CERTIFICATE OF DESIGNATION
OF
CLASS C CONVERTIBLE PREFERRED STOCK
OF
CLEARVIEW CINEMA GROUP, INC.
Pursuant to Section 151 of the
Delaware General Corporation Law
Clearview Cinema Group, Inc., a corporation organized and existing
under the laws of the State of Delaware (the "CORPORATION"), hereby certifies
that the following resolutions were adopted by the Board of Directors of the
Corporation pursuant to authority of the Board of Directors as required by
Section 151 of the Delaware General Corporation Law.
RESOLVED, that pursuant to the authority granted to the Board of
Directors in accordance with the provisions of the Corporation's Certificate of
Incorporation, the Board of Directors hereby authorizes a series of the
Corporation's previously authorized Preferred Stock, par value $.01 per share
(the "PREFERRED STOCK"), to be issued pursuant to a Securities Purchase
Agreement between the Corporation and the Purchaser named therein (the
"SECURITIES PURCHASE AGREEMENT"), and hereby states the designation and number
of shares, and fixes the relative rights, preferences, privileges and
restrictions thereof as follows:
1. DESIGNATION AND AMOUNT.
The designation of this series, which consists of three thousand
(3,000) shares (the "PREFERRED SHARES") of Preferred Stock, is the Class C
Convertible Preferred Stock (the "CLASS C PREFERRED STOCK") and the face amount
shall be One Thousand Dollars ($1,000) per share (the "STATED VALUE").
2. DIVIDENDS.
(a) DIVIDEND RATE; PAYMENTS. The holder (the "HOLDER") of Preferred
Shares shall be entitled to receive, to the extent permitted by applicable law,
subject to the prior, full payment of any accumulated and unpaid dividends on
any class or series of Senior Securities (as defined below) and in preference to
the payment of any dividend on any class or series of Junior Securities (as
defined below), cumulative dividends ("DIVIDENDS") on each Preferred Share in an
amount equal to, on an annualized basis, the Stated Value of such Preferred
Share TIMES five percent (5%). Dividends shall accrue, whether or not earned or
declared, on each Preferred Share from the date of the original issuance thereof
(the "ISSUE DATE") through the earlier to occur of (A) the Maturity
Date (as defined below) and (B) the redemption or conversion thereof in
accordance with the terms hereof. Accrued Dividends on a Preferred Share shall
be payable on each Conversion Date (as defined below) and on the Maturity Date
(as defined below) for such Preferred Share (each, a "DIVIDEND PAYMENT DATE").
If, on any date, Dividends on any outstanding Preferred Shares have not been
paid or declared by the Board of Directors in accordance with applicable law and
set aside for payment with respect to all Dividend Payment Dates preceding such
date, the aggregate amount of such Dividends shall be fully paid or declared and
set aside for payment before any distribution, whether by way of dividend or
otherwise, shall be declared, paid or set apart with respect to any Junior
Securities on or after such date. Dividends shall be paid either in cash or, at
the option of the Corporation (the "STOCK PAYMENT OPTION"), and subject to the
satisfaction of the conditions set forth in paragraph (b) below (the "STOCK
PAYMENT CONDITIONS"), in whole or in part in shares (the "DIVIDEND PAYMENT
SHARES") of the Corporation's Common Stock (the "COMMON STOCK"). Cash Dividends
shall be paid to the Holder within five (5) Business Days following the
applicable Dividend Payment Date by delivering immediately available funds to
the Holder in accordance with the Holder's wiring instructions. Any amount of
Dividends payable in cash which is not paid within five (5) Business Days of the
applicable Dividend Payment Date shall bear interest at an annual rate equal to
the lower of (x) the "prime" rate (as published in the Wall Street Journal) on
such fifth Business Day PLUS three percent (3%) and (y) the highest rate
permitted by applicable law, for the number of days elapsed from such Dividend
Payment Date until such amount is paid in full (the "DEFAULT INTEREST RATE").
(b) CONDITIONS TO STOCK PAYMENT OPTION. If the Corporation wishes to
exercise the Stock Payment Option, it may do so only if each of the following
conditions has been satisfied as of the relevant Conversion Date:
(i) the number of shares of Common Stock authorized, unissued
and unreserved for all other purposes, or held in the Corporation's treasury, is
sufficient to pay 125% of the aggregate number of (x) Conversion Shares issuable
upon the conversion in full of the Preferred Shares and (y) the number of
Dividend Payment Shares issuable pursuant to such option;
(ii) the Dividend Payment Shares are listed for trading on the
American Stock Exchange ("AMEX"), the New York Stock Exchange ("NYSE") or the
Nasdaq National Market System ("NMS") and trading in the Common Stock has not
been suspended by such exchange;
(iii) the registration statement (the "REGISTRATION
STATEMENT") described in the Registration Rights Agreement between the
Corporation and the Purchaser (the "REGISTRATION RIGHTS AGREEMENT", or another
registration statement with respect to which the Corporation has granted
"piggyback" rights to the Holder under the Registration Rights Agreement, is
effective and available for the sale of the Dividend Payment Shares by the
Holder or such shares may be sold to the public pursuant to Rule 144(k) under
the Securities Act of 1933, as amended (the "SECURITIES ACT");
(iv) a Mandatory Redemption Event (as defined herein) has
not occurred and is not continuing; and
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(v) the Corporation has delivered to the Holder a certificate,
signed by an executive officer of the Corporation, setting forth:
o the amount of the Dividend to which the
Holder is entitled and, if not the same,
the amount of such payment to be made in
Dividend Payment Shares;
o the number of Dividend Payment Shares to
be delivered in payment of such
Dividends, and the calculation therefor;
and
o a statement to the effect that all of
the conditions set forth in
sub-paragraphs i-iv above have been
satisfied.
(c) EXERCISE OF STOCK PAYMENT OPTION. In order for the Corporation to
exercise the Stock Payment Option, it must deliver written notice thereof (a
"STOCK PAYMENT EXERCISE NOTICE") to the Holder on or before the tenth (10th)
Business Day prior to the Initial Conversion Date (as defined below) and on or
before the tenth (10th) Business Day prior to the first day of each calendar
quarter thereafter specifying whether the Corporation intends to pay Dividends
during such calendar quarter (or shorter period in the case of the notice
delivered prior to the Initial Conversion Date) in Dividend Payment Shares or
cash. Upon delivering a Stock Payment Exercise Notice to the Holder, the
Corporation thereafter shall be irrevocably bound by its election made therein
to deliver Dividend Payment Shares or cash, as the case may be, during the
period to which such notice relates.
