fair
Market Value (as defined in subparagraph (vii) of
subsection (i) hereof) of a share of Common Stock at
the time of such issuance for the maximum aggregate
consideration payable upon exercise in full of all
such rights or warrants, and the denominator of which
shall be the number of shares of Common Stock
outstanding immediately before such issuance of
rights or warrants plus the maximum number of shares
of Common Stock that could be acquired upon exercise
in full of all such rights and warrants.
(iii) In the event the Corporation shall, at
any time or from time to time while any shares of
Series B Preferred Stock are outstanding, issue, sell
or exchange shares of Common Stock (other than
pursuant to any right or warrant to purchase or
acquire shares of Common Stock (including as such a
right or warrant any security convertible into or
exchangeable for shares of Common Stock) and other
than pursuant to any employee or director incentive
or benefit plan or arrangement, including any
employment, severance or consulting agreement, of the
Corporation or any subsidiary of the Corporation
heretofore or hereafter adopted) for a consideration
having a Fair Market Value (as defined in
subparagraph (vii) of subsection (i) hereof), on the
date of such issuance, sale or exchange, less than
the Fair Market Value (as defined in subparagraph
(vii) of subsection (i) hereof) of such shares of
Common Stock on the date of issuance, sale or
exchange, then, subject to the provisions of
subparagraphs (v) and (vi) of this subsection (i),
the Conversion Price shall be adjusted by multiplying
such Conversion Price by the fraction the numerator
of which shall be the sum of (1) the Fair Market
Value (as defined in subparagraph (vii) of subsection
(i) hereof) of all the shares of Common Stock
outstanding on the day immediately preceding the
first public announcement of such issuance, sale or
exchange plus (2) the Fair Market Value (as defined
in subparagraph (vii) of subsection (i) hereof) of
the consideration received by the Corporation in
respect of such issuance, sale or exchange of shares
of Common Stock, and the denominator of which shall
be the product of (a) the Fair Market Value (as
defined in subparagraph (vii) of subsection (i)
hereof) of a share of Common Stock on the day
immediately preceding the first public announcement
of such issuance, sale or exchange multiplied by (b)
the sum of the number of shares of Common Stock
outstanding on such day plus the number of shares of
Common Stock so issued, sold or exchanged by the
Corporation. In the event the Corporation shall, at
any time or from time to time while any shares of
Series B Preferred Stock are outstanding, issue, sell
or exchange any right or warrant to purchase or
acquire shares of Common Stock (including as such a
right or warrant any security convertible into or
exchangeable for shares of Common Stock), other than
any such issuance to holders of shares of Common
Stock as a dividend or distribution (including by way
of a reclassification of shares or a recapitalization
of the Corporation) and other than pursuant to any
employee or director incentive or benefit plan or
arrangement (including any employment, severance or
consulting agreement) of the Corporation or any
subsidiary of the Corporation heretofore or hereafter
adopted, for a consideration having a Fair Market
Value (as defined in subparagraph (vii) of subsection
(i) hereof), on the date of such issuance, sale or
exchange, less than the Non-Dilutive Amount (as
hereinafter defined), then, subject to the provisions
of subparagraphs (v) and (vi) of this subsection (i),
the Conversion Price shall be adjusted by multiplying
such Conversion Price by a fraction the numerator of
which shall be the sum of (I) the Fair Market Value
(as defined in subparagraph (vii) of subsection (i)
hereof) of all the shares of Common Stock outstanding
on the day immediately preceding the first public
announcement of such issuance, sale or exchange plus
(II) the Fair Market Value (as defined in
subparagraph (vii) of subsection (i) hereof) of the
consideration received by the Corporation in respect
of such issuance, sale or exchange of such right or
warrant plus (Ill) the Fair Market Value (as defined
in subparagraph (vii) of subsection (i) hereof) at
the time of such issuance of the consideration which
the Corporation would receive upon exercise in full
of all such rights or warrants, and the denominator
of which shall be the product of (i) the Fair Market
Value (as defined in subparagraph (vii) of subsection
(i) hereof) of a share of Common Stock on the day
immediately preceding the first public announcement
of such issuance, sale or exchange multiplied by (ii)
the sum of the number of shares of Common Stock
outstanding on such day plus the maximum number of
shares of Common Stock which could be acquired
pursuant to such right or warrant at the time of the
issuance, sale or exchange of such right or warrant
(assuming shares of Common Stock could be acquired
pursuant to such right or warrant at such time).
