EXHIBIT 4.5
CERTIFICATE OF DESIGNATIONS
OF
SERIES B CONVERTIBLE PREFERRED STOCK
($1.00 Par Value)
OF
GOODRICH AQUISITION II, INC.
___________________
Pursuant to Section 151(g) of the Delaware General Corporation Law
___________________
GOODRICH ACQUISITION II, INC., a corporation organized and existing under
the laws of the State of Delaware (the "Corporation"), HEREBY CERTIFIES that the
following resolutions were duly adopted by the Board of Directors of the
Corporation pursuant to authority conferred upon the Board of Directors by the
provisions of the Restated Certificate of Incorporation of the Corporation, as
amended (the "Certificate of Incorporation"), which authorizes the issuance of
up to 10,000,000 shares of preferred stock, $1.00 par value per share
("Preferred Stock"), by unanimous written consent of the Board of Directors on
January 30, 1997.
The Board of Directors on January 30, 1997 adopted the following resolution
authorizing the issuance of a series of preferred stock:
RESOLVED, that the issuance of a series of preferred stock, $1.00 par value
per share, which shall consist of 750,000 of the 10,000,000 shares of preferred
stock which the Corporation now has authority to issue, be, and the same hereby
is, authorized, and the powers, designations, preferences and relative
participating, optional and other special rights of the shares of such series,
and the qualifications, limitations and restrictions thereof are hereby fixed as
follows:
1. Number of Shares and Designation. Seven hundred and fifty thousand
(750,000) shares of the Preferred Stock, $1.00 par value per share, of the
Corporation are hereby constituted as a series of the preferred stock designated
as "Series B Convertible Preferred Stock."
2. Definitions. For purposes of the Series B Convertible Preferred
Stock, the following terms shall have the meanings indicated:
"Board of Directors" shall mean the Board of Directors of the
Corporation or any committee authorized by such Board of Directors to
perform any of its responsibilities with respect to the Series B
Convertible Preferred Stock.
"Business Day" shall mean any day other than a Saturday, Sunday or a
day on which banking institutions in the City of New York are authorized or
obligated by law or executive order to close.
"Closing Price" with respect to a particular security on any day shall
mean on such day the last reported sales price, regular way, for such
security or, in case no sale takes place on such day, the average of the
reported closing bid and asked prices, regular way, for such security in
either case as reported on the New York Stock Exchange, on the principal
national securities exchange on which such security is listed or admitted
to trading or, if not listed or admitted to trading on any national
securities exchange, on the National Market System of the National
Association of Securities Dealers, Inc. Automated Quotation System ("NASDAQ
National Market System") or, if such security is not quoted on the NASDAQ
National Market System, the average of the closing bid and asked prices for
such security in the over-the-counter market as reported by NASDAQ or, if
bid and asked prices for such security on each such date shall not have
been reported by NASDAQ, the average of the bid and asked prices for such
security for such day as furnished by any National Association of
Securities Dealers, Inc. ("NASD") member firm regularly making a market in
such security selected for such purpose by the board of directors or
similar governing body of the issuer of such security or, if no such
quotations are available, the fair market value of such security furnished
by any NASD member firm selected from time to time by the board of
directors or similar governing body of the issuer of such security for that
purpose.
"Common Stock" shall mean the Common Stock of the Corporation, par
value $.20 per share.
"Conversion Price" shall mean the conversion price per share of Common
Stock into which the Series B Convertible Preferred Stock is convertible,
as such Conversion Price may be adjusted pursuant to Section 7 hereof. The
initial Conversion Price will be $1.12 (equivalent to the rate of 8.92
shares of Common Stock for each share of Series B Preferred Stock).
"Current Market Price" per share of Common Stock on any date shall
mean the average of the daily Closing Prices for the 30 consecutive Trading
Dates commencing 45 Trading Dates before the date of determination.
"Defaulted Preferred Stock" shall have the meaning set forth in
paragraph (a) of Section 9 hereof.
"dividend payment date" shall have the meaning set forth in paragraph
(a) of Section 3 hereof.
"dividend payment record date" shall have the meaning set forth in
paragraph (a) of Section 3 hereof.
"Dividend Periods" shall mean quarterly dividend periods commencing on
the first day of January, April, July and October of each year and ending
on and including the day preceding the first day of the next succeeding
Dividend Period (other than the initial Dividend Period which shall
commence on the Issue Date and end on and include March 31, 1997).
"Issue Date" shall mean the first date on which shares of Series B
Preferred Stock are issued.
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"Person" shall mean any individual, firm, partnership, corporation or
other entity, and shall include any successor (by merger or otherwise) of
such entity.
"Preferred Stock" means the series of Preferred Stock of the
Corporation designated herein as the Series B Convertible Preferred Stock.
"Redemption Price" shall have the meaning set forth in paragraph (a)
of Section 5 hereof.
"Securities" shall have the meaning set forth in paragraph (d)(iii) of
Section 7 hereof.
"Trading Date" with respect to any security means (i) if such security
is listed or admitted for trading on the New York Stock Exchange or another
national securities exchange, a day on which such exchange is open for
trading, (ii) if such security is quoted on the NASDAQ National Market
System, or any similar system of automated dissemination of quotations of
securities prices, a day on which trades may be made on such system, (iii)
if not quoted as described in clause (ii), a day on which quotations are
reported by the National Quotation Bureau Incorporated or (iv) otherwise,
any Business Day.
"Transaction" shall have the meaning set forth in paragraph (e) of
Section 7 hereof.
"Transfer Agent" means Harris Trust and Savings Bank, Chicago,
Illinois or such other agent or agents of the Corporation as may be
designated by the Board of Directors as the transfer agent or conversion
agent for the Series B Preferred Stock.
