EXHIBIT 99.2
CERTIFICATE OF DESIGNATION,
PREFERENCES AND RIGHTS OF
SERIES D CUMULATIVE CONVERTIBLE PREFERRED STOCK
OF
AMERICAN ECOLOGY CORPORATION
American Ecology Corporation, a corporation organized and existing
under the Delaware General Corporation Law, (the "Corporation") DOES HEREBY
CERTIFY:
That, effective September ___, 1995, pursuant to the authority
conferred upon the Board of Directors by the Amended and Restated Certificate of
Incorporation of the Corporation and pursuant to the provisions of Section
151(a) and other applicable provisions of the Delaware General Corporation Law,
the Board of Directors (or, as and to the extent authorized pursuant to
applicable law, a committee acting with the authority of the Board of Directors)
duly adopted, by all necessary action on the part of the Corporation, the
following resolution creating a series of 105,264 shares of preferred stock
designated as Series D Cumulative Convertible Preferred Stock;
RESOLVED, that pursuant to the authority vested in the Board of
Directors of this Corporation in accordance with the provisions of its Amended
and Restated Certificate of Incorporation, a series of preferred stock of the
Corporation be and it hereby is created, and that the designation and amount
thereof and the voting powers, preferences and relative, participating, optional
and other special rights of the shares of such series, and the qualifications,
limitations or restrictions thereof are as follows:
Series D Cumulative Convertible Preferred Stock.
1. Designation. The series shall be designated as the "Series D
Cumulative Convertible Preferred Stock" (the "Series D Preferred Stock").
2. Number. The number of shares of the Series D Preferred Stock
authorized to be issued is 105,264.
3. Dividends.
(a) The Corporation shall pay to the holders of the Series D
Preferred Stock, a mandatory cumulative dividend at an annual rate of
8.375% of the Base Liquidation Preference (as such term is defined in
Section 4 below) each year, subject only to the Corporation having
funds from which dividends may lawfully
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be paid in accordance with applicable law; provided, however, that the
Corporation shall not be obligated to pay any dividend if, as a result
of such payment, the Corporation would breach (i) any agreement or
instrument governing or evidencing the corporation's senior bank debt
as in effect (including giving effect to then applicable waivers,
forbearances, amendments, consents or other arrangements with the
lender) on the date of initial issuance of shares of the Series D
Preferred Stock (the "Initial Debt Documents") or (ii) any successor
agreement or instrument, or any modification or amendment thereto,
that is reasonably determined by the Board of Directors, acting in
good faith, to be, as of the time of effectiveness of the successor
agreement or instrument, or the modification or amendment thereto, not
more restrictive upon the payment of dividends on the Series D
Preferred Stock than the Initial Debt Documents. Dividends on the
Series D Preferred Stock shall be cumulative and shall commence to
accrue and be cumulative (whether or not declared) from the date on
which such shares shall have been issued. Such dividends shall be
mandatorily payable as stated above, in cash, in equal quarterly
payments on January 15, April 15, July 15 and October 15 of each year
(each such date being referred to herein as a "dividend payment
date"), commencing October 15, 1995, or if not paid on such dividend
payment date by reason of a prohibition against such payment pursuant
to the first sentence of this subsection (a) (a "payment
prohibition"), then promptly when and to the extent no such payment
prohibition continues to apply; provided, however, that the dividend
payable in respect of the quarter ended on the first dividend payment
date after the date on which such shares shall have been issued shall
be reduced in proportion to the portion of such quarterly period in
which such shares were not issued; and provided further, however, that
if and to the extent that, at any dividend payment date, the
Corporation shall fail to make any quarterly dividend payment on the
Series D Preferred Stock (which failure shall only be permitted to the
extent a payment prohibition applies), such unpaid dividend amount
shall accumulate without interest until paid. Such dividends shall be
paid to the Series D Preferred Stock stockholders of record on a date,
not exceeding 60 days preceding each such dividend payment date, fixed
not less than 10 days in advance for that purpose by the Board of
Directors. All full or partial dividends paid with respect to shares
of the Series D Preferred Stock, whether in cash or additional shares
of the Series D Preferred Stock or otherwise, shall be paid pro rata
to the holders entitled thereto.
