EXHIBIT 4.2
CERTIFICATE OF DESIGNATIONS
OF
STEP-UP CONVERTIBLE PREFERRED STOCK
(Par Value $0.10 Per Share)
OF
FREEPORT-McMoRan COPPER & GOLD INC.
The number, voting powers, designations, preferences,
rights, qualifications, limitations and restrictions of the
corporation's Step-Up Convertible Preferred Stock are as set
forth below:
1. Designation. (a) 700,000 shares of Preferred
Stock of the corporation are hereby constituted as a series of
Preferred Stock designated as "Step-Up Convertible Preferred
Stock" (hereinafter called "this Series"). Each share of this
Series shall be identical in all respects with the other shares
of this Series except as to the dates from and after which
dividends thereon shall be cumulative. The Board of Directors is
authorized to increase or decrease (but not below the number of
shares of this Series then outstanding) the number of shares of
this Series.
(b) Shares of this Series which have been converted
into Class A Common Stock of the corporation, redeemed for cash,
Class A Common Stock or a combination thereof, as hereinafter
provided, or purchased by the corporation shall be canceled, and
shall revert to authorized but unissued shares of Preferred Stock
undesignated as to series, and may be reissued as a part of this
Series or may be reclassified and reissued as part of a new or
existing series of Preferred Stock to be created by resolution or
resolutions of the Board of Directors, all subject to the
conditions or restrictions on issuance set forth in any
resolution or resolutions adopted by the Board of Directors
providing for the issue of such series of Preferred Stock.
2. Dividends. (a) The holders of shares of this
Series shall be entitled to receive, but only out of funds
legally available therefor, cash dividends as hereinafter
provided. Such dividends shall be paid when, as and if declared
by the Board of Directors on the first day of February, May,
August and November in each year (each such date being referred
to herein as a "Dividend Payment Date") to holders of record on
the record date determined by the Board of Directors in advance
of the payment of each particular dividend. Such dividends shall
be cumulative from the date of original issuance of the shares of
this Series.
(b) So long as any shares of this Series shall be
outstanding, the corporation shall not, unless full cumulative
dividends for all past dividend periods shall have been paid or
declared and set apart for payment upon all outstanding shares of
this Series and the shares of any other class or series of
Preferred Stock (including the Gold-Denominated Preferred Stock,
the Gold-Denominated Preferred Stock, Series II, the Silver-
Denominated Preferred Stock and the 7% Convertible Exchangeable
Preferred Stock) and any other class or series of stock of the
corporation ranking, as to dividends, on a parity with shares of
this Series (the shares of any other class or series of Preferred
Stock and any other class or series of stock of the corporation
ranking, as to dividends, on a parity with shares of this Series
being herein referred to as "Parity Dividend Stock"), (i)
declare, pay or set apart any amounts for dividends on, or make
any other distribution in cash or other property in respect of,
the Class A Common Stock of the corporation, Class B Common Stock
of the corporation or any other stock of the corporation ranking
junior to this Series as to dividends or distribution of assets
upon liquidation, dissolution or winding up of the affairs of the
corporation (the Class A Common Stock, the Class B Common Stock
and any such other stock being herein referred to as "Junior
Stock"), other than a dividend payable solely in Junior Stock,
(ii) purchase, redeem or otherwise acquire for value any shares
of Junior Stock, directly or indirectly, other than as a result
of a reclassification, exchange or conversion of one Junior Stock
for or into another Junior Stock, or other than through the use
of proceeds of a substantially contemporaneous sale of other
Junior Stock, or (iii) make any payment on account of, or set
aside money for, a sinking or other like fund for the purchase,
redemption or other acquisition for value of any shares of Junior
Stock. For purposes of this Section 2, if any depositary shares
have been issued with respect to any series of stock, actions
with respect to such depositary shares, including acquisition of
and payments on or with respect to such depositary shares, shall
be regarded as actions with respect to such series of stock.
(c) If the funds available for the payment of
dividends are insufficient to pay in full the dividends payable
on all outstanding shares of this Series and shares of Parity
Dividend Stock, the total available funds to be paid in partial
dividends on the shares of this Series and shares of Parity
Dividend Stock shall be divided among this Series and the Parity
Dividend Stock in proportion to the aggregate amounts of
dividends accrued and unpaid with respect to this Series and the
Parity Dividend Stock. Accruals of dividends shall not bear
interest.
3. Dividend Rate. The Dividend Rate on the shares of
this Series for the period from the date of original issue
thereof to and including August 1, 1996, shall be $25.00 per
annum per share and for each Dividend Period thereafter shall be
$35.00 per annum per share. The term "Dividend Period", as used
herein, means, with respect to any Dividend Payment Date, the
period commencing on the day following the immediately preceding
Dividend Payment Date to and including such Dividend Payment
Date.
4. Redemption. (a) The shares of this Series shall
not be redeemable prior to August 1, 1996. On and after that
date, the corporation may, at its option, redeem the shares of
this Series, in whole or in part, at any time or from time to
time, as set forth herein, subject to the provisions described
below.
(b)(i) The shares of this Series may be redeemed for
Class A Common Stock, at the option of the corporation, at any
time on or after August 1, 1996 and prior to August 1, 1999 only
if, for 20 Trading Days within any period of 30 consecutive
Trading Days, including the last Trading Day of such period, the
Current Market Price of the Class A Common Stock on each of such
20 Trading Days exceeds 125% of the Conversion Price in effect on
such Trading Day. In order to exercise this redemption option,
the corporation must issue a press release announcing the
redemption (the "Press Release") prior to the opening of business
on the third Trading Day after the condition in the preceding
sentence has been met but in no event prior to August 1, 1996.
The Press Release shall announce the redemption and set forth the
number of shares of this Series which the corporation intends to
redeem. The corporation may redeem shares of this Series
pursuant to this Section subsection (b) only if the Class A
Common Stock is listed or admitted to trading on a national or
regional securities exchange in the United States or reported by
the National Association of Securities Dealers Automated
Quotation System ("NASDAQ").
(ii) Upon redemption of shares of this Series by the
corporation in accordance with Section 4(b)(i) hereof on the date
specified in the notice to holders required under Section
4(b)(iii) hereof (the "Redemption Date"), each share of this
Series so redeemed shall be redeemed for a number of shares of
Class A Common Stock equal to $500.00 divided by the Conversion
Price as of the opening of business on the Redemption Date. The
Redemption Date shall be selected by the corporation, shall be
specified in the notice of redemption and shall be not less than
15 days or more than 60 days after the date on which the
corporation issues the Press Release.