3. Dividends. (a) The holders of shares of the Preferred Stock shall be
entitled to receive, when, as and if declared by the Board of Directors out of
funds legally available therefor, cumulative cash dividends at an annual rate of
$0.825 per share of Preferred Stock. Such dividends shall be cumulative from
the Issue Date, whether or not in any Dividend Period or Periods there shall be
funds of the Corporation legally available for the payment of such dividends and
whether or not such dividends are declared, and shall be payable quarterly,
when, as and if declared by the Board of Directors, on March 31, June 30,
September 30 and December 31 in each year (each a "dividend payment date"),
commencing on March 31, 1997. If any dividend payment date shall be on a day
other than a Business Day, then the dividend payment date shall be on the next
succeeding Business Day. Each such dividend shall be payable in arrears to the
holders of record of shares of the Preferred Stock, as they appear on the stock
records of the Corporation at the close of business on those dates (each such
date, a "dividend payment record date"), not less than 10 days nor more than 60
days preceding the dividend payment dates thereof, as shall be fixed by the
Board of Directors. Dividends on the Preferred Stock shall accrue (whether or
not declared) on a daily basis from the Issue Date and accrued dividends for
each Dividend Period shall accumulate to the extent not paid on the dividend
payment date first following the Dividend Period for which they accrue. As used
herein, the term "accrued" with respect to dividends includes both accrued and
accumulated dividends. Accrued and unpaid dividends for any past Dividend
Periods may be declared and paid at any time, without reference to any regular
dividend payment date, to holders of record on such date, not exceeding 45 days
preceding the payment date thereof, as may be fixed by the Board of Directors.
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(b) The amount of dividends payable for each full Dividend Period for the
Preferred Stock shall be computed by dividing the annual dividend amount by four
(rounded down to the nearest cent). The amount of dividends payable for the
initial Dividend Period on the Preferred Stock and any other period shorter or
longer than a full Dividend Period on the Preferred Stock shall be computed on
the basis of a 360-day year consisting of twelve 30-day months. Holders of
shares of Preferred Stock called for redemption on a redemption date falling
between the close of business on a dividend payment record date and the opening
of business on the corresponding dividend payment date shall, in lieu of
receiving such dividend on the dividend payment date fixed therefor, receive
such dividend payment together with all other accrued and unpaid dividends on
the date fixed for redemption (unless such holder converts such shares in
accordance herewith). Holders of shares of Preferred Stock shall not be
entitled to any dividends, whether payable in cash, property or securities, in
excess of cumulative dividends, as herein provided, on the Preferred Stock. No
interest, or sum of money in lieu of interest, shall be payable in respect of
any dividend payment or payments on the Preferred Stock which are in arrears.
(c) So long as any shares of the Preferred Stock are outstanding, no
dividends, except as described in the next succeeding sentence, shall be
declared or paid or set apart for payment on any class or series of stock of the
Corporation ranking, as to dividends, on a parity with the Preferred Stock, for
any period unless full cumulative dividends on all outstanding shares of
Preferred Stock have been or contemporaneously are declared and paid or declared
and a sum sufficient for the payment thereof set apart for such payment for all
Dividend Periods terminating on or prior to the date of payment, or setting
apart for payment, of such full cumulative dividends on such parity stock. When
dividends are not paid in full or a sum sufficient for such payment is not set
apart, as aforesaid, upon the shares of the Preferred Stock and any other class
or series of stock ranking on a parity as to dividends with the Preferred Stock,
all dividends declared upon shares of the Preferred Stock and all dividends
declared upon such other stock shall be declared and paid pro rata so that the
amounts of dividends per share declared and paid on the Preferred Stock and such
other stock shall in all cases bear to each other the same ratio that accrued
and unpaid dividends per share on the shares of the Preferred Stock and on such
other stock bear to each other.
(d) So long as any shares of the Preferred Stock are outstanding, no other
stock of the Corporation ranking on a parity with the Preferred Stock as to
dividends or upon liquidation, dissolution or winding up shall be redeemed,
purchased or otherwise acquired for any consideration (or any moneys be paid to
or made available for a sinking fund or otherwise for the purchase or redemption
of any shares of any such stock) by the Corporation (except by conversion into
or exchange for stock of the Corporation ranking junior to the Preferred Stock
as to dividends and upon liquidation, dissolution or winding up) unless (i) the
full cumulative dividends, if any, accrued on all outstanding shares of the
Preferred Stock shall have been paid or set apart for payment for all past
Dividend Periods and (ii) sufficient funds shall have been set apart for the
payment of the dividend for the current Dividend Period with respect to the
Preferred Stock.
(e) So long as any shares of the Preferred Stock are outstanding, no
dividends (other than dividends or distributions paid in shares of Common Stock
or other stock ranking junior to the Preferred Stock as to dividends and upon
liquidation, dissolution or winding up) shall be declared or paid or set apart
for payment and no other distribution shall be declared or made or set apart for
payment, in each case upon the Common Stock or any other stock of the
Corporation ranking junior to the Preferred Stock as to dividends or upon
liquidation, dissolution or winding up, nor shall any
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Common Stock nor any other such stock of the Corporation ranking junior to the
Preferred Stock as to dividends or upon liquidation, dissolution or winding up
be redeemed, purchased or otherwise acquired for any consideration (or any
moneys be paid to or made available for a sinking fund or otherwise for the
purchase or redemption of any shares of any such stock) by the Corporation
(except by conversion into or exchange for stock of the Corporation ranking
junior to the Preferred Stock as to dividends and upon liquidation, dissolution
or winding up) unless, in each case (i) the full cumulative dividends, if any,
accrued on all outstanding shares of the Preferred Stock and any other stock of
the Corporation ranking on a parity with the Preferred Stock as to dividends
shall have been paid or set apart for payment for all past Dividend Periods and
all past dividend periods with respect to such other stock and (ii) sufficient
funds shall have been set apart for the payment of the dividend for the current
Dividend Period with respect to the Preferred Stock and for the current dividend
period with respect to any other stock of the Corporation ranking on a parity
with the Preferred Stock as to dividends.
4. Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, before any payment or
distribution of the assets of the Corporation (whether capital or surplus) shall
be made to or set apart for the holders of Common Stock or any other series or
class or classes of stock of the Corporation ranking junior to the Preferred
Stock upon liquidation, dissolution or winding up, the holders of the shares of
Preferred Stock shall be entitled to receive $10.00 per share plus an amount per
share equal to all dividends (whether or not earned or declared) accrued and
unpaid thereon to the date of final distribution to such holders; but such
holders shall not be entitled to any further payment. No payment on account of
any liquidation, dissolution or winding up of the Corporation shall be made to
the holders of any class or series of stock ranking on a parity with the
Preferred Stock in respect of the distribution of assets upon dissolution,
liquidation or winding up unless there shall likewise be paid at the same time
to the holders of the Preferred Stock like proportionate amounts determined
ratably in proportion to the full amounts to which the holders of all
outstanding shares of Preferred Stock and the holders of all outstanding shares
of such parity stock are respectively entitled with respect to such
distribution. If, upon any liquidation, dissolution or winding up of the
Corporation, the assets of the Corporation, or proceeds thereof, distributable
among the holders of the shares of Preferred Stock shall be insufficient to pay
in full the preferential amount aforesaid and liquidating payments on any other
shares of stock ranking, as to liquidation, dissolution or winding up, on a
parity with the Preferred Stock, then such assets, or the proceeds thereof,
shall be distributed among the holders of shares of Preferred Stock and any such
other stock ratably in accordance with the respective amounts which would be
payable on such shares of Preferred Stock and any such other stock if all
amounts payable thereon were paid in full. For the purposes of this Section 4,
neither a consolidation or merger of the Corporation with one or more
corporations or other entities nor a sale, lease, exchange or transfer of all or
any part of the Corporation's assets for cash, securities or other property
shall be deemed to be a liquidation, dissolution or winding up, voluntary or
involuntary.
(b) Subject to the rights of the holders of shares of any series or class
or classes of stock ranking on a parity with or prior to the Preferred Stock
upon liquidation, dissolution or winding up, upon any liquidation, dissolution
or winding up of the Corporation, after payment shall have been made in full to
the holders of Preferred Stock, as provided in this Section 4, any other series
or class or classes of stock ranking junior to the Preferred Stock upon
liquidation, dissolution or winding up shall, subject to the respective terms
and provisions (if any) applying thereto, be entitled to receive any and
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all assets remaining to be paid or distributed, and the holders of Preferred
Stock shall not be entitled to share therein.
(c) Written notice of any liquidation, dissolution or winding up of the
Corporation, stating the payment date or dates when and the place or places
where the amounts distributable in such circumstances shall be payable, shall be
given by first class mail, postage prepaid, not less than 30 days prior to any
payment date stated therein, to the holders of record of the Preferred Stock at
their respective addresses as the same shall appear on the stock records of the
Corporation.
5. Redemption at the Option of the Corporation.
(a) Preferred Stock may not be redeemed by the Corporation prior to the
fourth anniversary of the Issue Date. On or after such date the Corporation, at
its option, may redeem the shares of Preferred Stock, in whole or in part, out
of funds legally available therefor, at any time or from time to time, subject
to the notice provisions and provisions for partial redemption described below,
at the redemption price of $10.00 per share, plus an amount equal to accrued and
unpaid dividends, if any, to (and including) the date fixed for redemption,
whether or not earned or declared (the "Redemption Price").
(b) In the event the Corporation shall redeem shares of Preferred Stock,
notice of such redemption shall be given by first class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the redemption date, to
each holder of record of the shares to be redeemed, at such holder's address as
the same appears on the stock records of the Corporation. Each such notice
shall state: (i) the redemption date; (ii) the number of shares of Preferred
Stock to be redeemed and, if less than all the shares held by such holder are to
be redeemed, the number of such shares to be redeemed from such holder; (iii)
the Redemption Price; (iv) the place or places where certificates for such
shares are to be surrendered for payment of the redemption price; (v) the then
current Conversion Price; and (vi) that dividends on the shares to be redeemed
shall cease to accrue on such redemption date. If, on the date fixed for
redemption, funds necessary for the redemption shall be available therefor and
shall have been irrevocably deposited or set aside, then, notwithstanding that
the certificates evidencing any shares of Preferred Stock so called for
redemption shall not have been surrendered, the dividends with respect to the
shares so called shall cease to accrue after the date fixed for redemption, such
shares shall no longer be deemed outstanding, all rights of the holders of such
shares as stockholders of the Company shall cease, and all rights whatsoever
with respect to the shares so called for redemption (except the right of the
holders to receive the Redemption Price without interest upon surrender of their
certificates therefor) shall terminate.
Upon surrender in accordance with said notice of the certificates for any
such shares so redeemed (properly endorsed or assigned for transfer, if the
Board of Directors shall so require and the notice shall so state), such shares
shall be redeemed by the Corporation at the applicable Redemption Price
aforesaid. If fewer than all the outstanding shares of Preferred Stock are to be
redeemed, shares to be redeemed shall be selected by the Corporation from
outstanding shares of Preferred Stock not previously called for redemption by
lot or pro rata (as near as may be) or by any other method determined by the
Board of Directors of the Corporation in its sole discretion to be equitable. If
fewer than all the shares represented by any certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares without cost to
the holder thereof.
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In the event that the Corporation has failed to pay accrued and unpaid
dividends on the Preferred Stock, it may not redeem less than all of the then
outstanding shares of the Preferred Stock until all such accrued and unpaid
dividends and the then current quarterly dividends have been paid in full.
Notwithstanding the foregoing, if notice of redemption has been given
pursuant to this Section 5 and any holder of shares of Preferred Stock shall,
prior to the close of business on the fifth business day prior to the redemption
date, give written notice to the Corporation pursuant to Section 7(b) hereof of
the conversion of any or all of the shares to be redeemed held by such holder
(accompanied by a certificate or certificates for such shares, duly endorsed or
assigned to the Corporation), then (i) the Corporation shall not have the right
to redeem such shares, (ii) the conversion of such shares to be redeemed shall
become effective as provided in Section 7 and (iii) any funds which shall have
been deposited for the payment of the Redemption Price for such shares shall be
returned to the Corporation immediately after such conversion (subject to
declared dividends payable to holders of shares of Preferred Stock on the
dividend payment record date for such dividends being so payable, to the extent
set forth in Section 7 hereof, regardless of whether such shares are converted
subsequent to such dividend payment record date and prior to the related
dividend payment date).