(b) So long as any shares of the Series D Preferred Stock are
outstanding, unless all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series D
Preferred Stock outstanding shall have been paid in full, the
Corporation shall not:
(i) pay or declare any dividends, or make any other
distributions, on any shares of stock ranking junior to the
Series D
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Preferred Stock in respect of dividends or distribution of assets
upon any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary (a "Liquidation");
(ii) pay or declare any dividends, or make any other
distributions, on any shares of stock ranking on a parity to the
Series D Preferred Stock in respect of dividends or distribution
of assets upon Liquidation, except dividends paid ratably on the
Series D Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to the total
amounts to which the holders of all such shares are then
entitled; or
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior to the Series D
Preferred Stock in respect of dividends or distribution of assets
upon Liquidation, provided that the Corporation may at any time
redeem, purchase or otherwise acquire shares of any such junior
stock in exchange for shares of any stock of the Corporation
ranking junior to the Series D Preferred Stock in respect of
dividends or distribution of assets upon Liquidation.
Except as otherwise provided in this subsection (b), the Board of
Directors may declare and the Corporation may pay or set apart for
payment dividends and other distributions on the common stock (the
"Common Stock") and the preferred stock (the "Preferred Stock") of the
Corporation ranking junior to or on a parity with the Series D
Preferred Stock in respect of dividends or distributions of assets
upon Liquidation, and may redeem, purchase, retire or otherwise
acquire for consideration shares of Common Stock or Preferred Stock
ranking junior to or on a parity with the Series D Preferred Stock in
respect of dividends or distributions of assets upon Liquidation, and
the holders of the Series D Preferred Stock shall not be entitled to
share therein.
(c) In the event the Corporation, not being in violation of the
provisions of the preceding paragraph, shall distribute to all holders
of its Common Stock (x) evidences of indebtedness or assets and
property other than cash, (y) capital stock of the Corporation other
than Common Stock, or (z) rights to subscribe for or warrants to
purchase any security other than rights or warrants to purchase only
(i) Common Stock or (ii) units consisting of shares of Common Stock
and warrants to purchase shares of Common Stock (all of such
distributions collectively hereinafter called "Shared Distributions"),
then the holders of the Series D Preferred Stock shall participate in
such Shared Distributions as if immediately prior to the record date
for determination of stockholders entitled to receive such Shared
Distribution such holders had converted their shares of the Series D
Preferred Stock into shares of Common Stock.
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4. Liquidation Rights. In the event of the Liquidation of the
Corporation, the holders of the Series D Preferred Stock shall be entitled
to have paid to them out of the assets of the Corporation, before any
distribution is made to or set apart for the holders of Common Stock or of
any other series of Preferred Stock or any other class or series of stock
of the Corporation ranking junior to the Series D Preferred Stock in
respect of distribution of assets upon Liquidation, an amount equal to
$47.50 per share (the "Base Liquidation Preference"), plus an amount equal
to any cash dividends and Shared Distributions which have accumulated but
have not been paid on or prior to the date of final distribution to holders
of the Series D Preferred Stock (collectively, the "Aggregate Liquidation
Preference"), and no more. The liquidation payment with respect to each
outstanding fractional share of the Series D Preferred Stock shall be equal
to a ratably proportionate amount of the liquidation payment with respect
to each outstanding share of the Series D Preferred Stock.
If upon any Liquidation of the Corporation the assets of the
Corporation or proceeds thereof distributable among the holders of shares
of the Series D Preferred Stock shall be insufficient to pay in full the
preferential amounts payable to such holders, then such assets or the
proceeds thereof shall be distributed among such holders ratably in
accordance with the respective amounts that would be payable on such shares
if all amounts payable thereon were paid in full.
For purposes of this Section 4, the voluntary sale, lease, exchange or
transfer (for cash, shares of stock, securities or other consideration) of
all or substantially all of the property or assets of the Corporation to,
or a consolidation or merger of the Corporation with, one or more
corporations shall not be deemed to be a Liquidation.