(iv) (A) In the event the Corporation shall,
at any time or from time to time while any
shares of Series B Preferred Stock are
outstanding, make an Extraordinary Distribution
(as hereinafter defined) in respect of the
Common Stock, whether by dividend, distribution,
reclassification of shares or recapitalization
of the Corporation (including a recapitalization
or reclassification effected by a merger or
consolidation to which subsection (h) hereof
does not apply), the Conversion Price in effect
immediately prior to such Extraordinary
Distribution shall, subject to subparagraphs (v)
and (vi) of this subsection (i), be adjusted by
multiplying such Conversion Price by a fraction
the numerator of which is the difference between
(1) the product of (x) the number of shares of
Common Stock outstanding immediately before such
Extraordinary Distribution multiplied by (y) the
Fair Market Value (as defined in subparagraph
(vii) of subsection (i) hereof) of a share of
Common Stock on the day before the ex-dividend
date with respect to an Extraordinary
Distribution which is paid in cash and on the
distribution date with respect to an
Extraordinary Distribution which is paid other
than in cash, and (2) the Fair Market Value of
the Extraordinary Distribution (as defined in
subparagraph (vii) of subsection (i) hereof)
minus the aggregate amount of regularly
scheduled quarterly dividends declared by the
Board of Directors of the Corporation and paid
by the Corporation in the twelve months
immediately preceding such Extraordinary
Distribution, and the denominator of which shall
be the product of (a) the number of shares of
Common Stock outstanding immediately before such
Extraordinary Dividend multiplied by (b) the
Fair Market Value (as defined in subparagraph
(vii) of subsection (i) hereof) a share of
Common Stock on the day before the ex-dividend
date with respect to an Extraordinary
Distribution which is paid in cash and on the
distribution date with respect to an
Extraordinary Distribution which is paid other
than in cash. The Corporation shall send each
holder of Series B Preferred Stock notice of its
intent to make any such dividend or distribution
in each case at the same time as, or as soon as
practicable after, such offer is first
communicated to holders of Common Stock. Such
notice shall indicate the intended record date
and the amount and nature of such dividend or
distribution, as well as the Conversion Price
and the number of shares of Common Stock into
which a share of Series B Preferred Stock may be
converted at such time.
(B) In the event the Corporation shall, at
any time or from time to time while any shares
of Series B Preferred Stock are outstanding,
effect a Pro Rata Repurchase (as hereinafter
defined) of Common Stock, the Conversion Price
in effect immediately prior to such Pro Rata
Repurchase shall, subject to subparagraphs (v)
and (vi) of this subsection (i), be adjusted by
multiplying such Conversion Price by a fraction,
the numerator of which is the difference between
(1) the product of (x) the number of shares of
Common Stock outstanding immediately before such
Pro Rata Repurchase multiplied by (y) the Fair
Market Value (as defined in subparagraph (vii)
of subsection (i) hereof) of a share of Common
Stock on the applicable expiration date
(including all extensions thereof) of any tender
offer which is a Pro Rata Repurchase, or on the
date of purchase with respect to any Pro Rata
Repurchase which is not a tender offer, as the
case may be, and (2) the aggregate purchase
price of the Pro Rata Repurchase, and the
denominator of which shall be the product of (a)
the number of shares of Common Stock outstanding
immediately before such Pro Rata Repurchase
minus the number of shares of Common Stock
repurchased by the Corporation multiplied by (b)
the Fair Market Value (as defined in
subparagraph (vii) of subsection (i) hereof) of
a share of Common Stock on the applicable
expiration date (including all extensions
thereof) of any tender offer which is a Pro Rata
Repurchase or on the date of purchase with
respect to any Pro Rata Repurchase which is not
a tender offer. The Corporation shall send each
holder of Series B Preferred Stock notice of any
offer by the Corporation to make a Pro Rata
Repurchase at the same time as, or as soon as
practicable after, such offer is first
communicated to holders of Common Stock. Such
notice shall indicate the number of shares
subject to such offer for a Pro Rata Repurchase
and the purchase price payable by the
Corporation pursuant to such offer, as well as
the Conversion Price and the number of Shares of
Common Stock into which a share of Series B
Preferred Stock may be converted at such time.