6. Shares to be Retired. All shares of Preferred Stock purchased,
redeemed, exchanged or converted by the Corporation shall be retired and
canceled and shall be restored to the status of authorized but unissued shares
of preferred stock, without designation as to series, and may thereafter be
reissued.
7. Conversion. Holders of shares of Preferred Stock shall have the right
to convert all or a portion of such shares into shares of Common Stock, as
follows:
(a) Subject to and upon compliance with the provisions of this Section 7, a
holder of shares of Preferred Stock shall have the right, at such holder's
option, at any time to convert all or any of such shares into the number of
fully paid and nonassessable shares of Common Stock (calculated as to each
conversion to the nearest 1/100th of a share) obtained by dividing the aggregate
liquidation preference of the shares to be converted by the Conversion Price and
by surrender of such shares, such surrender to be made in the manner provided in
paragraph (b) of this Section 7; provided, however, that the right to convert
shares called for redemption pursuant to Section 5 hereof shall terminate at the
close of business on the fifth business day prior to the date fixed for such
redemption. No share of Preferred Stock may be converted in part into Common
Stock.
(b) In order to exercise the conversion right, the holder of each share of
Preferred Stock to be converted shall surrender the certificate representing
such share, duly endorsed or assigned to the Corporation or in blank, at the
office of the Transfer Agent in Chicago, Illinois, accompanied by written notice
to the Corporation that the holder thereof elects to convert such share of
Preferred Stock. Unless the shares issuable on conversion are to be issued in
the same name as the name in which such share of Preferred Stock is registered,
each share surrendered for conversion shall be accompanied by instruments of
transfer, in form satisfactory to the Corporation, duly executed by the holder
or such holder's duly authorized attorney and an amount sufficient to pay any
transfer or similar tax (or evidence reasonably satisfactory to the Corporation
demonstrating that such taxes have been paid or are not required to be paid).
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Holders of shares of Preferred Stock at the close of business on a dividend
payment record date shall be entitled to receive the dividend payable on such
shares on the corresponding dividend payment date (except that holders of shares
called for redemption on a redemption date falling between the close of business
on such dividend payment record date and the opening of business on the
corresponding dividend payment date shall, in lieu of receiving such dividend on
the dividend payment date fixed therefor, receive such dividend payment together
with all other accrued and unpaid dividends on the date fixed for redemption,
unless such holders convert such shares called for redemption pursuant to the
Certificate of Designations relating to the Preferred Stock) notwithstanding the
conversion thereof following such dividend payment record date and prior to such
dividend payment date. However, shares of Preferred Stock surrendered for
conversion during the period between the close of business on any dividend
payment record date and the opening of business on the corresponding dividend
payment date (except shares of Preferred Stock called for redemption on a
redemption date during such period) must be accompanied by payment of an amount
equal to the dividend payment with respect to such shares of Preferred Stock
presented for conversion on such dividend payment date. A holder of shares of
Preferred Stock on a dividend payment record date who (or whose transferee)
surrenders any such shares for conversion into shares of Common Stock on the
corresponding dividend payment date will receive the dividend payable by the
Corporation on such shares of Preferred Stock on such date and the converting
holder need not include payment in the amount of such dividend upon surrender of
shares of Preferred Stock for conversion on the dividend payment date. Except
as provided in this paragraph, the Corporation shall make no payment or
allowance for unpaid dividends, whether or not in arrears, on converted shares
of Preferred Stock or for dividends on the shares of Common Stock issued upon
such conversion.
As promptly as practicable after the surrender of certificates for shares
of Preferred Stock as aforesaid, the Corporation shall issue and shall deliver
at such office to such holder, or on such holder's written order, a certificate
or certificates for the number of shares of Common Stock issuable upon the
conversion of such shares in accordance with the provisions of this Section 7,
and any fractional interest in respect of a share of Common Stock arising upon
such conversion shall be settled as provided in paragraph (c) of this Section 7.
Each conversion shall be deemed to have been effected immediately prior to
the close of business on the date on which the certificates for shares of
Preferred Stock shall have been surrendered and such notice received by the
Corporation as aforesaid, and the person or persons in whose name or names any
certificate or certificates for shares of Common Stock shall be issuable upon
such conversion shall be deemed to have become the holder or holders of record
of the shares represented thereby at such time on such date and such conversion
shall be at the Conversion Price in effect at such time on such date, unless the
stock transfer books of the Corporation shall be closed on that date, in which
event such person or persons shall be deemed to have become such holder or
holders of record at the close of business on the next succeeding day on which
such stock transfer books are open, but such conversion shall be at the
Conversion Price in effect on the date upon which such shares shall have been
surrendered and such notice received by the Corporation. All shares of Common
Stock delivered upon conversion of the Preferred Stock will upon delivery be
duly and validly issued and fully paid and nonassessable.
(c) In connection with the conversion of any shares of Preferred Stock, no
fractional shares or scrip representing fractions of shares of Common Stock
shall be issued upon conversion of the Preferred Stock. Instead of any
fractional interest in a share of Common Stock which would otherwise
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be deliverable upon the conversion of a share of Preferred Stock, the
Corporation shall pay to the holder of such share an amount in cash (computed to
the nearest cent) equal to the Closing Price of Common Stock on the Trading Date
immediately preceding the date of conversion multiplied by the fraction of a
share of Common Stock represented by such fractional interest. If more than one
share of 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 of
Preferred Stock so surrendered.