5. Redemption. Shares of the Series D Preferred Stock will not be
redeemable.
6. Conversion Rights.
(a) Subject to the provisions for adjustment hereinafter set
forth, the shares of the Series D Preferred Stock may be converted, at
the option of the holder thereof, at any time or from time to time
into fully paid and nonassessable whole shares of Common Stock at rate
of 1 share of Common Stock for each $5.50 of the Aggregate Liquidation
Preference of the Series D Preferred Stock duly surrendered for
conversion, provided, however, that any right a holder of any shares
of the Series D Preferred Stock may have otherwise had for the payment
of any dividends or Shared Distributions which have accumulated or are
in arrears with respect to the shares of Series D Preferred Stock
converted hereunder shall terminate as of the date of surrender for
conversion of such shares, and such holder shall have no further
rights to the payment of such dividends or Shared Distributions.
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(b) Each holder of the Series D Preferred Stock desiring to
exercise such holder's right of conversion shall deliver written
notice of election to convert, stating the names and addresses of the
persons to whom the Common Stock is to be issued, and shall surrender
the certificate or certificates for the shares of Series D Preferred
Stock to be converted, duly endorsed or accompanied by proper
instruments of transfer (unless such endorsement or instruments are
waived by the Corporation) to the Corporation during usual business
hours at the office of the transfer agent of the Corporation for the
transfer of its Common Stock in Dallas, Texas (or such other place as
may be designated by the Corporation upon written notice to all
holders of the Series D Preferred Stock). Upon receipt by the
Corporation of any such notice of election to convert shares of the
Series D Preferred Stock, and upon surrender of the certificate or
certificates therefor, the Corporation shall execute and deliver, as
soon as practicable, to the converting holder, or to such holder's
nominee or nominees, a certificate or certificates for the number of
shares of Common Stock resulting from such conversion, together with
any cash adjustment in lieu of fractional shares as provided in
subsection (d). For all purposes, the rights of a converting holder,
as such, shall cease, and the person or persons in whose name or names
the certificate or certificates for Common Stock issuable upon such
conversion are to be issued shall be deemed to have become the record
holder or holders of such Common Stock at the close of business on the
day (the "Date of Conversion") on which delivery of such notice or the
surrender of the certificate or certificates for such shares
(whichever shall later occur) shall be made.
(c) The Corporation shall pay all issue taxes, if any, incurred
in respect to the Common Stock delivered on conversion; provided,
however, that the Corporation shall not be required to pay transfer or
other taxes, if any, incurred by reason of the issuance or delivery of
such Common Stock in names other than those in which the shares
surrendered for conversion are registered, and no delivery of
certificates registered in names other than those in which the shares
surrendered for conversion are registered, and no delivery of
certificates for such Common Stock shall be made unless and until
there has been paid to the Corporation the amount of any such taxes,
or there shall have been established to the satisfaction of the
Corporation that such taxes have been or are not required to be paid.
The Corporation shall not close its books against the transfer of
Series D Preferred Stock or of Common Stock issued or issuable upon
conversion of Series D Preferred Stock in any manner which interferes
with the timely conversion of Series D Preferred Stock. The
Corporation shall assist and cooperate with any holder of shares of
Series D Preferred Stock required to make any required governmental
filings or obtain any governmental approval prior to or in connection
with any conversion of such shares hereunder (including, without
limitation, making any filings required to be made by the
Corporation). All shares of Common Stock which are so issuable shall,
when issued, be duly and validly issued, fully paid and nonassessable
and free from all taxes, liens and
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charges. The Corporation shall take all such actions as may be
necessary to assure that all such shares of Common Stock may be so
issued without violation of any applicable law or governmental
regulation or any requirements of any domestic securities exchange
upon which shares of Common Stock may be listed (except for official
notice of issuance which shall be immediately delivered by the
Corporation upon each such issuance).