(d) DELIVERY OF DIVIDEND PAYMENT SHARES. Upon exercise of the Stock
Payment Option, the Corporation shall deliver to the Holder, on or before the
third (3rd) Business Day following the applicable Dividend Payment Date (the
"DIVIDEND PAYMENT SHARE DELIVERY DATE"), the aggregate number of whole Dividend
Payment Shares that is determined by dividing (x) the amount of the Dividend to
which the Holder is entitled as of such Dividend Payment Date with respect to
the Preferred Shares being converted or redeemed by (y) the applicable
Conversion Price (as defined below) on such Dividend Payment Date. The
Corporation shall effect delivery of Dividend Payment Shares to the Holder by,
as long as the Corporation's transfer agent ("TRANSFER AGENT") is participating
in the Depository Trust Company ("DTC") Fast Automated Securities Transfer
program ("FAST"), crediting the account of the Holder or its nominee at DTC with
the number of Dividend Payment Shares required to be delivered, no later than
the close of business on such Dividend Payment Share Delivery Date. In the event
that the condition specified above with respect to the Transfer Agent's
participation in FAST is not satisfied as of the applicable Dividend Payment
Share Delivery Date, or if the Holder specifies in the applicable Conversion
Notice (as defined below) or otherwise notifies the Corporation in writing prior
to the applicable Dividend Payment Date that the Holder wishes to receive
physical certificates, the Corporation shall effect delivery of Dividend Payment
Shares by delivering to the Holder or its nominee physical certificates
representing such Dividend Payment Shares, no later than the close of business
on such Dividend Payment Share Delivery Date. No fractional Dividend Payment
Shares shall be issued; the Corporation shall, in lieu thereof, either issue a
number of Dividend Payment Shares which reflects
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a rounding up to the next whole number of shares or pay such amount in cash.
Dividend Payment Shares shall be fully paid and non-assessable, free and clear
of any liens, claims, preemptive rights or encumbrances imposed by or through
the Corporation.
(e) FAILURE TO DELIVER DIVIDEND PAYMENT SHARES. In the event that the
Corporation fails for any reason to deliver to the Holder certificates
representing the appropriate number of Dividend Payment Shares on or before the
Dividend Payment Share Delivery Date therefor, and such failure continues for
five (5) Business Days following the Dividend Payment Share Delivery Date, the
Corporation shall pay to the Holder payments in the amount of (i) (N/365)
MULTIPLIED BY (ii) the amount of such Dividend MULTIPLIED BY (iii) the lower of
twenty-four percent (24%) and the maximum rate permitted by applicable law,
where "N" equals the number of days elapsed between the original Dividend
Payment Share Delivery Date for such Dividend Payment Shares and the date on
which all of the certificates representing such Dividend Payment Shares are
issued and delivered to the Holder. Amounts payable under this subparagraph (e)
shall be paid to the Holder in immediately available funds on or before the
fifth (5th) Business Day of the calendar month immediately following the
calendar month in which such amounts have accrued. The Holder shall have the
right to pursue actual damages for the Corporation's failure to issue and
deliver Dividend Payment Shares on the Dividend Payment Share Delivery Date for
a Dividend, including, without limitation, damages relating to any purchase of
shares of Common Stock by the Holder to make delivery on a sale effected in
anticipation of receiving Dividend Payment Shares, such damages to be in an
amount equal to (A) the aggregate amount paid by the Holder for the shares of
Common Stock so purchased MINUS (B) the aggregate amount of net proceeds, if
any, received by the Holder from the sale of the Dividend Payment Shares issued
by the Corporation with respect to such Dividend, and the Holder shall have the
right to pursue all other remedies available to it at law or in equity
(including, without limitation, a decree of specific performance and/or
injunctive relief).
3. PRIORITY.
(a) PAYMENT UPON DISSOLUTION.
(i) Upon the occurrence of (x) any insolvency or bankruptcy
proceedings, or any receivership, liquidation, reorganization or other similar
proceedings in connection therewith, commenced by the Corporation or by its
creditors, as such, or relating to its assets or (y) the dissolution or other
winding up of the Corporation whether total or partial, whether voluntary or
involuntary and whether or not involving insolvency or bankruptcy proceedings,
or (z) any assignment for the benefit of creditors or any marshalling of the
material assets or material liabilities of the Corporation (each, a "LIQUIDATION
EVENT"), no distribution shall be made to the holders of any shares of Junior
Securities (as defined below) unless, following the payment of preferential
amounts on all Senior Securities (as defined below), the Holder shall have
received the Liquidation Preference (as defined below) with respect to each
Preferred Share then held by the Holder. In the event that upon the occurrence
of a Liquidation Event, and following the payment of preferential amounts on all
Senior Securities (as defined below), the assets available for distribution to
the Holder and the holders of Pari Passu Securities are insufficient to pay the
Liquidation Preference with respect to all of the outstanding Preferred Shares
and the preferential
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amounts payable to such holders, the entire assets of the Corporation shall be
distributed ratably among the Preferred Shares and the shares of Pari Passu
Securities in proportion to the ratio that the preferential amount payable on
each such share (which shall be the Liquidation Preference in the case of a
Preferred Share) bears to the aggregate preferential amount payable on all such
shares.
(ii) The "LIQUIDATION PREFERENCE" with respect to a Preferred
Share shall mean an amount equal to the Stated Value of such Preferred Share
(subject to ratable adjustment in the event of any stock split or combination of
the Class C Preferred Stock and to equitable adjustment in the event of a
reclassification of the Class C Preferred Stock or other similar event) plus any
accrued and unpaid Dividends thereon. "JUNIOR SECURITIES" shall mean the Common
Stock and all other capital stock of the Corporation that are not Pari Passu
Securities or do not have a preference over the Class C Preferred Stock in
respect of dividends, redemption or distribution upon liquidation. "PARI PASSU
SECURITIES" shall mean the Class A Convertible Preferred Stock of the
Corporation (the "Class A Preferred Stock") and any other securities ranking
pari passu with the Class C Preferred Stock in respect of dividends, redemption
or distribution upon liquidation. "SENIOR SECURITIES" shall mean the Class B
Nonvoting Cumulative Redeemable Preferred Stock of the Corporation (the "CLASS B
PREFERRED STOCK"), any debt instrument of the Corporation and any securities of
the Corporation which by their terms have a preference over the Class C
Preferred Stock in respect of dividends, redemption or distribution upon
liquidation.