(d) The Conversion Price shall be adjusted from time to time as follows:
(i) In case the Corporation shall after the Issue Date (A) pay a
dividend or make a distribution on its Common Stock that is paid or made
(1) in shares of its Common Stock or (2) in rights to purchase stock or
other securities if such rights are not separable from the Common Stock
except upon the occurrence of a contingency, (B) subdivide or split its
outstanding Common Stock into a greater number of shares, (C) combine its
outstanding Common Stock into a smaller number of shares or (D) issue any
shares of capital stock by reclassification of its Common Stock, the
Conversion Price in effect immediately prior thereto shall be adjusted or
(in the case of clause (A)(2)) other provision shall be made so that the
holder of any share of Preferred Stock thereafter surrendered for
conversion shall be entitled to receive the number of shares of Common
Stock of the Corporation and rights to purchase stock or other securities
which such holder would have owned or have been entitled to receive after
the occurrence of any of the events described above had such share been
surrendered for conversion immediately prior to the occurrence of such
event or the record date therefor, whichever is earlier. In the event of
the redemption of any rights referred to in clause (A), such holder shall
have the right to receive, in lieu of any such rights, any cash, property
or securities paid in respect of such redemption; provided, however, that
if the value of such cash, property or securities is less than $.05 per
share of Common Stock, such holder shall not be entitled to such cash,
property or securities. An adjustment made pursuant to this subparagraph
(i) shall become effective immediately after the close of business on the
record date for determination of stockholders entitled to receive such
dividend or distribution in the case of a dividend or distribution (except
as provided in paragraph (h) below) and shall become effective immediately
after the close of business on the effective date in the case of a
subdivision, split, combination or reclassification. Any shares of Common
Stock issuable in payment of a dividend shall be deemed to have been issued
immediately prior to the close of business on the record date for such
dividend for purposes of calculating the number of outstanding shares of
Common Stock under clauses (ii) and (iii) below.
(ii) In case the Corporation shall issue after the Issue Date rights
or warrants to all holders of Common Stock entitling them (for a period
expiring within 45 days after the issuance date) to subscribe for or
purchase Common Stock at a price per share less than the Current Market
Price per share of Common Stock at the record date for the determination of
stockholders entitled to receive such rights or warrants, then the
Conversion Price in effect immediately prior thereto shall be adjusted to
equal the price determined by multiplying (A) the Conversion Price in
effect immediately prior to the date of issuance of such rights or warrants
by (B) a fraction, the numerator of which shall be the sum of (1) the
number of shares of Common Stock outstanding on the date of issuance of
such rights or warrants (without giving effect to any such issuance) and
(2) the number of shares which the aggregate proceeds from
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the exercise of such rights or warrants for Common Stock would purchase at
such Current Market Price, and the denominator of which shall be the sum of
(1) the number of shares of Common Stock outstanding on the date of
issuance of such rights or warrants (without giving effect to any such
issuance) and (2) the number of additional shares of Common Stock offered
for subscription or purchase. Such adjustment shall be made successively
whenever any such rights or warrants are issued, and shall become effective
immediately after such record date. In determining whether any rights or
warrants entitle the holders of Common Stock to subscribe for or purchase
shares of Common Stock at less than such Current Market Price, there shall
be taken into account any consideration received by the Corporation upon
issuance and upon exercise of such rights or warrants, the value of such
consideration, if other than cash, to be determined by the Board of
Directors (whose determination shall, if made in good faith, be
conclusive).
(iii) In case the Corporation shall pay a dividend or make a
distribution to all holders of its Common Stock after the Issue Date of any
shares of capital stock of the Corporation or its subsidiaries (other than
Common Stock) or evidences of its indebtedness or assets, including
securities (any of the foregoing being hereinafter in this subparagraph
(iii) called the "Securities"), but excluding rights, warrants, dividends
and distributions referred to in subparagraphs (i) and (ii) above, regular
periodic cash dividends payable out of the Corporation's surplus that may
from time to time be fixed by the Board of Directors and dividends and
distributions in connection with the liquidation, dissolution or winding up
of the Corporation, then in each such case, the Conversion Price shall be
adjusted so that it shall equal the price determined by multiplying (A) the
Conversion Price in effect on the record date mentioned below by (B) a
fraction, the numerator of which shall be the Current Market Price per
share of the Common Stock on the record date mentioned below less the then
fair market value as determined by the Board of Directors (whose
determination shall, if made in good faith, be conclusive) as of such
record date of the portion of the Securities applicable to one share of
Common Stock, and the denominator of which shall be the Current Market
Price per share of the Common Stock on such record date; provided, however,
that in the event the then fair market value (as so determined) of the
portion of Securities so distributed applicable to one share of Common
Stock is equal to or greater than the Current Market Price per share of
Common Stock on the record date mentioned above, in lieu of the foregoing
adjustment, adequate provision shall be made so that each holder of shares
of Preferred Stock shall have the right to receive the amount and kind of
Securities such holder would have received had such holder converted each
such share of Preferred Stock immediately prior to the record date for the
distribution of the Securities. Except as provided in paragraph (h) below,
such adjustment shall become effective immediately after the record date
for the determination of stockholders entitled to receive such
distribution.
(iv) Notwithstanding anything in subparagraph (ii) above, if such
rights or warrants shall by their terms provide for an increase or
increases with the passage of time or otherwise in the price payable to the
Corporation upon the exercise thereof, the Conversion Price upon any such
increase becoming effective shall forthwith be readjusted (but to no
greater extent than originally adjusted by reason of such issuance or sale)
to reflect the same. Upon the expiration or termination of such rights or
warrants, if any such rights or warrants shall not have been exercised,
then the Conversion Price shall forthwith be readjusted and thereafter be
the rate which it would have been had an adjustment been made on the basis
that (A) the only rights
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or warrants so issued or sold were those so exercised and they were issued
or sold for the consideration actually received by the Corporation upon
such exercise plus the consideration, if any, actually received by the
Corporation for the granting of all such rights or warrants whether or not
exercised and (B) the Corporation issued and sold a number of shares of
Common Stock equal to those actually issued upon exercise of such rights or
warrants, and such shares were issued and sold for a consideration equal to
the aggregate exercise price in effect under the rights or warrants
actually exercised at the respective dates of their exercise. For purposes
of subparagraph (ii), the aggregate consideration received by the
Corporation in connection with the issuance of shares of Common Stock or of
rights or warrants shall be deemed to be equal to the sum of the aggregate
offering price (before deduction of underwriting discounts or commissions
and expenses payable to third parties) of all such securities plus the
minimum aggregate amount, if any, payable upon the exercise of such rights
or warrants into shares of Common Stock.