(d) The Corporation shall not be required to issue fractional
shares of Common Stock upon conversion of shares of the Series D
Preferred Stock. If more than one share of the Series D Preferred
Stock shall be surrendered for conversion at one time by the same
holder, the number of full shares of Common Stock issuable upon
conversion thereof shall be computed on the basis of the aggregate
number of shares so surrendered. If any fractional interest in a
share of Common Stock would be deliverable upon the conversion of any
shares, the Corporation shall, in lieu of delivering such fractional
share, make a cash payment, as an adjustment in respect of such
undelivered fraction of a share, in an amount equal to the same
fraction of the Current Market Price of one share of the Common Stock
on the last business day before the Date of Conversion. The "Current
Market Price" on any given day shall be: (i) if the Common Stock is
listed or admitted to unlisted trading privileges on any exchange
registered with the Securities and Exchange Commission as a "national
securities exchange" under the Securities Exchange Act of 1934 (a
"National Securities Exchange"), the last sales price of the shares of
Common Stock on the National Securities Exchange in or nearest the
City of New York on which the shares of Common Stock shall be listed
or admitted to unlisted trading privileges (or the quoted closing bid
if there be no sales on such National Securities Exchange) on the most
recently completed trading day prior to such day; or (ii) if the
Common Stock is not so listed or admitted, the closing sales price of
a share of Common Stock as quoted in The Nasdaq Stock Market on the
most recently completed trading day prior to the day in question; or
(iii) if the Common Stock is not so quoted, the mean between the high
and low bid prices of the shares of Common Stock in the over-the-
counter market on the most recently completed trading day prior to the
day in question as reported by National Quotation Bureau Incorporated
or similar organization.
(e) The number of shares of Common Stock into which each share of
the Series D Preferred Stock is convertible (the "Conversion Rate")
shall be subject to adjustment from time to time as follows:
(i) In case the Corporation shall (x) pay a dividend or make
a distribution of Common Stock on outstanding Common Stock, (y)
subdivide outstanding Common Stock into a larger number of shares
of Common Stock by reclassification or otherwise, or (z) combine
outstanding Common Stock into a smaller number of shares of
Common
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Stock by reclassification or otherwise, the Conversion Rate in
effect immediately prior thereto shall be adjusted
proportionately so that the holder of a share of the Series D
Preferred Stock thereafter surrendered for conversion shall be
entitled to receive the number of shares of the Common Stock that
such holder would have owned after the happening of any of the
events described above had such share been converted immediately
prior to the happening of such event. An adjustment made
pursuant to this subparagraph (i) shall become effective
retroactively to immediately after the record date in the case of
a share dividend or distribution and shall become effective
immediately after the effective date in the case of a subdivision
or combination.
(ii) In case of any capital reorganization or
reclassification of the shares of Common Stock (except as
provided in subparagraph (i) above), or in case of any
consolidation or merger to which the Corporation is a party
(other than a merger in which the Corporation is the surviving
corporation and which does not result in any capital
reorganization or reclassification of Common Stock), or in case
of any sale or conveyance to another corporation of all or
substantially all of the property and assets of the Corporation,
and if, in connection with any such consolidation, merger, sale
or conveyance, shares or other securities or property shall be
issuable or deliverable in exchange for shares of Common Stock,
provision shall be made as part of the terms of such capital
reorganization or reclassification, consolidation, merger, sale
or conveyance that the holder of each share of the Series D
Preferred Stock thereafter surrendered for conversion shall have
the right to convert such share into the same kind and amount of
stock and other securities and property as would have been
receivable upon such capital reorganization or reclassification,
consolidation, merger, sale or conveyance by a holder of the
number of shares of Common Stock into which such share might have
been converted immediately prior thereto. In any such case,
appropriate provision (as determined to be equitable in the
business judgment of the Board of Directors) shall be made for
the application of Section 6 with respect to the rights and
interests thereafter of the holders of the Series D Preferred
Stock to the end that such Section (including adjustments of the
Conversion Rate) shall be reflected thereafter, as nearly as
reasonably practicable, in all subsequent conversions of the
Series D Preferred Stock. The Corporation shall not effect any
such consolidation, merger or sale, unless prior to the
consummation thereof, the successor corporation (if other than
the Corporation) resulting from consolidation or merger or the
corporation purchasing such assets assumes by written instrument
(in a manner determined to be equitable in the business judgment
of the Board of Directors to the holders of the Series D
Preferred Stock then outstanding), the obligation to deliver to
each such
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holder such shares of stock, securities or assets as, in
accordance with the foregoing provisions, such holder may be
entitled to acquire.