4. CONVERSION.
(a) RIGHT TO CONVERT. The Holder shall have the right to convert, at
any time after the earlier to occur of (i) the ninetieth (90th) day following
the Issue Date and (ii) the date on which the Registration Statement has been
declared effective (the "INITIAL CONVERSION DATE"), all or any part of the
Preferred Shares held by the Holder into such number of fully paid and
non-assessable shares of Common Stock ("CONVERSION SHARES") as is computed in
accordance with the terms hereof (a "CONVERSION").
(b) CONVERSION NOTICE. In order to convert Preferred Shares, the Holder
shall send by facsimile transmission, at any time prior to 11:59 p.m., eastern
time, on the date on which the Holder wishes to effect such Conversion (the
"CONVERSION DATE"), (i) a notice of conversion (a "CONVERSION NOTICE"), in
substantially the form of Exhibit A hereto, to the Corporation and to the
Transfer Agent stating the number of Preferred Shares to be converted, the
applicable Conversion Price (as defined below) and a calculation of the number
of shares of Common Stock issuable upon such Conversion and (ii) a copy of the
certificate or certificates representing the Preferred Shares being converted.
The Holder shall promptly thereafter send the original of the Conversion Notice
and of such certificate or certificates to the Transfer Agent. The Corporation
shall issue a new certificate for Preferred Shares in the event that less than
all of the Preferred Shares represented by a certificate delivered to the
Corporation in connection with a Conversion are converted. Except as otherwise
provided herein, upon delivery of a Conversion Notice by the Holder in
accordance with the terms hereof, the Holder shall, as of the applicable
Conversion Date, be deemed for all purposes to be record owner of the Common
Stock to which such Conversion Notice relates. In the case of a dispute between
the Corporation and the Holder as to the calculation of the Conversion
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Price or the number of Conversion Shares issuable upon a Conversion, the
Corporation shall promptly issue to the Holder the number of Conversion Shares
that are not disputed and shall submit the disputed calculations to its
independent accountant within two (2) Business Days of receipt of the Holder's
Conversion Notice. The Corporation shall cause such accountant to calculate the
Conversion Price as provided herein and to notify the Corporation and the Holder
of the results in writing no later than three (3) Business Days following the
day on which it received the disputed calculations. Such accountant's
calculation shall be deemed conclusive absent manifest error. The fees of any
such accountant shall be borne by the party whose calculations were most at
variance with those of such accountant.
(c) NUMBER OF CONVERSION SHARES; CONVERSION PRICE. The number of
Conversion Shares to be delivered by the Corporation pursuant to a Conversion
shall be determined by dividing the aggregate Stated Value of the Preferred
Shares to be converted by the Conversion Price (as defined herein) in effect on
the applicable Conversion Date. Subject to adjustment as provided in Section 6
below, "CONVERSION PRICE" with respect to a Preferred Share shall mean the
lesser of (i) $21.95 (the "FIXED CONVERSION PRICE") and (ii) eighty seven and
one half percent (87.5%) of the average of the fourth, fifth and sixth lowest
Closing Trade Prices for the Common Stock during the period of twenty (20)
Trading Days occurring immediately prior to (but not including) the applicable
Conversion Date (the "FLOATING CONVERSION PRICE").
(d) CERTAIN DEFINITIONS. "TRADING DAY" means any day on which the
Common Stock is traded on the AMEX or on the principal securities exchange or
market on which the Common Stock is then traded. "CLOSING TRADE PRICE" means,
with respect to the Common Stock, the last sale price for the Common Stock
occurring on a given Trading Day on the AMEX or on the principal securities
exchange or trading market where such security is listed or traded as reported
by Bloomberg Financial Markets or, if Bloomberg Financial Markets is not then
reporting such sales, by a comparable reporting service of national reputation
selected by the Corporation and reasonably acceptable to the Holder
(collectively, "BLOOMBERG") or, if a sale is not so reported on a Trading Day,
the average of the bid and asked prices of such security on the principal
securities exchange or trading market where such security is listed or traded as
reported by Bloomberg or if the foregoing does not apply, the average of the
last reported bid and asked prices of such security in the over-the-counter
market on the electronic bulletin board for such security as reported by
Bloomberg, or, if no such prices are reported for such security by Bloomberg,
the average of the bid and asked prices of all market makers for such security
as reported in the "pink sheets" by the National Quotation Bureau, Inc. If the
Closing Trade Price cannot be calculated for such security on any of the
foregoing bases, the Closing Trade Price of such security shall be the fair
market value as reasonably determined by an investment banking firm selected by
the Holder (which may be an affiliate of the Holder) and reasonably acceptable
to the Corporation, with the costs of such appraisal to be borne by the
Corporation. "BUSINESS DAY" means any day on which the New York Stock Exchange
and commercial banks located in the City of New York are open for business.
(e) DELIVERY OF COMMON STOCK UPON CONVERSION. Upon receipt of a
Conversion Notice from the Holder pursuant to paragraph 4(b) above, the
Corporation shall, no later than the close of business on the later of (i) the
third (3rd) Business Day following the Conversion Date set forth
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in such Conversion Notice and (ii) the date on which the certificate(s)
representing the Preferred Shares being converted are delivered to the
Corporation or the Transfer Agent by the Holder (the "DELIVERY DATE"), issue and
deliver or cause to be delivered to the Holder the number of Conversion Shares
as shall be determined as provided herein. The Corporation shall effect delivery
of Conversion Shares to the Holder by, as long as the Transfer Agent is
participating in FAST, crediting the account of the Holder or its nominee at DTC
with the number of Conversion Shares required to be delivered, no later than the
close of business on such Delivery Date. In the event that Transfer Agent is not
a participant in FAST or if the Holder so specifies in a Conversion Notice or
otherwise in writing prior to the Conversion Date, the Corporation shall effect
delivery of Conversion Shares by delivering to the Holder or its nominee
physical certificates representing such Conversion Shares, no later than the
close of business on such Delivery Date. If any Conversion would create a
fractional Conversion Share, such fractional Conversion Share shall be
disregarded and the number of Conversion Shares issuable upon such Conversion,
in the aggregate, shall be the next higher number of Conversion Shares.