Upon any redemption of this Series for Common Stock
pursuant to this subsection (b), the corporation shall pay any
accrued and unpaid dividends for any Dividend Period ending on or
prior to the Redemption Date. If a Redemption Date falls after a
dividend payment record date and prior to the corresponding
Dividend Payment Date, then each holder of shares of this Series
at the close of business on such dividend payment record date
shall be entitled to the dividend payable on such shares on the
corresponding Dividend Payment Date notwithstanding the
redemption of such shares before such Dividend Payment Date. In
the case of any Redemption Date occurring prior to the record
date for the November 1, 1996 Dividend Payment Date, the holders
of the shares of this Series to be redeemed on such Redemption
Date shall be entitled to any accrued and unpaid dividends
through August 1, 1996 but not thereafter. Except as provided
above, the corporation shall make no payment or allowance for
unpaid dividends, whether or not in arrears, on shares of this
Series called for redemption under this subsection (b) for
Class A Common Stock or on the shares of Class A Common Stock
issued upon such redemption.
(iii) If the corporation elects to redeem shares of
this Series pursuant to Section 4(b)(i) hereof, notice of such
redemption shall be given not more than four Business Days after
the date on which the corporation issues the Press Release, to
each holder of record of the shares to be redeemed. Such notice
shall be provided by first class mail, postage prepaid, at such
holder's address as the same appears on the stock records of the
corporation, and shall state, as appropriate: (1) the Redemption
Date; (2) the number of shares of this Series (expressed in one-
twentieths of a share of this Series) to be redeemed and, if
fewer than all the shares held by such holder are to be redeemed,
the number of such shares (expressed in one-twentieths of a share
of this Series) to be redeemed from such holder; (3) the number
of shares of Class A Common Stock to be issued with respect to
each one-twentieth of a share of this Series; (4) the place or
places at which certificates for such shares are to be
surrendered for certificates representing shares of Class A
Common Stock; and (5) the date on which dividends on the shares
to be redeemed shall cease to accrue as provided herein. Failure
to mail such notice, or any defect therein or in the mailing
thereof, to any particular holder shall not affect the validity
of the proceeding for the redemption of any shares so to be
redeemed from any other holder.
At the close of business on the Redemption Date, each
holder of shares of this Series to be redeemed (unless the
corporation defaults in the delivery of the shares of Class A
Common Stock or cash payable on such Redemption Date) shall be
deemed to be the record holder of the number of shares of Class A
Common Stock into which such shares of this Series are to be
redeemed, regardless of whether such holder has surrendered the
certificates representing such holder's shares of this Series
that have been redeemed. As promptly as practicable after the
surrender in accordance with said notice of the certificates for
any such shares so redeemed (properly endorsed or assigned for
transfer, if the corporation shall so require and the notice
shall so state), such shares shall be exchanged for certificates
of shares of Class A Common Stock and any cash (without interest
thereon) for which such shares have been redeemed.
(c)(i) At any time on or after August 1, 1999, the
shares of this Series may be redeemed, in whole or in part, at
the option of the corporation at a redemption price of $ $500.00
per share, plus an amount equal to all accrued and unpaid
dividends to and including the date fixed for redemption. The
corporation may, except as provided below, pay the redemption
price in cash, Class A Common Stock or any combination thereof;
provided that the corporation may elect to pay the redemption
price in whole or in part in Class A Common Stock only if the
Class A Common Stock is listed or admitted to trading on a
national or regional securities exchange in the United States or
reported by NASDAQ; and provided, further that any accrued and
unpaid dividends must be paid in cash.
(ii) At least 15 days but no more than 60 days prior
to the date fixed for the redemption of the shares of this Series
in accordance with Section 4(c)(i) hereof (the "Call Date"), a
written notice will be mailed to each holder of record (and each
beneficial owner to the extent required by law) of shares of this
Series to be redeemed, notifying such holder of the corporation's
election to redeem such shares, stating the Call Date, stating
the corporation's election with respect to whether the payment of
the redemption price is to be made in cash, Class A Common Stock
or a combination thereof, and calling upon such holder to
surrender to the corporation on the Call Date at the place
designated in such notice the certificate or certificates
representing the shares called for redemption. On or after the
Call Date, each holder of shares of this Series to be redeemed
must present and surrender his certificate or certificates for
such shares to the corporation at the place designated in such
notice and thereupon the redemption price of such shares, in the
manner elected by the corporation, will be paid and/or delivered
to or on the order of the person whose name appears on such
certificate or certificates as the owner thereof and each
surrendered certificate will be canceled. Except as provided in
Section 4(c)(iv) hereof, the corporation may not change the form
of consideration (or components or percentages of components
thereof) to be paid by the corporation in respect of such
redemption once the corporation has given, or caused to be given,
the applicable redemption notice. At the close of business on
the Redemption Date, each holder of shares of this Series to be
redeemed (unless the corporation defaults in the delivery of the
shares of Class A Common Stock or cash payable on such Redemption
Date) shall be deemed to be the record holder of the number of
shares of Class A Common Stock into which such shares of this
Series are to be redeemed, regardless of whether such holder has
surrendered the certificates representing such holder's shares of
this Series that have been redeemed, dividends on the shares of
this Series so redeemed shall cease to accrue, such shares shall
be deemed to be no longer outstanding, and all rights of the
holders thereof as holders of shares of this Series shall cease
and terminate.
(iii) If the corporation elects to pay the redemption
price by the delivery of Class A Common Stock, in whole or in
part, the number of shares to be delivered in respect of the
specified percentage of the redemption price to be paid in
Class A Common Stock shall be equal to the dollar amount of such
specified percentage of the redemption price divided by the
Market Price of a share of Class A Common Stock.
(iv) If the Market Price of the Class A Common Stock
is less than 90 per cent of the Weighted Average Price of the
Class A Common Stock over the five Trading Days immediately prior
to the date of the notice of redemption provided for in Section
4(c)(ii) hereof, the corporation, at its option, may elect to pay
the entire redemption price on such Call Date in cash, rather
than in whole or in part with the shares of Class A Common Stock
specified in the notice of redemption; provided that, if the
corporation so elects to pay the entire redemption price in cash,
the payment thereof shall be deferred until as of the tenth
Business Day following publication of the notice of such election
(the "Adjourned Call Date"), and in such event the corporation
shall pay, in addition to the redemption price, all accrued and
unpaid dividends on the shares of this Series to be redeemed
through the Adjourned Call Date. Upon determination of the
actual number of shares of Class A Common Stock issuable in
accordance with the foregoing provisions, the corporation will
publish such determination (and, if it is entitled to and so
elects, notification of any exercise of the election provided for
in the preceding sentence, of the Adjourned Call Date) promptly
in The Wall Street Journal or another daily newspaper of national
circulation.