(iii) In case the Corporation shall issue pro rata to the
holders of shares of its Common Stock rights or warrants
entitling them, during a period not exceeding 30 days after the
record date mentioned below, to subscribe for or purchase only
shares of its Common Stock at a price per share less than the
average of the Current Market Price (as defined above) of the
Common Stock for the 30 consecutive trading days commencing 45
days before such record date (the "Average Market Price"), the
number of shares of its Common Stock into which each share of the
Series D Preferred Stock shall be convertible thereafter shall be
determined by multiplying the number of shares of Common Stock
into which each such share was convertible theretofore by a
fraction, of which the numerator shall be the number of shares of
Common Stock outstanding immediately prior to such record date
plus the number of additional shares of Common Stock offered for
subscription or purchase, and of which the denominator shall be
the number of shares of Common Stock outstanding immediately
prior to such record date, plus the number of shares of Common
Stock which the aggregate offering price of the total number of
shares being offered would purchase at such Average Market Price.
Such adjustment shall be made whenever such rights or warrants
are issued and shall become retroactively effective immediately
after the record date for the determination of the stockholders
entitled to receive such rights or warrants. To the extent that
shares of Common Stock are not delivered after the expiration of
such rights or warrants, the Conversion Rate shall be readjusted
to the Conversion Rate that would then be in effect had the
adjustments made upon the issuance of such rights or warrants
been made upon the basis of delivery of only the number of shares
of Common Stock actually delivered.
(iv) In case the Corporation shall issue pro rata to the
holders of shares of its Common Stock rights or warrants to
subscribe for or purchase only (x) shares of its Common Stock
except as described in subparagraph (iii) above, or (y) units
consisting of shares of Common Stock and warrants to purchase
shares of Common Stock, the number of shares of its Common Stock
into which each share of the Series D Preferred Stock shall be
convertible thereafter shall be determined by multiplying the
number of shares of Common Stock into which each such share was
convertible theretofore by a fraction, of which the numerator
shall be the Average Market Price for a share of Common Stock
determined as of the record date mentioned below, and of which
the denominator shall be such Average Market Price less the fair
market value (as determined in the business judgment of the Board
of Directors) as of
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such record date of the rights or warrants distributed pro rata
to one of the outstanding shares of Common Stock. Such
adjustment shall be made whenever such distribution is made and
shall become retroactively effective immediately after the record
date for the determination of stockholders entitled to receive
such rights or warrants.
(v) In case the Corporation shall issue or sell any shares
(including treasury shares) of Common Stock, whether or not
subsequently reacquired or retired by the Corporation, other than
shares of Common Stock issued (x) upon exercise of warrants to
purchase shares of Common Stock issued prior to or substantially
simultaneously with the first issuance of shares of the Series D
Preferred Stock or (y) pursuant to any stock option plan or other
stock incentive or stock ownership plan for employees or
management of the Corporation ("Additional Shares of Common
Stock") for a cash purchase price that is less than the quotient
of $5.50 divided by the number of shares of Common Stock into
which each $5.50 of the Aggregate Liquidation Preference was
theretofore convertible (such quotient, the "Conversion Price"),
the number of shares of Common Stock into which each share of the
Series D Preferred Stock shall be convertible thereafter shall be
determined by multiplying the number of shares of Common Stock
into which each such share was convertible theretofore by a
fraction, of which the numerator shall be the number of shares of
Common Stock outstanding immediately after such issuance or sale,
and of which the denominator shall be the number of shares of
Common Stock outstanding immediately prior to such issuance or
sale plus the number of shares of Common Stock that the aggregate
consideration received by the Corporation for such Additional
Shares of Common Stock so issued or sold would purchase at the
Conversion Price. Such adjustment shall be made whenever any
such Additional Shares of Common Stock are so issued or sold.