Conversion Shares and Dividend Payment Shares delivered to the Holder shall not
contain any restrictive legend as long as (A) the sale or transfer of such
Conversion Shares is covered by an effective Registration Statement, (B) such
Conversion Shares can be sold pursuant to Rule 144 ("RULE 144") under the
Securities Act and a registered broker dealer provides to the Corporation a
customary broker's Rule 144 letter and such Purchaser delivers to the
Corporation a customary seller's representation letter (including, without
limitation, a representation of the Holder's present intention to sell such
shares), or (C) such Conversion Shares are eligible for resale under Rule 144(k)
or any successor rule or provision.
(f) FAILURE TO DELIVER CONVERSION SHARES.
(i) In the event that the Corporation fails for any reason
(other than by operation of Section 5(b) below) to deliver to the Holder
certificates representing the number of Conversion Shares specified in the
applicable Conversion Notice on or before the Delivery Date therefor (a
"CONVERSION DEFAULT"), and such failure continues for five (5) Business Days
following the Delivery Date, the Corporation shall pay to the Holder payments
("CONVERSION DEFAULT PAYMENTS") in the amount of (i) (N/365) MULTIPLIED BY (ii)
the aggregate Liquidation Preference of the Preferred Shares represented by the
Conversion Shares which remain the subject of such Conversion Default MULTIPLIED
BY (iii) the lower of twenty-four percent (24%) and the maximum rate permitted
by applicable law, where "N" equals the number of days elapsed between the
original Delivery Date for such Conversion Shares and the earlier to occur of
(A) the date on which all of the certificates representing such Conversion
Shares are issued and delivered to the Holder, (B) the date on which such
Preferred Shares are redeemed pursuant to the terms hereof and (C) the date on
which a Withdrawal Notice (as defined below) is delivered to the Corporation.
Amounts payable under this subparagraph (f) shall be paid to the Holder in
immediately available funds on or before the fifth (5th) Business Day of the
calendar month immediately following the calendar month in which such amounts
have accrued.
(ii) In the event that the Holder has not received
certificates representing the Conversion Shares by the tenth (10th) Business Day
following a Conversion Default, the Holder may, upon written notice (a
"WITHDRAWAL NOTICE") delivered to the Corporation on such Business
7
Day or on any Business Day thereafter (unless, prior to the delivery of such
notice, such Conversion Shares are delivered to the Holder), withdraw its
Conversion Notice with respect to such Conversion Shares and regain its rights
as the Holder of the Preferred Shares that are the subject of such Conversion
Default. Upon delivery by the Holder of a Withdrawal Notice, the Holder shall
retain all of the Holder's rights and remedies with respect to the Corporation's
failure to deliver such Conversion Shares (including without limitation the
right to receive the cash payments specified in subparagraph 4(f)(i) above).
(iii) Nothing herein shall limit the Holder's right to pursue
actual damages for the Corporation's failure to issue and deliver Conversion
Shares on the applicable Delivery Date (including, without limitation, damages
relating to any purchase of shares of Common Stock by the Holder to make
delivery on a sale effected in anticipation of receiving Conversion Shares upon
Conversion, such damages to be in an amount equal to (A) the aggregate amount
paid by the Holder for the shares of Common Stock so purchased MINUS (B) the
aggregate amount of net proceeds, if any, received by the Holder from the sale
of the Conversion Shares issued by the Corporation pursuant to such Conversion),
and the Holder shall have the right to pursue all remedies available to it at
law or in equity (including, without limitation, a decree of specific
performance and/or injunctive relief).
(g) CONVERSION AT MATURITY. On the date which is two (2) years
following the Issue Date (the "MATURITY DATE"), each Preferred Share then
outstanding shall be automatically converted into the number of shares of Common
Stock equal to the Stated Value of such shares DIVIDED BY the Conversion Price
then in effect (a "MANDATORY CONVERSION"); provided, however, that if, on the
Maturity Date, (i) the number of shares of Common Stock authorized, unissued and
unreserved for all other purposes, or held in the Corporation's treasury, is not
sufficient to effect the issuance and delivery of the number of Conversion
Shares into which all outstanding Preferred Shares are then convertible, (ii)
the Common Stock is not listed for trading on the AMEX, the NYSE, or NMS or
(iii) a Mandatory Redemption Event (as defined herein) has occurred and is
continuing, the Holder shall have the option, upon written notice to the
Corporation at any time prior to the date on which the Holder's Preferred Shares
are redeemed pursuant to the terms hereof, to regain its rights as a holder of
Preferred Shares, including without limitation, the right to convert such
Preferred Shares in accordance with the terms of paragraphs 4(a) through 4(f)
hereof and, upon delivery of such notice, such Preferred Shares shall not be
subject to a Mandatory Conversion hereunder until the thirtieth (30th) day
following the later of (a) the date on which the event specified (i), (ii) or
(iii) is no longer continuing and (b) the date on which the Corporation delivers
to the Holder written notice to such effect, and in such event, such thirtieth
day shall be deemed to be the Maturity Date for purposes of this Certificate of
Designation. If a Mandatory Conversion occurs, the Corporation and the Holder
shall follow the procedures for Conversion set forth in this Section 4, with the
Maturity Date deemed to be the Conversion Date, except that the Holder shall not
be required to send a Conversion Notice as contemplated by paragraph 4(b).
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5. CONVERSION LIMITATIONS.