(d) No fractional shares or scrip representing
fractions of shares of Class A Common Stock shall be issued upon
redemption of this Series. Instead of any fractional interest in
a share of Class A Common Stock that would otherwise be
deliverable upon the redemption of a share of this Series, the
corporation shall pay to the holder of such share an amount in
cash (computed to the nearest cent) based upon the Market Price
of Class A Common Stock. If more than one share shall be
surrendered for redemption at one time by the same holder, the
number of full shares of Class A Common Stock issuable upon
redemption thereof shall be computed on the basis of the
aggregate number of shares of this Series so surrendered.
(e) The corporation covenants that any shares of
Class A Common Stock issued upon redemption of this Series shall
be duly and validly issued, fully paid and non-assessable, shall
be issued from its authorized but unissued shares and, except as
provided in Section 9 hereof, will be free from all taxes, liens
and charges with respect to the issue thereof. The corporation
shall endeavor to list the shares of Class A Common Stock
required to be delivered upon redemption of this Series, prior to
such redemption, upon each national securities exchange, if any,
upon which the outstanding Class A Common Stock is listed at the
time of such delivery. The corporation shall endeavor to take
any action necessary to ensure that any shares of Class A Common
Stock issued upon the redemption of this Series are freely
transferable and not subject to any resale restrictions under the
Securities Act of 1933, as amended (the "Act"), or any applicable
state securities or blue sky laws.
(f) If less than all the outstanding shares of this
Series are to be redeemed, the number of shares of this Series to
be redeemed and the method of effecting such redemption, whether
by lot or pro rata, shall be as determined by the Board of
Directors.
(g) At any time after a notice of redemption has been
given in the manner prescribed herein with respect to a
redemption in which the corporation has elected to pay the
redemption price in whole in cash, and prior to the date fixed
for redemption, the corporation may deposit in trust, with a bank
or trust company identified in the notice of redemption having
capital, surplus and undistributed profits aggregating at least
$50,000,000, an aggregate amount of funds sufficient for such
redemption (including dividends accrued on the shares of this
Series called for redemption to the date fixed for redemption)
for immediate payment in the appropriate amounts upon surrender
of certificates for such shares. Any interest accrued on such
funds shall be paid to the corporation from time to time. Such
deposit in trust shall be irrevocable, except that any funds
deposited by the corporation which shall not be required for the
redemption for which they were deposited because of the exercise
of rights of conversion subsequent to the date of deposit shall
be returned to the corporation forthwith, and any funds deposited
by the corporation which are unclaimed at the end of two years
from the date fixed for such redemption shall be paid over to the
corporation upon its request, and upon such repayment the holders
of the shares so called for redemption shall look only to the
corporation for payment of the appropriate amount.
(h) From and after the date fixed for redemption
(unless the corporation shall default in making payment of the
amount payable upon such redemption), whether or not certificates
for shares so called for redemption have been surrendered by the
holders thereof as described below, dividends on the shares of
this Series so called for redemption shall cease to accrue, and
from and after the date of the deposit of trust funds for the
redemption of shares of this Series in accordance with the
provisions of Section 4(g) hereof, such shares shall be deemed to
be no longer outstanding, and all rights of the holders thereof
as stockholders of the corporation (except the right to receive
from the corporation the amount payable upon such redemption and,
up to the close of business on the date fixed for such
redemption, the right to convert such shares as set forth in
Section 7 hereof) shall cease and terminate. Upon surrender in
accordance with the notice of redemption of the certificates for
any shares of this Series so redeemed (properly endorsed or
assigned for transfer if the corporation shall so require and the
notice shall so state), the holder thereof shall be entitled to
receive payment of the redemption price plus an amount equal to
all accrued and unpaid dividends as aforesaid. If less than all
of the shares represented by any such surrendered certificate are
redeemed, the corporation shall execute and deliver to the holder
thereof, or to his written order, a certificate or certificates
representing the unredeemed shares.
(i) In no event shall the corporation redeem less than
all the outstanding shares of this Series and shares of any other
series of stock of the corporation ranking, as to dividends and
distribution of assets upon liquidation, dissolution or winding
up of the affairs of the corporation, on a parity with the shares
of this Series ("Parity Stock") pursuant to this Section 4 unless
full cumulative dividends for all past dividend periods shall
have been paid or declared and set apart for payment upon all
outstanding shares of this Series and the shares of such Parity
Stock.
(j) In connection with any redemption of shares of
this Series solely for cash, the corporation may enter into an
agreement with one or more investment bankers or other purchasers
for the purchase of the shares to be redeemed from the holders
thereof and the conversion of such purchased shares into shares
of Class A Common Stock as provided in Section 7 hereof. Such
agreement shall provide that the amount to be paid by such
purchasers to the holders of the shares of this Series to be
redeemed shall not be less than the redemption price for such
shares together with all accrued and unpaid dividends thereon to
and including the date fixed for redemption and may provide
further that such amount be deposited in trust, on or before the
close of business on the date fixed for redemption, with a bank
or trust company designated by the corporation meeting the
requirements set forth in Section 4(g) hereof. Notwithstanding
anything to the contrary contained in this Section 4, the
obligation of the corporation to pay the redemption price of the
shares of this Series to be redeemed, together with accrued and
unpaid dividends thereon to the date fixed for redemption, shall
be deemed to be satisfied and discharged to the extent such
amount is so paid by such purchasers. If such an agreement is
entered into, any shares of this Series to be redeemed that have
not been duly surrendered for conversion by the holders thereof
may, at the option of the corporation, be deemed, to the fullest
extent permitted by law, acquired by such purchasers from such
holders and (notwithstanding anything to the contrary contained
in this subsection (j) or in Section 7 hereof) surrendered by
such purchasers for conversion, all as of immediately prior to
the close of business on the date fixed for redemption, subject
to payment of the above amount as aforesaid.
(k) Definitions. For purposes of this Section 4, the
following terms shall have the meanings indicated:
(i) "accrued and unpaid dividends" in respect of
any share of this Series shall mean an amount computed
at the Dividend Rate for this 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 thereon. The amount accrued
subsequent to the most recent Dividend Period shall be
computed by dividing the quarterly dividend payment by
the actual number of days in the uncompleted quarter,
and thereafter multiplying this figure by the number of
days in such quarter up to and including the date to
which dividends are to be accrued.