(v) Notwithstanding any other provisions of
this subsection (i), the Corporation shall not be
required to make any adjustment to the Conversion
Price unless such adjustment would require an
increase or decrease of at least one percent (1%) in
the Conversion Price. Any lesser adjustment shall be
carried forward and shall be made no later than the
time of, and together with, the next subsequent
adjustment which, together with any adjustment or
adjustments so carried forward, shall amount to an
increase or decrease of at least one percent (1%) in
the Conversion Price.
(vi) If the Corporation shall make any dividend
or distribution on the Common Stock or issue any
Common Stock, other capital stock or other security
of the Corporation or any rights or warrants to
purchase or acquire any such security, which
transaction does not result in an adjustment to the
Conversion Price pursuant to the foregoing provisions
of this subsection (i), the Board of Directors of the
Corporation shall consider whether such action is of
such a nature that an adjustment to the Conversion
Price should equitably be made in respect of such
transaction. If in such case the Board of Directors
of the Corporation determines that an adjustment to
the Conversion Price should be made, an adjustment
shall be made effective as of such date, as
determined by the Board of Directors of the
Corporation, which adjustment shall in no event
adversely effect the powers, preferences and special
rights of the Series B Preferred Stock as set forth
herein. The determination of the Board of Directors
of the Corporation as to whether an adjustment to the
Conversion Price should be made pursuant to the
foregoing provisions of this subparagraph (vi), and,
if so, as to what adjustment should be made and when,
shall be final and binding on the Corporation and all
shareholders of the Corporation. The Corporation
shall be entitled to make such additional adjustments
in the Conversion Price, in addition to those
required by the foregoing provisions of this
subsection (i), as shall be necessary in order that
any dividend or distribution in shares of capital
stock of the Corporation, subdivision,
reclassification or combination of shares of stock of
the Corporation or any recapitalization of the
Corporation shall not be taxable to the holders of
the Common Stock.
(vii) For purposes of this subdivision 17, the
following definitions shall apply:
"Adjustment Period" shall mean the period of
five (5) consecutive trading days ending on the day
immediately preceding the date on which the Fair
Market Value or Current Market Price of a Security is
to be determined.
"Business Day" shall mean each day that is not a
Saturday, Sunday or a day on which state or federally
chartered banking institutions in New York, New York
are not required to be open.
"Current Market Price" of publicly traded shares
of Common Stock or any other class of capital stock
or other security of the Corporation or any other
issuer for any day shall mean (i) for purposes of
subsections (f) and (g) hereof, the mean between the
highest and lowest reported sales price on such day
and (ii) for all other purposes hereof, the last
reported sales price, regular way, or, in the event
that no sale takes place on such day, the average of
the reported closing bid and asked prices, regular
way, in either case as reported on the New York Stock
Exchange Composite Tape or, if such security is not
listed or admitted to trading on the New York Stock
Exchange, on the principal national securities
exchange on which such security is listed or admitted
to trading or, if not listed or admitted to trading
on any national securities exchange, on the NASDAQ
National Market System or, if such security is not
quoted on such National Market System, the average of
the closing bid and asked prices on each such day in
the over-the-counter market as reported by NASDAQ or,
if bid and asked prices for such security on each
such day shall not have been reported through NASDAQ,
the average of the bid and asked prices for such day
as furnished by any New York Stock Exchange member
firm regularly making a market in such security
selected for such purpose by the Board of Directors
of the Corporation or a committee thereof, in each
case, on each trading day during the Adjustment
Period.