In no event shall the Holder be permitted to convert any Preferred
Shares in excess of the number of such shares, upon the Conversion of which:
(a) the number of Conversion Shares to be issued pursuant to such
Conversion, when added to the number of shares of Common Stock issued pursuant
to all prior Conversions of Preferred Shares and issuances of Dividend Payment
Shares would exceed 19.99% of the number of outstanding shares of Common Stock
on the Closing Date (subject to equitable adjustments from time to time for the
events described in Section 6 below) (the "CAP AMOUNT"), except that such
limitation shall not apply in the event that (i) the Corporation obtains the
requisite approval of its stockholders for issuances of Common Stock in excess
of such amount (it being understood that (A) the Holder, upon converting
Preferred Shares into a number of Conversion Shares which equals or exceeds
seventy five percent (75%) of the Cap Amount (as defined below), shall have the
right to require the Corporation, upon written notice to such effect, to seek
such approval by means of a special meeting of stockholders promptly, but in any
case (i) within sixty (60) days following the Corporation's receipt of such
notice or (ii) if earlier, the second (2d) Business Day following the
Corporation's receipt of notice from the Securities and Exchange Commission (the
"COMMISSION") that the Commission has no comments or no further comments to the
Corporation's related proxy statement, and (B) if the Holder has not requested
such approval at such special meeting prior to the date on which the Corporation
has delivered a proxy statement to its stockholders with respect to the
Corporation's 1999 annual meeting of stockholders, the Holder shall have the
right to require the Corporation, upon written notice to such effect, to seek
such approval at such annual meeting) and to recommend such approval to its
stockholders or (ii) the Holder obtains an opinion of counsel reasonably
satisfactory to the Corporation that such approval is not required. Until such
approval or opinion is obtained, the Holder shall not be issued, upon Conversion
of the Preferred Shares, Conversion Shares in an amount greater than the Cap
Amount; and
(b) (x) the number of shares of Common Stock beneficially owned by the
Holder (other than shares of Common Stock issuable upon conversion of such
Preferred Shares or which would otherwise be deemed beneficially owned except
for being subject to a limitation on conversion or exercise analogous to the
limitation contained in this subparagraph (b)) PLUS (y) the number of shares of
Common Stock issuable upon the Conversion of such Preferred Shares, would be
equal to or exceed (z) 4.99% of the number of shares of Common Stock then issued
and outstanding. As used herein, beneficial ownership shall be determined in
accordance with Section 13(d) of the Securities Exchange Act of 1934, as
amended, and the rules thereunder. To the extent that the limitation contained
in this paragraph 5(b) applies, the determination of whether Preferred Shares
are convertible (in relation to other securities owned by the Holder) and of
which Preferred Shares are convertible shall be in the sole discretion of the
Holder, and the submission of Preferred Shares for Conversion by the Holder as
provided herein shall be deemed to be the Holder's determination that such
Preferred Shares are convertible pursuant to the terms hereof, and the
Corporation shall have no obligation whatsoever to verify or confirm the
accuracy of such determination. This paragraph may be amended (i) in order to
clarify an ambiguity or otherwise to give effect to such limitation, by the
Holder and the Corporation and (ii) for any other reason, with the further
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requisite approval of the Corporation's stockholders. Nothing contained herein
shall be deemed to restrict the right of the Holder to convert Preferred Shares
at such time as the Conversion thereof will not violate the provisions of this
subparagraph 5(b). The restriction contained in this subparagraph 5(b) shall not
apply in the event of a Mandatory Conversion.
6. ADJUSTMENTS TO CONVERSION PRICE.
(a) ADJUSTMENT TO FIXED CONVERSION PRICE DUE TO STOCK SPLIT, STOCK
DIVIDEND, ETC. If, prior to the Conversion of all of the Preferred Shares, (A)
the number of outstanding shares of Common Stock is increased by a stock split,
a stock dividend on the Common Stock, a reclassification of the Common Stock,
the distribution to holders of Common Stock of rights or warrants entitling them
to subscribe for or purchase Common Stock at less than the then current market
price thereof (based upon the subscription or exercise price of such rights or
warrants at the time of the issuance thereof) or other similar event, the Fixed
Conversion Price shall be proportionately reduced, or (B) the number of
outstanding shares of Common Stock is decreased by a reverse stock split,
combination or reclassification of shares or other similar event, the Fixed
Conversion Price shall be proportionately increased. In such event, the
Corporation shall notify the Transfer Agent of such change on or before the
effective date thereof. For purposes hereof, the market price per share of
Common Stock on any date shall be the average Closing Trade Price for the Common
Stock on the five (5) consecutive Trading Days occurring immediately prior to
but not including the earlier of such date and the Trading Day before the "ex"
date, if any, with respect to the issuance or distribution requiring such
computation. The term "'ex' date", when used with respect to any issuance or
distribution, means the first Trading Day on which the Common Stock trades
regular way in the market from which such average Closing Trade Price is then to
be determined without the right to receive such issuance or distribution.
(b) ADJUSTMENT TO CONVERSION PRICE DURING REFERENCE PERIOD. If, prior
to the Conversion of all of the Preferred Shares, the number of outstanding
shares of Common Stock is increased or decreased by a stock split, a stock
dividend on the Common Stock, a combination, a reclassification of the Common
Stock or other similar event, and such event takes place during the reference
period for the determination of the Conversion Price for any Conversion thereof,
the Conversion Price shall be calculated giving appropriate effect to the stock
split, stock dividend, combination, reclassification or other similar event for
all Trading Days occurring during such reference period.
(c) ADJUSTMENT DUE TO MERGER, CONSOLIDATION, ETC. If, prior to the
Conversion of all of the Preferred Shares, there shall be any merger,
consolidation, business combination, tender offer, exchange of shares,
recapitalization, reorganization, redemption or other similar event, as a result
of which shares of Common Stock shall be changed into the same or a different
number of shares of the same or another class or classes of stock or securities
of the Corporation or another entity (an "EXCHANGE TRANSACTION"), then the
Holder shall (A) upon the consummation of such Exchange Transaction, have the
right to receive, with respect to any shares of Common Stock then held by the
Holder, or which the Holder is then entitled to receive pursuant to a Conversion
Notice previously delivered by the Holder as provided herein (and without regard
to whether such shares
10
contain a restrictive legend or are freely-tradeable), the same amount and type
of consideration (including without limitation, stock, securities and/or other
assets) and on the same terms as a holder of shares of Common Stock would be
entitled to receive in connection with the consummation of such Exchange
Transaction (the "EXCHANGE CONSIDERATION"), and (B) upon the Conversion of
Preferred Shares occurring subsequent to the consummation of such Exchange
Transaction, have the right to receive the Exchange Consideration which the
Holder would have been entitled to receive in connection with such Exchange
Transaction had such shares been converted immediately prior to such Exchange
Transaction, and in any such case appropriate provisions shall be made with
respect to the rights and interests of the Holder to the end that the provisions
hereof (including, without limitation, provisions for the adjustment of the
Conversion Price and of the number of shares issuable upon a Conversion) shall
thereafter be applicable as nearly as may be practicable in relation to any
securities thereafter deliverable upon the Conversion of such Preferred Shares.
The Corporation shall not effect any Exchange Transaction unless (i) it first
gives to the Holder twenty (20) days prior written notice of such Exchange
Transaction (an "EXCHANGE NOTICE"), and makes a public announcement of such
event at the same time that it gives such notice and (ii) the resulting
successor or acquiring entity (if not the Corporation) assumes by written
instrument the obligations of the Corporation hereunder, including the terms of
this subparagraph 6(c), and under the Securities Purchase Agreement and the
Registration Rights Agreement.