(v) No adjustment in the Conversion Price shall be required unless
such adjustment would require an increase or decrease of at least 1% in
such price; provided, however, that any adjustments which by reason of this
subparagraph (v) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment; and provided, however,
that any adjustment shall be required and shall be made in accordance with
the provisions of this Section 7 (other than this subparagraph (v)) not
later than such time as may be required in order to preserve the tax-free
nature of a distribution to the holders of shares of Common Stock. All
calculations under this Section 7 shall be made to the nearest cent (with
$.005 being rounded upward) or to the nearest 1/100th of a share (with .005
of a share being rounded upward), as the case may be. Anything in this
paragraph (d) to the contrary notwithstanding, the Corporation shall be
entitled, to the extent permitted by law, to make such reductions in the
Conversion Price, in addition to those required by this paragraph (d), as
it in its discretion shall determine to be advisable in order that any
stock dividend, subdivision of shares, distribution of rights or warrants
to purchase stock or securities, or distribution of other assets or any
other transaction which could be treated as any of the foregoing
transactions pursuant to Section 305 of the Internal Revenue Code of 1986,
as amended, hereafter made by the Corporation to its stockholders shall not
be taxable to such stockholders.
(e) In case the Corporation shall be a party to any transaction (including
without limitation a merger, consolidation, statutory share exchange, sale of
all or substantially all of the Corporation's assets or recapitalization of the
Common Stock (each of the foregoing being referred to as a "Transaction"), in
each case as a result of which shares of Common Stock shall be converted into
the right to receive stock, securities or other property (including cash or any
combination thereof), then the Preferred Stock remaining outstanding will
thereafter no longer be subject to conversion into Common Stock pursuant to
Section 7, but instead shall be convertible into the kind and amount of shares
of stock and other securities and property receivable (including cash) upon the
consummation of such Transaction by a holder of that number of shares or
fraction thereof of Common Stock into which one share of Preferred Stock was
convertible immediately prior to such Transaction. The Corporation shall not be
a party to any Transaction unless the terms of such Transaction are consistent
with the provisions of this paragraph (e) and it shall not consent or agree to
the occurrence of any Transaction until the Corporation has entered into an
agreement with the successor or purchasing entity, as the case may be, for the
benefit of the holders of the Preferred Stock which will contain provisions
enabling the holders of the Preferred Stock which remains outstanding after such
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Transaction to convert into the consideration received by holders of Common
Stock at the Conversion Price immediately after such Transaction. In the event
that at any time, as a result of an adjustment made pursuant to this Section 7,
the Preferred Stock shall become subject to conversion into any securities other
than shares of Common Stock, thereafter the number of such other securities so
issuable upon conversion of the shares of Preferred Stock shall be subject to
adjustment from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the shares of Preferred Stock
contained in this Section 7. The provisions of this paragraph (e) shall
similarly apply to successive Transactions.
(f) If:
(i) the Corporation shall declare a dividend (or any other
distribution) on the Common Stock that would cause an adjustment to the
Conversion Price of the Preferred Stock pursuant to the terms of any of the
paragraphs above (including such an adjustment that would occur but for the
terms of the first sentence of subparagraph (d)(v) above);
(ii) the Corporation shall authorize the granting to the holders of
the Common Stock of rights or warrants to subscribe for or purchase any
shares of any class or any other rights or warrants;
(iii) there shall be any reclassification or change of the Common
Stock (other than an event to which paragraph (d)(i) of this Section 7
applies) or any consolidation, merger or statutory share exchange to which
the Corporation is a party and for which approval of any stockholders of
the Corporation is required, or the sale or transfer of all or
substantially all of the assets of the Corporation; or
(iv) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Corporation;
then, the Corporation shall cause to be filed with the Transfer Agent and shall
cause to be mailed to the holders of shares of the Preferred Stock at their
addresses as shown on the stock records of the Corporation, as promptly as
possible, but at least 30 days prior to the applicable date hereinafter
specified, a notice stating (A) the date on which a record is to be taken for
the purpose of such dividend, distribution or granting of rights or warrants,
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 dividend, distribution or rights or
warrants are to be determined or (B) the date on which such reclassification,
change, consolidation, merger, statutory share exchange, sale, transfer,
dissolution, liquidation or winding up is expected to become effective or occur,
and the date as of which it is expected that holders of Common Stock of record
shall be entitled to exchange their shares of Common Stock for securities or
other property deliverable upon such reclassification, change, consolidation,
merger, statutory share exchange, sale, transfer, dissolution, liquidation or
winding up. Failure to give such notice or any defect therein shall not affect
the legality or validity of the proceedings described in this Section 7.
(g) Whenever the Conversion Price is adjusted as herein provided, the
Corporation shall promptly file with the Transfer Agent an officers' certificate
signed by the President or a Vice President and the Chief Financial Officer or
the Secretary of the Corporation setting forth the Conversion Price after such
adjustment, the method of calculation thereof and setting forth a brief
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statement of the facts requiring such adjustment and upon which such adjustment
is based. If the calculation of the adjustment requires a determination by the
Board of Directors pursuant to paragraph (d)(iii) of this Section 7 or any
similar provision, such certificate shall include a copy of the resolution of
the Board of Directors relating to such determination. Promptly after delivery
of such certificate, the Corporation shall prepare a notice of such adjustment
of the Conversion Price setting forth the adjusted Conversion Price, the facts
requiring such adjustment and upon which such adjustment is based and the date
on which such adjustment becomes effective and shall mail such notice of such
adjustment of the Conversion Price to the holder of each share of Preferred
Stock at such holder's last address as shown on the stock records of the
Corporation.
(h) In any case in which paragraph (d) of this Section 7 provides that an
adjustment shall become effective immediately after a record date for an event
and the date fixed for conversion pursuant to Section 7 occurs after such record
date but before the occurrence of such event, the Corporation may defer until
the actual occurrence of such event (i) issuing to the holder of any share of
Preferred Stock surrendered for conversion the additional shares of Common Stock
issuable upon such conversion by reason of the adjustment required by such event
over and above the Common Stock issuable upon such conversion before giving
effect to such adjustment and (ii) paying to such holder any amount in cash in
lieu of any fraction pursuant to paragraph (c) of this Section 7.