The foregoing provisions for adjustment of the Conversion Rate
shall apply in each successive instance in which an adjustment is
required thereby. No adjustment in the Conversion Rate resulting from
the application of the foregoing provisions is to be given effect
unless, by making such adjustment, the Conversion Rate in effect
immediately prior to such adjustment would be changed thereby by 1% or
more, but any adjustment that would change the Conversion Rate by less
than 1% is to be carried forward and given effect in making future
adjustments; provided, however, that each adjustment of the Conversion
Rate shall in all events be made not later than three years from the
date such adjustment would have been required to be made except for
the provisions of this sentence. All calculations under this Section
6 shall be made to the nearest one-hundredth (1/100th) of a share.
Shares of Common Stock owned by or held for
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the account of the Corporation shall not be deemed to be outstanding
for the purposes of any computation made under this Section 6.
Whenever the number of shares of Common Stock deliverable upon
the conversion of shares of the Series D Preferred Stock shall be
adjusted pursuant to the provisions hereof, the Corporation shall
forthwith file at its principal office and with any transfer agent for
the Series D Preferred Stock and for the Common Stock a statement,
signed by the President or one of the Vice-Presidents of the
Corporation and by its Treasurer or one of its Assistant Treasurers,
stating the adjusted number of shares of Common Stock deliverable per
share of the Series D Preferred Stock and setting forth in reasonable
detail, the method of calculation and the facts requiring such
adjustment and upon which such calculation is based, and shall mail a
notice of such adjustment to each holder of record of the Series D
Preferred Stock. Each adjustment shall remain in effect until a
subsequent adjustment hereunder is required.
In the event:
(x) of the occurrence of any of the events referred to in
subparagraphs (i), (ii), (iii) and (iv) above; or
(y) of the Liquidation of the Corporation;
then the Corporation shall cause to be mailed to any transfer agent
for the Series D Preferred Stock and to the holders of record of the
outstanding shares of the Series D Preferred Stock at least 20 days
prior to the applicable date hereinafter specified, a notice
describing the event and stating the effect, if any, that such event
will have upon the Conversion Rate, and (A) the date on which a record
is to be taken for the purpose of a distribution referred to in
subparagraphs (i), (iii) or (iv) above, or, if a record is not to be
taken, the date as of which the holders of Common Stock of record to
be entitled to such distribution are to be determined, or (B) the date
on which any subdivision, combination or other capital reorganization
or reclassification or any consolidation, merger, sale or conveyance
referred to in subparagraphs (i) or (ii) above or such Liquidation is
expected to become effective.
The Corporation will at all times reserve and keep available for
issuance upon conversion of the Series D Preferred Stock the number of
shares of Common Stock that is equal to the number of shares of the
Series D Preferred Stock outstanding multiplied by the Conversion
Rate; provided, however, that nothing contained herein shall be
construed to preclude the Corporation from satisfying its obligations
in respect of the conversion of the outstanding shares of the Series D
Preferred Stock by delivery of shares of Common Stock that are held in
the treasury of the Corporation. The Corporation covenants that all
shares of
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Common Stock that shall be issued upon conversion of the shares of the
Series D Preferred Stock will, upon issue, be fully paid and
nonassessable and not subject to any preemptive rights.
The shares of Common Stock issuable upon conversion of the shares
of the Series D Preferred Stock when the same shall be issued in
accordance with the terms of the Series D Preferred Stock are hereby
declared to be and shall be fully paid nonassessable shares of Common
Stock and not liable to any calls or assessments thereon, and the
holders thereof shall not be liable for any further payments in
respect thereof.
"Common Stock" when used in Section 6 with reference to the
Common Stock into which the Series D Preferred Stock is convertible
and when used in Section 8 below, shall mean only Common Stock as
authorized by the Restated Certificate of Incorporation of the
Corporation, as amended to the date hereof, and any shares into which
such Common Stock may thereafter have been changed, and, when
otherwise used in Section 6 and when used in Section 3, shall also
include shares of the Corporation of any other class or series,
whether now or hereafter authorized, that ranks or is entitled to
participation, as to payment of assets upon Liquidation and payment of
dividends, substantially on a parity with such Common Stock or other
class of shares into which such Common Stock may have been changed.