(d) DISTRIBUTION OF ASSETS. If the Corporation or any of its
subsidiaries shall declare or make any distribution of cash, evidences of
indebtedness or other securities or assets (other than cash dividends or
distributions payable out of earned surplus or net profits for the current or
the immediately preceding year), or any rights to acquire any of the foregoing,
to holders of Common Stock (or to a holder of the common stock of any such
subsidiary, other than the Corporation or any wholly-owned subsidiary of the
Corporation) as a partial liquidating dividend, by way of return of capital or
otherwise, including any dividend or distribution in shares of capital stock of
a subsidiary of the Corporation (collectively, a "DISTRIBUTION"), then, upon a
Conversion by the Holder occurring after the record date for determining
stockholders entitled to such Distribution, the Fixed Conversion Price for
Preferred Shares not converted prior to the record date of a Distribution shall
be reduced to a price determined by decreasing the Fixed Conversion Price in
effect immediately prior to the record date of the Distribution by an amount
equal to the fair market value of the assets so distributed with respect to each
share of Common Stock, such fair market value to be determined by an investment
banking firm selected by the Holder and reasonably acceptable to the
Corporation.
(e) ADJUSTMENT DUE TO MAJOR ANNOUNCEMENT. If the Corporation (i) makes
a public announcement that it intends to enter into a Change of Control
Transaction (as defined below) or (ii) any person, group or entity (including
the Corporation) publicly announces a tender offer, exchange offer or other
transaction to purchase 50% or more of the Common Stock (such announcement being
referred to herein as a "MAJOR ANNOUNCEMENT" and the date on which a Major
Announcement is made, the "ANNOUNCEMENT DATE"), then, in the event that the
Holder seeks to convert Preferred Shares on or following the Announcement Date,
the Conversion Price shall, effective upon the Announcement Date and continuing
through the fifth (5th) Business Day
11
following the earlier to occur of the consummation of the proposed transaction
or tender offer, exchange offer or other transaction and the Abandonment Date
(as defined below), be equal to the lower of (x) the average Closing Trade Price
for the Common Stock on the five (5) Trading Days immediately preceding (but not
including) the Announcement Date and (y) the Conversion Price in effect on the
Conversion Date for such Preferred Shares. "ABANDONMENT DATE" means with respect
to any proposed transaction or tender offer, exchange offer or other transaction
for which a public announcement as contemplated by this paragraph 6(e) has been
made, the date upon which the Corporation (in the case of clause (i) above) or
the person, group or entity (in the case of clause (ii) above) publicly
announces the termination or abandonment of the proposed transaction or tender
offer, exchange offer or another transaction which caused this paragraph 6(e) to
become operative. In the event that a Major Announcement is made prior to the
Initial Conversion Date, the Holder shall be permitted to convert the Preferred
Shares at any time following the Announcement Date. This paragraph (e) shall not
be deemed to apply to a bona fide registered public offering of the Common Stock
made otherwise than in connection with a Change of Control Transaction.
(f) ADJUSTMENT PURSUANT TO REGISTRATION RIGHTS AGREEMENT. In addition
to and without limiting in any way the adjustments provided in this Section 6,
the Conversion Price shall be adjusted as may be required by the provisions of
the Registration Rights Agreement.
(g) NO FRACTIONAL SHARES. If any adjustment under this Section would
create a fractional share of Common Stock or a right to acquire a fractional
share of Common Stock, such fractional share shall be disregarded and the number
of shares of Common Stock issuable upon Conversion shall be the next higher
number of shares or, at the option of the Corporation, shall be paid in cash in
an amount calculated by multiplying the amount of the fractional share TIMES the
Closing Trade Price used to calculate the Conversion Price for such Conversion.
7. MANDATORY REDEMPTION BY HOLDER.
(a) MANDATORY REDEMPTION. In the event that a Mandatory Redemption
Event (as defined below) occurs, the Holder shall have the right, to the extent
permitted by applicable law and subject to the rights and preferences of the
Senior Securities, to have all or any portion of the Preferred Shares held by
the Holder redeemed by the Corporation (a "MANDATORY REDEMPTION") at the
Mandatory Redemption Price (as defined herein) in same day funds. In order to
exercise its right to effect a Mandatory Redemption, the Holder must deliver a
written notice (a "MANDATORY REDEMPTION NOTICE") to the Corporation at any time
on or before the Business Day following the day on which such event is no longer
continuing; provided, however, that, in the case of subparagraph (b)(vi) below,
the following procedure shall be followed in lieu thereof: (a) no sooner than
fifteen (15) days nor later than ten (10) days prior to the Corporation's good
faith estimate of the date of the consummation of a Change of Control
Transaction (as defined below), but not prior to the public announcement of such
Change of Control Transaction, the Corporation shall deliver a written notice (a
"NOTICE OF CHANGE OF CONTROL TRANSACTION") to the Holder, and (b) within five
(5) days of delivery by the Corporation of a Notice of Change of Control
Transaction, the Holder who wishes to exercise its right to effect a Mandatory
Redemption hereunder shall deliver a Mandatory Redemption Notice to the
Corporation. The Mandatory Redemption Notice shall specify
12
the effective date of such Mandatory Redemption (the "MANDATORY REDEMPTION
DATE") and the number of such shares to be redeemed. In the event that a Change
of Control Transaction occurs and the Corporation does not deliver to the Holder
a Notice of Change of Control Transaction, the Holder may exercise its right to
a Mandatory Redemption hereunder by delivering a Mandatory Redemption Notice to
the Corporation (or to the surviving or successor entity) at any time on or
before the twentieth (20th) Business Day following such Change of Control
Transaction.