(ii) "Business Day" shall mean any day other than
a Saturday or Sunday or a day on which state or
federally chartered banking institutions in New York,
New York are not required to be open.
(iii) "Conversion Price" shall have the meaning
set forth in, and shall be subject to adjustment from
time to time as provided in, Section 7(d) hereof.
(iv) "Current Market Price" in respect of the
Class A Common Stock means the last reported sales
price, regular way, on such day, or, if no sale takes
place on such day, the average of the reported closing
bid and asked prices on such day, regular way, in
either case as reported in the composite transactions
for the New York Stock Exchange or, if such security is
not listed or admitted for trading on the New York
Stock Exchange, on the principal national or regional
securities exchange in the United States on which the
Class A Common Stock is listed or admitted to trading,
or if the Class A Common Stock is not listed or
admitted to trading on a national or regional
securities exchange in the United States, on the
National Market System of NASDAQ or, if the Class A
Common Stock is not quoted on such National Market
System, the average of the closing bid and asked prices
on such day in the over-the-counter market as reported
by NASDAQ, or if bid and asked prices for such security
on such day shall not have been reported through NASDAQ
or by the National Quotation Bureau Incorporated, the
average of the bid and asked prices on 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.
(v) "Market Price" means the Weighted Average
Price of a share of Class A Common Stock over the five
Trading Day period ending on the third Business Day
prior to the applicable Redemption Date or Call Date
(or, if such third Business Day is not a Trading Day,
on the last Trading Day prior to such Business Day),
appropriately adjusted to take into account the
occurrence, during the period commencing on the first
of such Trading Days and ending on such Redemption Date
or Call Date, of any event described in Section 7(d)
hereof.
(vi) "Trading Day" shall mean any day on which
the securities in question are traded on the New York
Stock Exchange, or if such securities are not listed or
admitted for trading on the New York Stock Exchange, on
the principal national or regional securities exchange
on which such securities are listed or admitted, or if
not listed or admitted for trading on any national or
regional securities exchange, on the National Market
System of NASDAQ, or if such securities are not quoted
on such National Market System, in the applicable
securities market in which the securities are traded.
(vii) "Weighted Average Price" of a share of
Class A Common Stock on any Trading Day or over any
period of Trading Days means the weighted average per
share sale price for all sales of shares of Class A
Common Stock on such Trading Day or during such period,
as the case may be (or, if the information necessary to
calculate such weighted average per share sale price is
not reported, the average of the high and low sale
prices or, if no sales prices are reported, the average
of the bid and ask prices or, if more than one in
either case, the average of the average bid and average
ask prices) as reported in the composite transactions
for the New York Stock Exchange, or if the Class A
Common Stock is not listed or admitted to trading on
such Exchange, as reported in the composite
transactions for the principal national or regional
securities exchange in the United States on which the
Class A Common Stock is listed or admitted to trading,
or if the Class A Common Stock is not listed or
admitted to trading on a United States national or
regional securities exchange, as reported by NASDAQ or
by the National Quotation Bureau Incorporated; provided
that, in the absence of such quotations, the
corporation shall be entitled to determine the Weighted
Average Price on the basis of such quotations as it
considers appropriate.
5. Voting Rights. (a) Except for the voting rights
described below and except as otherwise required by law, the
holders of shares of this Series shall not be entitled to vote on
any matter or to receive notice of, or to participate in, any
meeting of the stockholders of the corporation. Each share of
Preferred Stock of this Series will be entitled to one vote on
matters which holders of such series are entitled to vote.
(b) The shares of this Series shall be entitled to
vote with respect to the election of directors in accordance with
Sections (b)(4) and (b)(5) of Article FOURTH of the certificate
of incorporation.
(c) Whenever dividends payable on shares of this
Series shall be in default in an aggregate amount equal to or
exceeding six full quarterly dividends on all shares of this
Series at the time outstanding, the number of directors then
constituting the Board of Directors of the corporation shall be
increased by two, and holders of shares of this Series shall, in
addition to any other voting rights, have the right, voting
separately as a class together with holders of all other series
of stock of the Company ranking on a parity with shares of this
Series either as to dividends or the distribution of assets upon
liquidation, dissolution or winding up and upon which like voting
rights have been conferred and are exercisable (such other series
of stock being herein referred to as "Other Voting Stock"), to
elect such two additional directors. In such case, the Board of
Directors will be increased by two directors, and the holders of
shares of this Series (either alone or with the holders of Other
Voting Stock) will have the exclusive right as members of such
class, as described above, to elect two directors at the next
annual meeting of stockholders. Whenever such right of the
holders of shares of this Series shall have vested, such right
may be exercised initially either at a special meeting of such
holders as provided in Section 5(d) hereof or at any annual
meeting of stockholders held for the purpose of electing
directors, and thereafter at such annual meetings. The right of
the holders of shares of this Series to vote together as a class
with the holders of shares of any Other Voting Stock shall
continue until such time as all dividends accrued on outstanding
shares of this Series to the Dividend Payment Date next preceding
the date of any such determination shall have been paid in full,
or declared and set apart in trust for payment, at which time the
right of the holders of shares of this Series so to vote shall
terminate, except as herein or by law expressly provided, subject
to revesting upon the occurrence of a subsequent default of the
character mentioned above.
(d) At any time when the right of the holders of
shares of this Series to elect directors as provided in Section
5(c) hereof shall have vested, and if such right shall not
already have been initially exercised, a proper officer of the
corporation, upon the written request of the holders of record of
at least 10% of the aggregate number of shares of this Series and
shares of any Other Voting Stock at the time outstanding,
addressed to the Secretary of the corporation, shall call a
special meeting of the holders of shares of this Series and of
such Other Voting Stock for the purpose of electing directors.
Such meeting shall be held at the earliest practicable date upon
the same form of notice as is required for annual meetings of
stockholders at the place for the holding of annual meetings of
stockholders of the corporation (or such other suitable place as
is designated by such officer). If such meeting shall not be
called by a proper officer of the corporation within 20 days
after personal service of such written request upon the Secretary
of the corporation, or within 20 days after mailing the same
within the United States of America, addressed to the Secretary
of the corporation at its principal office (such mailing to be
evidenced by the registry receipt issued by the postal
authorities), then the holders of record of at least 10% of the
aggregate number of shares of this Series and shares of any Other
Voting Stock at the time outstanding may designate in writing one
of their number to call such a meeting at the expense of the
corporation, and such meeting may be called by such person so
designated upon the same form of notice as is required for annual
meetings of stockholders and shall be held at the place for the
holding of annual meetings of stockholders of the corporation (or
such other suitable place as is designated by such person). Any
holder of shares of this Series so designated shall have access
to the registry books of the corporation for the purpose of
causing a meeting of stockholders to be called pursuant to this
subsection (d). Notwithstanding anything to the contrary
contained in this subsection (d), no such special meeting shall
be called during the period within 90 days immediately preceding
the date fixed for the next annual meeting of stockholders of the
corporation.