The Corporation will not, by amendment of its Certificate of
Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any
other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms to be observed or performed hereunder
by the Corporation, but will at all times in good faith assist in the
carrying out of all the provisions of this Section 6 and in the taking
of all such action as may be necessary or appropriate in order to
protect the conversion privilege of the holders of the Series D
Preferred Stock against dilution or other impairment. Without
limiting the generality of the foregoing, the Corporation (1) will not
increase the par value of any shares of stock receivable upon
conversion of the Series D Preferred Stock above the Conversion Price
then in effect, and (2) will take all such actions as may be necessary
or appropriate in order that the Corporation may validly and legally
issue fully paid and nonassessable shares of stock upon the conversion
in full of all Series D Preferred Stock from time to time outstanding.
7. Voting Rights. Except as otherwise required by applicable law,
the holders of the Series D Preferred Stock shall have no voting rights or
powers.
8. Ranking. The Series D Preferred Stock shall rank senior to the
Common Stock (as defined in Section 6) and to all other series of the
Corporation's preferred stock
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as to the payment of dividends and Shared Distributions, and as to the
distribution of the Corporation's assets, unless the terms and designations
of any such series of preferred stock shall provide otherwise, provided,
however, that in no event shall the Series D Preferred Stock rank junior to
any other class or series of the Corporation's capital stock.
9. Other Rights. The holders of the Series D Preferred Stock shall
not have any other preferences or special rights.
10. Registration of Transfer. The Corporation shall keep at its
principal office a register for the registration of Series D Preferred
Stock. Upon the surrender of any certificate representing Series D
Preferred Stock at such place, the Corporation shall, at the request of the
record holder of such certificate, execute and deliver (at the
Corporation's expense) a new certificate or certificates in exchange
therefor representing in the aggregate the number of shares of Series D
Preferred Stock represented by the surrendered certificate. Each such new
certificate shall be registered in such name (upon satisfactory compliance
with all applicable securities laws) and shall represent such number of
Shares as is requested by the holder of the surrendered certificate and
shall be substantially identical in form to the surrendered certificate,
and dividends shall accrue on the Series D Preferred Stock represented by
such new certificate from the date to which dividends have been fully paid
on such Series D Preferred Stock represented by the surrendered
certificate.
11. Replacement. Upon receipt of evidence reasonably satisfactory to
the Corporation (an affidavit of the registered holder shall be
satisfactory) of the ownership and the loss, theft, destruction or
mutilation of any certificate evidencing shares of any class of Series D
Preferred Stock, and in the case of any such loss, theft or destruction,
upon receipt of indemnity reasonably satisfactory to the Corporation
(provided that the holder's own agreement shall be satisfactory), or, in
the case of any such mutilation upon surrender of such certificate, the
Corporation shall (at its expense) execute and deliver in lieu of such
certificate a new certificate of like kind representing the number of
shares of such class represented by such lost, stolen, destroyed or
mutilated certificate and dated the date of such lost, stolen, destroyed or
mutilated certificate, and dividends shall accrue on the Series D Preferred
Stock represented by such new certificate from the date to which dividends
have been fully paid on such lost, stolen, destroyed or mutilated
certificate.
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12. Amendment and Waiver. Any amendment, modification or waiver shall
be binding or effective with respect to any provision of Sections 1 to 12
hereof with the prior written consent of the holders of a majority of the
Series D Preferred Stock outstanding at the time such action is taken.
IN WITNESS WHEREOF, the undersigned officers of the Corporation have
executed and subscribed this Certificate this ____ day of September, 1995.
AMERICAN ECOLOGY CORPORATION
By: -------------------------------------
Name: -----------------------------------
Title: ----------------------------------
ATTEST:
--------------------------------------
Name: --------------------------------
Title: -------------------------------
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