(b) MANDATORY REDEMPTION EVENT. Each of the following events shall be
deemed a "MANDATORY REDEMPTION EVENT":
(i) the Corporation fails for any reason (including without
limitation as a result of not having a sufficient number of shares of Common
Stock authorized and reserved for issuance, or as a result of the limitation
contained in Section 5(a) hereof), due to voluntary action undertaken by the
Corporation or a failure by the Corporation to take action, to issue shares of
Common Stock to the Holder and deliver certificates representing such shares to
the Holder as and when required by the provisions hereof upon Conversion of any
Preferred Shares, and such failure continues for ten (10) Business Days;
(ii) the Corporation breaches, in a material respect, due to
voluntary action undertaken by the Corporation or a failure by the Corporation
to take action, any covenant or other material term or condition of this
Certificate, the Securities Purchase Agreement, the Registration Rights
Agreement, or any other agreement, document, certificate or other instrument
delivered in connection with the transactions contemplated thereby, and such
breach continues for a period of ten (10) Business Days after written notice
thereof to the Corporation from the Holder;
(iii) any material representation or warranty made by the
Corporation in the Securities Purchase Agreement, the Registration Rights
Agreement or any other agreement, document, certificate or other instrument
delivered in connection with the transactions contemplated hereby or thereby is
inaccurate or misleading in any material respect as of the date such
representation or warranty was made due to voluntary action undertaken by the
Corporation or a failure by the Corporation to take action;
(iv) the Registration Statement is not declared effective by
the one hundred and eightieth (180th) day following the initial Issue Date
hereunder or if the Registration Statement has been declared effective by such
date and, while the effectiveness of the Registration Statement is required to
be maintained pursuant to the terms of the Registration Rights Agreement, the
effectiveness of the Registration Statement lapses for any reason (including
without limitation, the issuance of a stop order) or is unavailable to the
Holder for the sale of Conversion Shares in accordance with the terms of the
Registration Rights Agreement, and such lapse or unavailability continues for a
period of five (5) Business Days, PROVIDED that the cause of such lapse or
unavailability is not due to factors solely within the control of the Holder;
and PROVIDED, FURTHER that the failure of the Registration Statement to be
declared effective or the lapse or unavailability thereof is due to voluntary
action undertaken by the Corporation or a failure by the Corporation to take
action;
13
(v) the Common Stock is not listed on the AMEX, the NYSE, or
NMS due to any voluntary action or the failure to take action on the part of the
Corporation; and
(vi) there occurs (i) the sale, conveyance or disposition of
all or substantially all of the assets of the Corporation or any of its
subsidiaries (including without limitation the sale or other conveyance of any
common stock or other equity securities of any of the Corporation's
subsidiaries), or (ii) the effectuation of a transaction or series of related
transactions, in which more than 50% of the voting power of the Corporation is
disposed of (other than a transaction which is either (A) a bona fide registered
public offering of the Corporation's securities immediately following the
completion of which no purchaser in such offering beneficially owns more than
five percent (5%) of the number of shares of Common Stock then outstanding or
(B) a private placement of the Corporation's securities with one or more
investors each of which has been identified by the Purchaser or an affiliate of
the Purchaser to the Corporation for the purpose of investing in such
placement), or (iii) the consolidation, merger or other business combination of
the Corporation or any of its subsidiaries with or into any other entity,
immediately following which the prior stockholders of the Corporation fail to
own, directly or indirectly, at least fifty percent (50%) of the surviving
entity (a "CHANGE OF CONTROL TRANSACTION"), other than a Change of Control
Transaction which is not approved by the Board of Directors of the Corporation.
(c) MANDATORY REDEMPTION PRICE. The "MANDATORY REDEMPTION PRICE" shall
be equal to the greater of (i) Liquidation Preference of the Preferred Shares
being redeemed MULTIPLIED BY one hundred and twenty five (125%) and (ii) an
amount determined by dividing the Liquidation Preference of the Preferred Shares
being redeemed by the Conversion Price in effect on the Mandatory Redemption
Date and multiplying the resulting quotient by the average Closing Trade Price
for the Common Stock on the five (5) Trading Days immediately preceding (but not
including) the Mandatory Redemption Date.
(d) PAYMENT OF MANDATORY REDEMPTION PRICE.
(i) The Corporation shall pay the Mandatory Redemption Price
to the Holder exercising its right to redemption on the later to occur of (i)
the fifth (5th) Business Day following the Mandatory Redemption Date and (ii)
the date on which the Preferred Shares being redeemed are delivered by the
Purchaser to the Corporation for cancellation.
(ii) If Corporation fails to pay the Mandatory Redemption
Price to the Holder within five (5) Business Days of the Mandatory Redemption
Date, the Holder shall be entitled to interest thereon, from and after the
Mandatory Redemption Date until the Mandatory Redemption Price has been paid in
full, at an annual rate equal to the Default Interest Rate.
(iii) If the Corporation fails to pay the Mandatory Redemption
Price within ten (10) Business Days of the Mandatory Redemption Date, then the
Holder shall have the right at any time, so long as the Corporation remains in
default, to require the Corporation, upon written notice, to immediately issue,
in lieu of the Mandatory Redemption Price, the number of shares of Common
14
Stock of the Corporation equal to the Mandatory Redemption Price DIVIDED BY the
Conversion Price in effect on such Conversion Date as is specified by the Holder
in writing to the Corporation.
(e) MODIFICATION OF MANDATORY REDEMPTION PROVISIONS. The terms of this
Section 7 shall apply to the Class C Preferred Stock until such time, if any, as
such terms have been superseded, in whole or in part, by the terms of a
Determination Certificate (as defined below). A "DETERMINATION CERTIFICATE"
shall be a written instrument containing redemption provisions applicable to the
Class C Preferred Stock (or affirming the absence of any such provisions)
proposed by the Holder of a majority of the shares of Class C Preferred Stock at
the time outstanding and duly adopted by the Board of Directors, PROVIDED that
the approval of the Board of Directors shall be deemed to be given if the
adopting Holder furnish the Corporation with a certificate to the effect that
the Determination Certificate reflects a determination made in consultation with
the Corporation's auditors that each of the changes contemplated thereby are
necessary to qualify the Class C Preferred Stock as stockholders' equity under
generally accepted accounting principles. The Corporation shall promptly give
written notice of the adoption of any Determination Certificate to all holders
of its Class C Preferred Stock, shall refer to the existence of any
Determination Certificate in its annual financial statement and shall supply to
any stockholder upon request the full text thereof. One or more Determination
Certificates may be adopted pursuant to this paragraph. The contents of a
Determination Certificate shall be deemed to be "facts" for purposes of Section
151 of the Delaware General Corporation Law.
8. MISCELLANEOUS.
(a) TRANSFER OF PREFERRED SHARES. The Holder may sell or transfer all
(but not less than all) of the Preferred Shares to an affiliate of the Holder as
long as such sale or transfer is the subject of an effective registration
statement under the Securities Act or is exempt from registration thereunder and
otherwise is made in accordance with the terms of the Securities Purchase
Agreement. From and after the date of such sale or transfer, the transferee
thereof shall be deemed to be the Holder. Upon any such sale or transfer, the
Corporation shall, promptly following the return of the certificate or
certificates representing the Preferred Shares that are the subject of such sale
or transfer, issue and deliver to such transferee a new certificate in the name
of such transferee.