(i) For purposes of this Section 7, the number of shares of Common Stock at
any time outstanding shall not include any shares of Common Stock then owned or
held by or for the account of the Corporation or any corporation controlled by
the Corporation.
(j) If any single action would require adjustment pursuant to more than one
paragraph of this Section 7, only one adjustment shall be made and such
adjustment shall be the amount of adjustment which has the highest absolute
value to the holders of the Preferred Stock.
(k) In case the Corporation shall take any action affecting the Common
Stock, other than action described in this Section 7, which in the opinion of
the Board of Directors would materially adversely affect the conversion rights
of the holders of the shares of Preferred Stock, the Conversion Price for the
Preferred Stock may be adjusted, to the extent permitted by law, in such manner,
if any, and at such time, as the Board of Directors may determine to be
equitable in the circumstances. Subject to the foregoing, there shall be no
adjustment of the Conversion Price in case of the issuance of any stock of the
Corporation in a reorganization, acquisition or other similar transaction except
as specifically set forth in this Section 7.
(l) The Corporation shall at all times reserve and keep available, free
from preemptive rights, out of the aggregate of its authorized but unissued
shares of Common Stock or its issued shares of Common Stock held in its
treasury, or both, for the purpose of effecting conversion of the Preferred
Stock, the full number of shares of Common Stock deliverable upon the conversion
of all outstanding shares of Preferred Stock not theretofore converted. For
purposes of this paragraph (l), the number of shares of Common Stock which shall
be deliverable upon the conversion of all outstanding shares of Preferred Stock
shall be computed as if at the time of computation all such outstanding shares
were held by a single holder.
Before taking any action which would cause an adjustment reducing the
Conversion Price below the then par value of the shares of Common Stock
deliverable upon conversion of the Preferred Stock,
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the Corporation will take any corporate action which may, in the opinion of its
counsel, be necessary in order that the Corporation may validly and legally
issue fully paid and nonassessable shares of Common Stock at such adjusted
Conversion Price.
The Corporation will endeavor to make the shares of Common Stock required
to be delivered upon conversion of the Preferred Stock eligible for trading upon
the New York Stock Exchange, upon the NASDAQ National Market System or upon any
national securities exchange upon which the Common Stock shall then be traded,
prior to such delivery.
Prior to the delivery of any securities which the Corporation shall be
obligated to deliver upon conversion of the Preferred Stock, the Corporation
will endeavor to comply with all federal and state laws and regulations
thereunder requiring the registration of such securities with, or any approval
of or consent to the delivery thereof by, any governmental authority.
(m) The Corporation will pay any and all documentary stamp or similar issue
or transfer taxes payable in respect of the issue or delivery of the shares of
Preferred Stock (or any other securities issued on account of the Preferred
Stock pursuant hereto) or shares of Common Stock on conversion of the Preferred
Stock pursuant hereto; provided, however, that the Corporation shall not be
required to pay any tax which may be payable in respect of any transfer involved
in the issue or delivery of shares of Preferred Stock (or any other securities
issued on account of the Preferred Stock pursuant hereto) or shares of Common
Stock in a name other than the name in which the shares of Preferred Stock with
respect to which such Common Stock shares are issued were registered and the
Corporation shall not be required to make any issue or delivery unless and until
the person requesting such issue or delivery has paid to the Corporation the
amount of any such tax or has established, to the reasonable satisfaction of the
Corporation, that such tax has been paid or is not required to be paid.
(n) The Corporation shall not take any action which results in an
adjustment of the number of shares of Common Stock issuable upon conversion of a
share of Preferred Stock if the total number of shares of Common Stock issuable
after such action upon conversion of the Preferred Stock then outstanding,
together with the total number of shares of Common Stock then outstanding, would
exceed the total number of shares of Common Stock then authorized under the
Certificate of Incorporation. Subject to the foregoing, the Corporation shall
take all such actions as it may deem reasonable under the circumstances to
provide for the issuance of such number of shares of Common Stock as would be
necessary to allow for the conversion from time to time, and taking into account
adjustments as herein provided, of outstanding shares of the Preferred Stock in
accordance with the terms and provisions of the Certificate of Incorporation.
8. Ranking.
(a) Any class or classes of stock of the Corporation shall be deemed to
rank:
(i) prior to the Preferred Stock, as to dividends or as to the
distribution of assets upon liquidation, dissolution or winding up, if the
holders of such class shall be entitled to the receipt of dividends or of
amounts distributable upon liquidation, dissolution or winding up, as the
case may be, in preference or priority to the holders of Preferred Stock;
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(ii) on a parity with the Preferred Stock, as to dividends or as to
the distribution of assets upon liquidation, dissolution or winding up,
whether or not the dividend rates, dividend payment dates or redemption or
liquidation prices per share thereof be different from those of the
Preferred Stock, if the holders of such class of stock and the Preferred
Stock shall be entitled to the receipt of dividends or of amounts
distributable upon liquidation, dissolution or winding up, as the case may
be, in proportion to their respective amounts of accrued and unpaid
dividends per share or liquidation prices, without preference or priority
of one over the other; and
(iii) junior to the Preferred Stock, as to dividends or as to the
distribution of assets upon liquidation, dissolution or winding up, if such
stock shall be the Common Stock or if the holders of Preferred Stock shall
be entitled to receipt of dividends or of amounts distributable upon
liquidation, dissolution or winding up, as the case may be, in preference
or priority to the holders of shares of such stock.
(b) The Preferred Stock shall rank junior to shares of the Corporation's
Series A Convertible Preferred Stock as to dividends and as to the distribution
of assets upon liquidation, dissolution or winding up.