(e) At any meeting held for the purpose of electing
directors at which holders of shares of this Series shall have
the right, voting together as a class with holders of shares of
any Other Voting Stock to elect directors as provided in Section
5(c) hereof, the presence, in person or by proxy, of the holders
of 33 1/3% of the aggregate number of shares of this Series and
shares of such Other Voting Stock at the time outstanding shall
be required and be sufficient to constitute a quorum of such
class for the election of directors pursuant to such Section
5(c). At any such meeting or adjournment thereof, (i) the
absence of a quorum of the shares of this Series and shares of
such Other Voting Stock shall not prevent the election of the
directors to be elected otherwise than pursuant to Section 5(c)
hereof and (ii) in the absence of a quorum, either of the shares
of this Series and shares of such Other Voting Stock or of any
other shares of stock of the corporation, or both, a majority of
the holders, present in person or by proxy, of the class or
classes of stock which lack a quorum shall have the power to
adjourn the meeting for the election of directors whom they are
entitled to elect, from time to time without notice other than
announcement at the meeting, until a quorum shall be present.
(f) During any period when the holders of shares of
this Series shall have the right to vote together as a class with
the holders of shares of any Other Voting Stock for directors as
provided in Section 5(c) hereof, (i) the directors so elected by
such holders shall continue in office until their successors
shall have been elected by such holders or until termination of
the rights of such holders to vote as a class for directors and
(ii) any vacancies in the Board of Directors shall be filled only
by a majority (even if that be only a single director) of the
remaining directors theretofore elected by the holders of the
class or classes of stock which elected the director whose office
shall have become vacant. Immediately upon termination of the
right of holders of this Series and any Other Voting Stock to
vote as a class for directors, (i) the term of office of the
directors so elected shall terminate and (ii) the number of
directors shall be such number as may be provided for in the
by-laws of the corporation irrespective of any increase pursuant
to the provisions of Section 5(c) hereof.
(g) In addition to any other vote required by law, the
corporation shall not (i) amend, alter or repeal, whether by
merger, consolidation or otherwise, the provisions of the
certificate of incorporation (including the terms of this Series)
so as to materially and adversely affect any right, preference,
privilege or voting power of this Series or (ii) create,
authorize or issue any series or class of stock ranking prior,
either as to payment of dividends or distributions of assets upon
liquidation, dissolution or winding up, to this Series, without
the affirmative vote or consent of the holders of at least two-
thirds of the aggregate number of shares of this Series at the
time outstanding, voting as a separate class; provided, that any
increase in the total number of authorized shares of Common Stock
(or any series thereof) or Preferred Stock (or any series
thereof), or the creation, authorization or issuance of any
series of stock ranking, as to dividends or distribution of
assets upon liquidation, dissolution or winding up of the affairs
of the corporation, on a parity with the shares of this Series
will not be deemed to materially and adversely affect such
rights, preferences, privileges or voting powers; provided,
further, that no class vote of the holders of shares of this
Series shall be required if, at or prior to the time when the
actions described in clause (i) or (ii) of this subsection (g)
shall become effective, provision is made in accordance with
Section 4 hereof for the redemption of all shares of this Series
at the time outstanding.
6. Preference upon Liquidation. (a) In the event of
any voluntary or involuntary liquidation, dissolution or winding
up of the affairs of the corporation, after payment or provision
for payment of the debts and other liabilities of the corporation
and of dividends and liquidation preferences in respect of any
other stock of the corporation ranking senior to the shares of
this Series as to such payments, the holders of shares of this
Series shall be entitled to receive, out of the remaining net
assets of the corporation, the amount of $500.00 in cash for each
share of this Series, plus an amount equal to all dividends
(whether or not earned or declared) accrued and unpaid on each
such share up to the date fixed for distribution, before any
distribution shall be made to or set apart for the holders of any
Junior Stock. If, after payment or provision for payment of the
debts and other liabilities of the corporation and of dividends
and liquidation preferences in respect of any other stock of the
corporation ranking senior to the shares of this Series as to
such payments, the remaining net assets of the corporation are
not sufficient to pay to the holders of shares of this Series the
full amount of their preference set forth above, then the
remaining net assets of the corporation shall be divided among
and paid to the holders of shares of this Series, holders of
shares of any other class or series of Preferred Stock and
holders of shares of any other stock of the corporation on a
parity with this Series as to dividends and distribution of
assets upon liquidation, dissolution or winding up of the affairs
of the corporation ratably per share in proportion to the full
per share amounts to which they respectively are entitled. For
purposes of this subsection (a) and Section 6(b) hereof, a
consolidation or merger of the corporation with one or more other
corporations or the sale of all or substantially all of the
assets of the corporation shall not be deemed to be a voluntary
or involuntary liquidation, dissolution or winding up of the
affairs of the corporation.
(b) Subject to the rights of the holders of shares of
any series or class of stock ranking prior to this Series and of
the holders of any stock of the corporation ranking on a parity
as to dividends and distribution of assets upon liquidation,
dissolution or winding up of the affairs of the corporation,
after payment shall have been made in full to the holders of this
Series as provided in Section 6(a) hereof and this subsection
(b), the holders of any Junior Stock shall, subject to the
respective terms and provisions (if any) applying thereto, be
entitled to receive any and all assets remaining to be paid or
distributed, and shares of this Series shall not be entitled to
share therein.
7. Conversion Privilege. (a) Subject to and upon
compliance with the provisions of this Section 7, at the option
of the holder thereof, each share of this Series may, at any time
(unless shares of this Series shall be called for redemption,
then, with respect to shares of this Series so called, until and
including, but, if the corporation shall not default in making
payment of the amount payable on such redemption, not after, the
close of business on the date fixed for redemption), be converted
into a number of fully paid and nonassessable shares of Class A
Common Stock equal to the quotient obtained by dividing $500.00
by the Conversion Price (as hereinafter defined) in effect at the
Date of Conversion (as hereinafter defined).