"Extraordinary Distribution" shall mean any
dividend or other distribution to holders of Common
Stock (effected while any shares of Series B
Preferred Stock are outstanding) (i) of cash, where
the aggregate amount of such cash dividend or
distribution together with the amount of all cash
dividends and distributions made during the preceding
period of 12 months, when combined with the aggregate
amount of all Pro Rata Repurchases (for this purpose,
including only that portion of the aggregate purchase
price of such Pro Rata Repurchase which is in excess
of the Fair Market Value of the Common Stock
repurchased as determined on the applicable
expiration date (including all extensions thereof) of
any tender offer or exchange offer which is a Pro
Rata Repurchase, or the date of purchase with respect
to any other Pro Rata Repurchase which is not a
tender offer or exchange offer made during such
period), exceeds twelve percent (12%) of the
aggregate Fair Market Value of all shares of Common
Stock outstanding on the day before the ex-dividend
date with respect to such Extraordinary Distribution
which is paid in cash and on the distribution date
with respect to an Extraordinary Distribution which
is paid other than in cash, and/or (ii) of any shares
of capital stock of the Corporation (other than
shares of Common Stock), other securities of the
Corporation (other than securities of the type
referred to in subparagraph (ii) or (iii) of this
subsection (i), evidences of indebtedness of the
Corporation or any other person or any other property
(including shares of any subsidiary of the
Corporation) or any combination thereof. The Fair
Market Value of an Extraordinary Distribution for
purposes of subparagraph (iv) of this subsection (i)
shall be equal to the sum of the Fair Market Value of
the dividend or other distribution to holders
referred to in (i) and (ii) above, plus the amount of
any cash dividends which are not Extraordinary
Distributions made during such 12-month period and
not previously included in the calculation of an
adjustment pursuant to subparagraph (iv) of this
subsection (i).
"Fair Market Value" shall mean, as to shares of
Common Stock or any other class of capital stock or
securities of the Corporation or any other issuer
which are publicly traded, (i) for purposes of
subsections (f) and (g) hereof, the Current Market
Price on the date as of which the Fair Market Value
is to be determined, and (ii) for all other purposes
hereof, the average of the Current Market Prices of
such shares or securities for each day of the
Adjustment Period. The "Fair Market Value" of any
security which is not publicly traded or of any other
property shall mean the fair value thereof as
determined by an independent investment banking or
appraisal firm experienced in the valuation of such
securities or property selected in good faith by the
Board of Directors of the Corporation or a committee
thereof, or, if no such investment banking or
appraisal firm is in the good faith judgment of the
Board of Directors or such committee available to
make such determination, as determined in good faith
by the Board of Directors of the Corporation or such
committee.
"Non-Dilutive Amount" in respect of an issuance,
sale or exchange by the Corporation of any right or
warrant to purchase or acquire shares of Common Stock
(including any security convertible into or
exchangeable for shares of Common Stock) shall mean
the difference between (i) the product of the Fair
Market Value of a share of Common Stock on the day
preceding the first public announcement of such
issuance, sale or exchange multiplied by the maximum
number of shares of Common Stock which could be
acquired on such date upon the exercise in full of
such rights and warrants (including upon the
conversion or exchange of all such convertible or
exchangeable securities), whether or not exercisable
(or convertible or exchangeable) at such date, and
(ii) the aggregate amount payable pursuant to such
right or warrant to purchase or acquire such maximum
number of shares of Common Stock; provided, however,
that in no event shall the Non-Dilutive Amount be
less than zero. For purposes of the foregoing
sentence, in the case of a security convertible into
or exchangeable for shares of Common Stock, the
amount payable pursuant to a right or warrant to
purchase or acquire shares of Common Stock shall be
the Fair Market Value of such security on the date of
the issuance, sale or exchange of such security by
the Corporation.
"Pro Rata Repurchase" shall mean any purchase of
shares of Common Stock by the Corporation or any
subsidiary thereof, whether for cash, shares of
capital stock of the Corporation, other securities of
the Corporation, evidences of indebtedness of the
Corporation or any other person or any other property
(including shares of a subsidiary of the
Corporation), or any combination thereof, effected
while any shares of Series B Preferred Stock are
outstanding, pursuant to any tender offer or exchange
offer subject to Section 13(e) of the Securities
Exchange Act of 1934, as amended (the "Exchange
Act"), or any successor provision of law, or pursuant
to any other offer available to substantially all
holders of Common Stock; provided, however, that no
purchase of shares by the Corporation or any
subsidiary thereof made (1) pursuant to the "Dutch
auction" self-tender offer announced by the
Corporation on July 10, 1989 or (2) in open market
transactions shall be deemed a Pro Rata Repurchase.