(b) NOTICES. Except as otherwise provided herein, any notice, demand or
request required or permitted to be given pursuant to the terms hereof, the form
or delivery of which notice, demand or request is not otherwise specified
herein, shall be in writing and shall be deemed given (i) when delivered
personally or by verifiable facsimile transmission on or before 5:00 p.m.,
eastern time, on a Business Day or, if such day is not a Business Day, on the
next succeeding Business Day, (ii) on the next Business Day after timely
delivery to an overnight courier and (iii) on the third Business Day after
deposit in the U.S. mail (certified or registered mail, return receipt
requested, postage prepaid), addressed to the parties as follows:
15
IF TO THE CORPORATION:
Clearview Cinema Group, Inc.
97 Main Street
Chatham, New Jersey 07928
Attn: A. Dale Mayo
Tel: 973-377-4646
Fax: 973-377-4303
WITH A COPY TO:
Kirkpatrick & Lockhart LLP
1500 Oliver Building
Pittsburgh, Pennsylvania 15222-2312
Attn: Janice C. Hartman, Esq.
Tel: 412-355-6500
Fax: 412-355-6501
and if to the Holder, to such address for the Holder as shall be designated by
the Holder in writing to the Corporation.
(c) LOST OR STOLEN CERTIFICATE. Upon receipt by the Corporation of
evidence of the loss, theft, destruction or mutilation of a certificate
representing Preferred Shares, and (in the case of loss, theft or destruction)
of indemnity or security reasonably satisfactory to the Corporation, and upon
surrender and cancellation of such certificate if mutilated, the Corporation
shall execute and deliver to the Holder a new certificate identical in all
respects to the original certificate.
(d) NO VOTING RIGHTS. Except as provided by applicable law and
paragraph 8(g) below, the Holder of the Preferred Shares shall have no voting
rights with respect to the business, management or affairs of the Corporation;
provided that the Corporation shall provide the Holder with prior notification
of each meeting of stockholders (and copies of proxy statements and other
information sent to such stockholders).
(e) REMEDIES, CHARACTERIZATION, OTHER OBLIGATIONS, BREACHES AND
INJUNCTIVE RELIEF. The remedies provided to the Holder in this Certificate of
Designation shall be cumulative and in addition to all other remedies available
to the Holder under this Certificate of Designation or under any Transaction
Document (as defined in the Securities Purchase Agreement), at law or in equity
(including without limitation a decree of specific performance and/or other
injunctive relief), no remedy contained herein shall be deemed a waiver of
compliance with the provisions giving rise to such remedy and nothing contained
herein shall limit the Holder's right to pursue actual damages for any failure
by the Corporation to comply with the terms of this Certificate of Designation.
The Corporation agrees with the Holder that there shall be no characterization
concerning this instrument other than as specifically provided herein. Amounts
set forth or provided for herein with respect to payments, conversion and the
like (and the computation thereof) shall be the amounts to be
16
received by the Holder hereof and shall not, except as expressly provided
herein, be subject to any other obligation of the Corporation (or the
performance thereof). The Corporation acknowledges that a breach by it of its
obligations hereunder will cause irreparable harm to the Holder and that the
remedy at law for any such breach may be inadequate. The Corporation agrees, in
the event of any such breach or threatened breach, the Holder shall be entitled,
in addition to all other available remedies, to an injunction restraining any
breach, without the necessity of showing economic loss and without any bond or
other security being required.
(f) FAILURE OR DELAY NOT WAIVER. No failure or delay on the part of the
Holder in the exercise of any power, right or privilege hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any such power,
right or privilege preclude other or further exercise thereof or of any other
right, power or privilege.
(g) PROTECTIVE PROVISIONS.
So long as shares of Class C Preferred Stock are outstanding,
the Corporation shall not, without first obtaining the approval of the Holder:
(i) alter or change the rights, preferences or
privileges of the Class C Preferred Stock or any other capital stock of the
Corporation so as to affect adversely the Class C Preferred Stock;
(ii) create any new class or series of capital stock
having a preference over or ranking pari passu with the Class C Preferred Stock
as to redemption, the payment of dividends or distribution of assets upon a
Liquidation Event or any other liquidation, dissolution or winding up of the
Corporation;
(iii) increase the authorized number of shares of
Preferred Stock;
(iv) re-issue any shares of Class C Preferred Stock
which have been converted in accordance with the terms hereof;
(v) issue any Pari Passu Securities or Senior
Securities (other than (i) debt securities which are not convertible into or
exchangeable for Common Stock or any other equity or convertible security of the
Corporation or (ii) pursuant to rights granted to the holders of the Class B
Preferred Stock); or
(vi) redeem, or declare, pay or make any provision for
any dividend or distribution with respect to, the Common Stock or any other
capital stock of the Corporation ranking junior to the Class C Preferred Stock
as to dividends or as to the distribution of assets upon liquidation,
dissolution or winding up of the Corporation.
17
IN WITNESS WHEREOF, the Corporation has executed this Certificate of
Designation as of the 24th day of April, 1998.
Clearview Cinema Group, Inc.
By: ___________________________________
Name: A. Dale Mayo
Title: President
18
EXHIBIT A
NOTICE OF CONVERSION
The undersigned hereby elects to convert shares of Class C Convertible Preferred
Stock (the "Preferred Stock"), represented by stock certificate No(s). ________
(the "Preferred Stock Certificates"), into shares of common stock ("Common
Stock") of Clearview Cinema Group, Inc. according to the terms and conditions of
the Certificate of Designation relating to the Preferred Stock (the "Certificate
of Designation"), as of the date written below. Capitalized terms used herein
and not otherwise defined shall have the respective meanings set forth in the
Certificate of Designation.
Date of Conversion: _________________________________
Number of Shares of
Preferred Stock to be Converted: ____________________
Applicable Conversion Price: ________________________
Number of Shares of
Common Stock to be Issued: __________________________
Name of Holder: _____________________________________
Address: _____________________________________
_____________________________________
_____________________________________
Signature: __________________________________________
Name:
Title:
HOLDER REQUESTS DELIVERY TO BE MADE: (check one)
/_/ By Delivery of Physical Certificates to the Above Address
/_/ Through Depository Trust Corporation
(Account __________________________________________)