(b) In order to exercise the conversion privilege, any
holder of shares of this Series to be converted shall surrender
such shares to the corporation at any time during usual business
hours at the place or places (including a place in the Borough of
Manhattan, The City of New York) maintained for such purpose,
accompanied by a fully executed written notice, in substantially
the form set forth on the reverse of the certificate representing
shares of this Series, that the holder elects to convert such
shares. Such notice shall also state the name or names (with
address) in which the certificate or certificates for shares of
Class A Common Stock shall be issued. Shares of this Series
surrendered for conversion shall (if so required by the
corporation) be properly endorsed or assigned for transfer by the
holder or his attorney duly authorized in writing. The holders
of shares of this Series at the close of business on any record
date for the payment of dividends on such shares will be entitled
to receive the dividend payable on such shares on the
corresponding Dividend Payment Date notwithstanding the
conversion thereof or the corporation's default in the payment of
the dividend due on such Dividend Payment Date. Shares of this
Series surrendered for conversion during the period from the
close of business on any record date for the payment of dividends
on such shares to the opening of business on the corresponding
Dividend Payment Date (except shares called for redemption on a
Redemption Date or Call Date during the period from such record
date to and including the Dividend Payment Date) must be
accompanied by payment of an amount equal to the dividend payable
on such shares on such Dividend Payment Date. A holder of shares
of this Series on a record date for the payment of dividends on
such shares who converts such shares on a Dividend Payment Date
will receive the dividend payable on such shares by the
corporation on such date, and the converting holder need not
include a payment in the amount of any such dividend upon
surrender of such shares for conversion. As promptly as
practicable after the receipt of such notice and the surrender of
such shares of this Series as aforesaid, the corporation shall,
subject to the provisions of Section 9 hereof, issue and deliver
at such place or places referred to in this subsection (b) to
such holder, or on his written order, a certificate or
certificates for the number of full shares of Class A Common
Stock issuable on such conversion of shares of this Series in
accordance with the provisions of this Section 7, and cash, as
provided in Section 7(c) hereof, in respect of any fraction of a
share of Class A Common Stock otherwise issuable upon such
conversion. Such conversion shall be deemed to have been
effected immediately prior to the close of business on the date
(herein called the "Date of Conversion") on which such notice
shall have been received by the corporation and such shares of
this Series shall have been surrendered as aforesaid, and the
person or persons in whose name or names any certificate or
certificates for shares of Class A Common Stock shall be issuable
upon such conversion shall be deemed to have become on the Date
of Conversion the holder or holders of record of the shares of
Class A Common Stock represented thereby; provided, that any such
surrender on any date when the registry books of the corporation
shall be closed shall constitute the person or persons in whose
name or names the certificate or certificates for such shares are
to be issued as the record holder or holders thereof for all
purposes at the opening of business on the next succeeding day on
which such registry books are open, but such conversion shall
nevertheless be at the Conversion Price in effect at the close of
business on the date when such shares of this Series shall have
been so surrendered with the conversion notice. In the case of
conversion of a portion, but less than all, of the shares of this
Series represented by a certificate surrendered for conversion,
the corporation shall execute, and deliver to the holder thereof,
or on his written order, a certificate or certificates
representing the shares of this Series which the holder has not
elected to convert into shares of Class A Common Stock. No
payment or adjustment shall be made for dividends accrued on the
shares of this Series converted as provided in this Section 7 or
for dividends or distributions accrued on any Class A Common
Stock.
(c) No fractions of shares or scrip representing
fractions of shares shall be issued upon conversion of shares of
this Series. If more than one share of this Series shall be
surrendered for conversion at one time by the same holder, the
number of full shares of Class A Common Stock which shall be
issuable upon conversion of such shares shall be computed on the
basis of the aggregate number of shares of this Series
surrendered for conversion. If any fraction of a share of Class
A Common Stock would, except for the provisions of this
subsection (c), be issuable on the conversion of any shares of
this Series, the corporation shall make payment in lieu thereof
in an amount of United States dollars equal to the value of such
fraction computed on the basis of the closing price of the Class
A Common Stock as reported on the Composite Tape for New York
Stock Exchange - Listed Stocks (or if the Class A Common Stock is
not listed or admitted to trading on such exchange on the Date of
Conversion, then on the principal national or regional securities
exchange on which the Class A Common Stock is then listed or
admitted to trading, or, if not listed or admitted to trading on
any national or regional securities exchange, then as reported by
the National Association of Securities Dealers, Inc. through
NASDAQ or a similar organization if NASDAQ is no longer reporting
information) on the last Trading Day (as hereinafter defined)
prior to the Date of Conversion or if no such sale takes place on
such day, the last sale price for such day shall be the average
of the closing bid and asked prices regular way on the New York
Stock Exchange (or if the Class A Common Stock is not listed or
admitted to trading on such exchange, on the principal national
securities exchange on which the Class A Common Stock is then
listed or admitted to trading, or, if not listed or admitted to
trading on any national securities exchange, the average of the
highest bid and lowest asked prices as reported by the National
Association of Securities Dealers, Inc. through NASDAQ or a
similar organization if NASDAQ is no longer reporting
information) (any such last sale price being herein referred to
as the "Last Sale Price"). If on such Trading Day the Class A
Common Stock is not quoted by any such organization, the fair
value of such Class A Common Stock on such day, as determined by
the Board of Directors, shall be used. For the purpose of this
subsection (c), the term "Trading Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday, other than any day on
which securities are not traded on such exchange or in such
market.
(d) The Conversion Price per share of Class A Common
Stock issuable upon conversion of shares of this Series (herein
called the "Conversion Price") initially shall be $29.94 as of
the Initial Filing Date (as defined in the Certificate of
Incorporation). The Conversion Price shall be subject to
adjustment from time to time as follows:
(i) In case the corporation shall (1) pay a
dividend or make a distribution in shares of Class A
Common Stock, (2) subdivide its outstanding shares of
Class A Common Stock into a greater number of shares or
(3) combine its outstanding shares of Class A Common
Stock into a smaller number of shares, the Conversion
Price in effect immediately prior to such action shall
be adjusted so that the holder of any shares of this
Series thereafter surrendered for conversion shall be
entitled to receive the number of shares of Class A
Common Stock which he would have owned or have been
entitled to receive immediately following such action
had such shares been converted immediately prior
thereto. An adjustment made pursuant to this
subsection (d)(i) shall become effective immediately,
except as provided in subsection (d)(v) below, after
the record date in the case of a dividend or
distribution and shall become effective immediately
after the effective date in the case of a subdivision
or combination.