For purposes of this subparagraph (vii) shares shall
be deemed to have been purchased by the Corporation
or any subsidiary thereof "in open market
transactions" if they have been purchased
substantially in accordance with the requirements of
Rule 10b-18 as in effect under the Exchange Act, on
the date shares of Series B Preferred Stock are
initially issued by the Corporation or on such other
terms and conditions as the Board of Directors of the
Corporation or a committee thereof shall have
determined are reasonably designed to prevent such
purchases from having a material effect on the
trading market for the Common Stock.
(viii) Whenever an adjustment to the Conversion
Price and the related voting rights of the Series B
Preferred Stock is required, the Corporation shall
forthwith place on file with the transfer agent for
the Common Stock and the Series B Preferred Stock,
and with the Secretary of the Corporation, a
statement signed by two officers of the Corporation
stating the adjusted Conversion Price determined as
provided herein and the resulting conversion ratio,
and the voting rights (as appropriately adjusted), of
the Series B Preferred Stock. Such statement shall
set forth in reasonable detail such facts as shall be
necessary to show the reason and the manner of
computing such adjustment, including any
determination of Fair Market Value involved in such
computation. Promptly after each adjustment to the
Conversion Price of the Series B Preferred Stock, the
Corporation shall mail a notice thereof and of the
then prevailing conversion ratio to each holder of
Series B Preferred Stock.
(ix) In the event that, at any time as a result
of an adjustment made pursuant to subsection (i) of
this subdivision 17, the holder of any shares of
Series B Preferred Stock upon thereafter surrendering
such shares for conversion, shall become entitled to
receive any shares or other securities of the
Corporation other than shares of Common Stock, the
Conversion Price in respect of such other shares or
securities so receivable upon conversion of Series B
Preferred Stock shall thereafter be adjusted, and
shall be subject to further adjustment from time to
time, in a manner and on terms as nearly equivalent
as practicable to the provisions with respect to
Common Stock contained in subsection (i) hereof, and
the provisions of subsections (a) through (h) of this
subdivision 17 with respect to the Common Stock shall
apply on like or similar terms to any such other
shares or securities.
FIFTH: The Secretary of State of the State of New York is
hereby designated as the agent of the Corporation upon whom
process in any action or proceeding against it may be served.
The post office address to which the Secretary of State shall
mail a copy of any process against it served on him is:
XEROX CORPORATION
800 Long Ridge Road
P.O. Box 1600
Stamford, CT 06904-1600
Attention: General Counsel
SIXTH: Its duration is to be perpetual.
SEVENTH: The number of directors shall be not less than
five (5) nor more than twenty-one (21) as determined in the
manner prescribed by the By-Laws.
EIGHTH: The Corporation may purchase, acquire, hold and
dispose of the stocks, bonds and other evidences of
indebtedness of any corporation, domestic or foreign, and may
issue in exchange therefor, its stock, bonds or other
obligations.
NINTH: A person who is or was a director of the
Corporation shall not be personally liable to the Corporation
or its shareholders for damages for any breach of duty in such
capacity, except to the extent that the Business Corporation
Law of the State of New York as in effect from time to time
expressly provides that the foregoing provisions shall not
eliminate or limit such personal liability. Nothing in this
Article shall directly or indirectly increase the liability of
any such person based upon acts or omissions occurring before
the adoption hereof. No amendment, modification or repeal of
this Article shall adversely affect any right or protection of
any director that exists at the time of such change.
IN WITNESS WHEREOF, this Certificate has been signed on
the 17th day of October, 1996 and the statements contained
therein are affirmed as true under penalties of perjury.
/s/ Paul Allaire
Paul A. Allaire
Chairman of the Board
/s/ Eunice M. Filter
E. M. Filter
Secretary