(ii) In case the corporation shall issue rights,
warrants or options to all holders of Class A Common
Stock entitling them (for a period not exceeding 45
days from the date of such issuance) to subscribe for
or purchase shares of Class A Common Stock at a price
per share less than the Recent Market Price per share
(as determined pursuant to subsection (d)(iv) below) of
the Class A Common Stock on the record date mentioned
below, the Conversion Price shall be adjusted to a
price, computed to the nearest cent, so that the same
shall equal the price determined by multiplying:
(1) the Conversion Price in effect
immediately prior to the date of issuance of such
rights or warrants by a fraction, of which
(2) the numerator shall be (A) the number of
shares of Class A Common Stock outstanding on the
date of issuance of such rights, warrants or
options, immediately prior to such issuance, plus
(B) the number of shares which the aggregate
offering price of the total number of shares so
offered for subscription or purchase would
purchase at such Recent Market Price, (determined
by multiplying such total number of shares by the
exercise price of such rights, warrants or options
and dividing the product so obtained by such
Recent Market Price), and of which
(3) the denominator shall be (A) the number
of shares of Class A Common Stock outstanding on
the date of issuance of such rights, warrants or
options, immediately prior to such issuance, plus
(B) the number of additional shares of Class A
Common Stock which are so offered for subscription
or purchase.
Such adjustment shall become effective immediately,
except as provided in subsection (d)(v) below, after
the record date for the determination of holders
entitled to receive such rights, warrants or options.
(iii) In case the corporation shall distribute to
all or substantially all holders of Class A Common
Stock evidences of indebtedness, equity securities
(including equity interests in the corporation's
Subsidiaries (as hereinafter defined)) other than Class
A Common Stock, or other assets (other than cash
dividends paid out of earned surplus of the corporation
or, if there shall be no earned surplus, out of net
profits for the fiscal year in which the dividend is
made and/or the preceding fiscal year), or shall
distribute to all or substantially all holders of Class
A Common Stock rights or warrants to subscribe for
securities (other than those referred to in subsection
(d)(ii) above), then in each such case the Conversion
Price shall be adjusted so that the same shall equal
the price determined by multiplying:
(1) the Conversion Price in effect
immediately prior to the date of such distribution
by a fraction, of which
(2) the numerator shall be the Recent Market
Price per share (as determined pursuant to
subsection (d)(iv) below) of the Class A Common
Stock on the record date mentioned below less the
then fair market value (as determined by the Board
of Directors, whose determination shall be
conclusive evidence of such fair market value, and
described in a resolution of the Board of
Directors filed with the transfer agent for the
shares of this Series) of the portion of the
assets, evidences of indebtedness and equity
securities so distributed or of such subscription
rights or warrants applicable to one share of
Class A Common Stock, and of which
(3) the denominator shall be such Recent
Market Price per share of the Class A Common
Stock.
Such adjustment shall become effective immediately,
except as provided in subsection (d)(v) below, after
the record date for the determination of stockholders
entitled to receive such distribution. As used herein,
the term "Subsidiary" means (i) any corporation or
other entity of which securities or other ownership
interests having ordinary voting power to elect a
majority of the Board of Directors or other persons
performing similar functions are at the time directly
or indirectly owned by the corporation or (ii) any
partnership of which more than 50% of the partnership
interests are owned by the corporation or any
Subsidiary.
(iv) For purposes of any computation under
subsections (d)(ii) and (d)(iii) above, the Recent
Market Price per share of Class A Common Stock on any
date shall be deemed to be the average of the Last Sale
Prices of a share of Class A Common Stock for the five
consecutive Trading Days selected by the corporation
commencing not more than 20 Trading Days before and
ending not later than the earliest of the date in
question and the date before the "ex" date with respect
to the issuance or distribution requiring such
computation. If on any such Trading Day the Class A
Common Stock is not quoted by any organization referred
to in the definition of Last Sale Price in Section 7(c)
hereof, the fair value of the Class A Common Stock on
such day, as determined by the Board of Directors,
shall be used. For purposes of this paragraph, the
term "'ex' date", when used with respect to any
issuance or distribution, means the first date on which
the Class A Common Stock trades regular way on the
principal national securities exchange on which the
Class A Common Stock is listed or admitted to trading
(or, if not so listed or admitted, on NASDAQ or a
similar organization if NASDAQ is no longer reporting
trading information) without the right to receive such
issuance or distribution.
(v) In any case in which this subsection (d)
shall require that an adjustment be made immediately
following a record date, the corporation may elect to
defer the effectiveness of such adjustment (but in no
event until a date later than the effective time of the
event giving rise to such adjustment), in which case
the corporation shall, with respect to any shares of
this Series converted after such record date and before
such adjustment shall have become effective (1) defer
paying any cash payment pursuant to Section 7(c) hereof
or issuing to the holder of shares of this Series the
number of shares of Class A Common Stock issuable upon
conversion in excess of the number of shares of Class A
Common Stock issuable thereupon only on the basis of
the Conversion Price prior to adjustment and (2) not
later than five business days after such adjustment
shall have become effective, pay to such holder the
appropriate cash payment pursuant to Section 7(c)
hereof and issue to such holder the additional shares
of Class A Common Stock issuable on such conversion.
(vi) No adjustment in the Conversion Price shall
be required unless such adjustment would require an
increase or decrease of at least 1% in the Conversion
Price; provided, that any adjustments which by reason
of this subsection (d)(vi) are not required to be made
shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this
Section 7 shall be made to the nearest cent or to the
nearest one-hundredth of a share, as the case may be.
(vii) Whenever the Conversion Price is adjusted
as herein provided, the corporation shall promptly (1)
file with the transfer agent for the shares of this
Series a certificate of an officer of the corporation
(an "Officer's Certificate") setting forth the
Conversion Price after such adjustment and setting
forth in reasonable detail the facts requiring such
adjustment and the calculations on which the adjustment
is based, which certificate shall be conclusive
evidence of the correctness of such adjustment and (2)
mail or cause to be mailed a notice of such adjustment
to each holder of shares of this Series at his address
as the same appears on the registry books of the
corporation.
Notwithstanding anything in this Section 7 to the contrary, the
corporation shall be entitled to make such reductions in the
Conversion Price, in addition to those required by this Section
7, as it in its discretion shall determine to be advisable in
order that any stock dividend, subdivision or combination of
shares, distribution of rights or warrants to purchase stock or
securities, distribution of securities convertible into or
exchangeable for stock, or distribution of assets (other than
cash dividends) hereafter made by the corporation to its
stockholders shall not be taxable.
(e) In case of any reclassification or change of
outstanding shares of Class A Common Stock (other than a change
in par value, or from par value to no par value, or from no par
value to par value, or as a result of a subdivision or
combination), or in case of any consolidation of the corporation
with, or merger of the corporation into, any other Person, or any
merger of another Person into the corporation (other than a
merger which does not result in any reclassification, change,
conversion, exchange or cancellation of outstanding shares of
Class A Common Stock) or any sale or transfer of all or
substantially all of the assets of the corporation, the
corporation, or the Person formed by such consolidation or
resulting from such merger or which acquires such assets, as the
case may be, shall make effective provision in the articles or
certificate of incorporation, providing that the holder of each
share of this Series then outstanding shall have the right
thereafter to convert such share only into the kind and amount of
securities, cash and other property receivable upon such
reclassification, change, consolidation, merger, sale or
transfer, by a holder of the number of shares of Class A Common
Stock into which such shares of this Series might have been
converted immediately prior to such reclassification, change,
consolidation, merger, sale or transfer, assuming such holder of
Class A Common Stock of the corporation (i) is not a Person with
which the corporation consolidated or into which the corporation
merged or which merged into the corporation or to which such sale
or transfer was made, as the case may be ("constituent Person"),
or an Affiliate (as hereinafter defined) of a constituent Person
and (ii) failed to exercise his rights of election, if any, as to
the kind or amount of securities, cash and other property
receivable upon such reclassification, change, consolidation,
merger, sale or transfer (provided that if the kind or amount of
securities, cash and other property receivable upon such
reclassification, change, consolidation, merger, sale or transfer
is not the same for each share of Class A Common Stock of the
corporation held immediately prior to such reclassification,
change, consolidation, merger, sale or transfer by others than a
constituent Person or an Affiliate thereof and in respect of
which such rights of election shall not have been exercised
("non-electing share"), then for the purpose of this subsection
(e) the kind and amount of securities, cash and other property
receivable upon such reclassification, change, consolidation,
merger, sale or transfer by each non-electing share shall be
deemed to be the kind and amount so receivable per share by a
plurality of the non-electing shares). Such articles or
certificate of incorporation shall provide for adjustments which,
for events subsequent to the effective date of such articles or
certificate of incorporation, shall be as nearly equivalent as
may be practicable to the adjustments provided for herein. The
above provisions of this subsection (e) shall similarly apply to
successive reclassifications, changes, consolidations, mergers,
sales or transfers.
For the purpose of this subsection (e), the term
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any
agency or political subdivision thereof, and the term "Affiliate"
of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the
purposes of the definition of "Affiliate", the term "control"
when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
(f) The corporation shall reserve, free from
preemptive rights, out of its authorized but unissued shares,
sufficient shares of Class A Common Stock to provide for the
conversion of the shares of this Series from time to time
outstanding as such shares of this Series are presented for
conversion.
(g) The corporation covenants that all shares of Class
A Common Stock which may be issued upon conversion of shares of
this Series will upon issue be duly and validly issued, fully
paid and nonassessable by the corporation and except as provided
in Section 9 hereof free from all taxes, liens and charges with
respect to the issue thereof.
8. Notice of Certain Events. In case:
(a) the corporation shall declare a dividend (or any
other distribution) payable to the holders of Class A Common
Stock (otherwise than cash dividends paid out of the earned
surplus of the corporation or, if there shall be no earned
surplus, out of net profits for the fiscal year in which the
dividend is made and/or the preceding fiscal year, and dividends
payable in Class A Common Stock); or
(b) the corporation shall authorize the granting to
the holders of Class A Common Stock of rights to subscribe for or
purchase any shares of stock of any class or of any other rights
or warrants; or
(c) the corporation shall authorize any
reclassification or change of the Class A Common Stock (other
than a subdivision or combination of its outstanding shares of
Class A Common Stock or a change in par value, or from par value
to no par value, or from no par value to par value), or any
consolidation, merger or share exchange to which the corporation
is a party and for which approval of any stockholders of the
corporation is required, or the sale or conveyance of all or
substantially all the property or business of the corporation; or
(d) there shall be proposed any voluntary or
involuntary dissolution, liquidation or winding-up of the
corporation;
then, the corporation shall cause to be filed at the place or
places maintained for the purpose of conversion of shares of this
Series as provided in Section 7(b) hereof, and shall cause to be
mailed to each holder of shares of this Series, at his address as
it shall appear on the registry books of the corporation, as
promptly as possible but in any event at least 20 days before the
date hereinafter specified (or the earlier of the dates
hereinafter specified, in the event that more than one date is
specified), a notice stating the date on which (i) a record is
expected to be taken for the purpose of such dividend,
distribution, rights, or warrants, or if a record is not to be
taken, the date as of which the holders of Class A Common Stock
of record to be entitled to such dividend, distribution, rights,
or warrants are to be determined, or (ii) such reclassification,
change, consolidation, merger, share exchange, sale, transfer,
conveyance, dissolution, liquidation or winding-up is expected to
become effective and the date, if any is to be fixed, as of which
it is expected that holders of Class A Common Stock of record
shall be entitled to exchange their shares of Class A Common
Stock for securities or other property deliverable upon such
reclassification, change, consolidation, merger, share exchange,
sale, transfer, conveyance, dissolution, liquidation or
winding-up.
9. Taxes. The corporation will pay any and all
documentary, stamp or similar taxes payable to the United States
of America or any political subdivision or taxing authority
thereof or therein in respect of the issue or delivery of (a)
certificates for shares of this Series on redemption of less than
all of the shares represented by any certificate for such shares
surrendered for redemption or (b) certificates for shares of
Class A Common Stock on redemption or conversion of shares of
this Series pursuant to Section 4 or Section 7 hereof; provided,
that the corporation shall not be required to pay any tax which
may be payable in respect of any transfer involved in the issue
or delivery of certificates for shares of this Series or Class A
Common Stock, as the case may be, in a name other than that of
the holder of shares of this Series to be redeemed or converted
and no such issue or delivery shall be made unless and until the
person requesting such issue or delivery has paid to the
corporation the amount of any such tax or has established, to the
satisfaction of the corporation, that such tax has been paid.
The corporation extends no protection with respect to any other
taxes imposed in connection with such redemption or conversion of
shares of this Series.
10. No Other Rights. The shares of this Series shall
not have any relative, participating, optional or other special
rights and powers other than as set forth herein and other than
any which may be provided by law.
11. Miscellaneous. Capitalized terms which are
defined in this Exhibit are defined only for the purposes of this
Exhibit, and not for the purposes of other Exhibits to the
certificate of incorporation. Unless otherwise indicated,
section references contained in this Exhibit refer to the
corresponding sections of this Exhibit.