9. Voting.
(a) Except as herein provided or as otherwise from time to time required by
law, holders of Preferred Stock shall have no voting rights. Whenever, at any
time or times, dividends payable on the shares of Preferred Stock at the time
outstanding have not been paid in an aggregate amount equal to at least four
quarterly dividends on such shares (whether or not consecutive), the holders of
Preferred Stock shall have the right, voting separately as a class with the
holders of shares of any one or more other series of stock ranking on a parity
as to dividends with the Preferred Stock upon which like voting rights have been
conferred and are exercisable (the Preferred Stock and any such other stock,
collectively for purposes hereof, the "Defaulted Preferred Stock"), to elect two
directors of the Corporation at the Corporation's next annual meeting of the
stockholders and at each subsequent annual meeting of stockholders; provided,
however, that if such voting rights shall become vested more than 90 days or
less than 20 days before the date prescribed for the annual meeting of
stockholders, thereupon the holders of the shares of Defaulted Preferred Stock
shall be entitled to exercise their voting rights at a special meeting of the
holders of shares of Defaulted Preferred Stock as set forth herein. At
elections for such directors, each holder of Preferred Stock shall be entitled
to one vote for each share held (the holders of shares of any other series of
Defaulted Preferred Stock ranking on such a parity being entitled to such number
of votes, if any, for each share of stock held as may be granted to them.) Upon
the vesting of such right of the holders of Defaulted Preferred Stock, the then
authorized number of members of the Board of Directors shall automatically be
increased by two and the two vacancies so created shall be filled by vote of the
holders of outstanding Defaulted Preferred Stock as hereinafter set forth. The
right of holders of Defaulted Preferred Stock, voting separately as a class, to
elect members of the Board of Directors as aforesaid shall continue until such
time as all dividends accumulated on Defaulted Preferred Stock shall have been
paid, or declared and funds set aside for payment in full, at which time such
right shall terminate, except as herein or by law expressly provided, subject to
revesting in the event of each and every subsequent default of the character
above mentioned. As long as any shares of Preferred Stock shall remain
outstanding, the number of directors of the Corporation (excluding any directors
elected by vote of the holders of shares of Defaulted
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Preferred Stock) elected at any meeting of stockholders of the Corporation at
which directors are to be elected shall not be such as would cause the number of
directors in office after such meeting (excluding any directors elected by vote
of the holders of shares of Defaulted Preferred Stock) to exceed the number
which is two less than the maximum number of directors permitted by the
Certificate of Incorporation.
(b) Whenever such voting right shall have vested, such right may be
exercised initially either at a special meeting of the holders of shares of
Defaulted Preferred Stock called as hereinafter provided, or at any annual
meeting of stockholders held for the purpose of electing directors, and
thereafter at such meetings, or by the written consent of such holders pursuant
to Section 228 of the General Corporation Law of the State of Delaware.
(c) At any time when such voting right shall have vested in the holders of
shares of Defaulted Preferred Stock entitled to vote thereon, and if such right
shall not already have been initially exercised, an officer of the Corporation
shall, upon the written request of 10% of the holders of record of shares of
such Defaulted Preferred Stock then outstanding, addressed to the Secretary of
the Corporation, call a special meeting of holders of shares of such Defaulted
Preferred Stock. Such meeting shall be held at the earliest practicable date
upon the notice to holders of Defaulted Preferred Stock given as required for
annual meetings of stockholders at the place for holding annual meetings of
stockholders of the corporation or, if none, at a place designated by the
Secretary of the Corporation. If such meeting shall not be called by the proper
officers of the Corporation within 30 days after the personal service of such
written request upon the Secretary of the Corporation, or within 30 days after
mailing the same within the United States, by registered mail, addressed to the
Secretary of the Corporation at its principal office (such mailing to be
evidenced by the registry receipt issued by the postal authorities), then the
holders of record of 10% of the shares of Defaulted Preferred Stock then
outstanding may designate in writing any person to call such meeting at the
expense of the Corporation, and such meeting may be called by such person so
designated upon the notice to holders of Defaulted Preferred Stock given as
required for annual meetings of stockholders and shall be held at the same place
as is elsewhere provided in this paragraph. Any holder of shares of Defaulted
Preferred Stock then outstanding that would be entitled to vote at such meeting
shall have access to the stock books of the Corporation for the purpose of
causing a meeting of stockholders to be called pursuant to the provisions of
this paragraph. Notwithstanding the provisions of this paragraph, however, no
such special meeting shall be called or held during a period within 45 days
immediately preceding the date fixed for the next annual meeting of
stockholders.
(d) The directors elected as provided herein shall serve until the next
annual meeting or until their respective successors shall be elected and shall
qualify; any director elected by the holders of Defaulted Preferred Stock may be
removed without cause by, and shall not be removed without cause otherwise than
by, the vote of the holders of a majority of the outstanding shares of the
Defaulted Preferred Stock who are entitled to participate in such election of
directors, voting separately as a class, at a meeting called for such purpose or
by written consent as permitted by law and the Certificate of Incorporation and
By-laws of the Corporation. If the office of any director elected by the
holders of Defaulted Preferred Stock, voting separately as a class, becomes
vacant by reason of death, resignation, retirement, disqualification or removal
from office or otherwise, the remaining director elected by the holders of
Defaulted Preferred Stock, voting separately as a class, may choose a successor
who shall hold office for the unexpired term in respect of which such vacancy
occurred. Upon any termination of the right of the holders of Defaulted
Preferred Stock to vote for directors as
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herein provided, the term of office of all directors then in office elected by
the holders of Defaulted Preferred Stock, voting separately as a class, shall
terminate immediately. Whenever the terms of office of the directors elected by
the holders of Defaulted Preferred Stock, voting separately as a class, shall so
terminate and the special voting powers vested in the holders of Defaulted
Preferred Stock shall have expired, the number of directors shall be reduced by
the number of directors whose term of office shall have terminated as provided
hereinabove.
(e) So long as any shares of the Preferred Stock remain outstanding, the
affirmative vote or consent of the holders of at least 66-2/3% of the shares of
Preferred Stock outstanding at the time given either by written consent or in
person or by proxy at any special or annual meeting, shall be necessary to
permit, effect or validate any one or more of the following:
(i) the authorization, creation or issuance, or any increase in the
authorized or issued amount, of any class or series of stock, or any
security convertible into stock of such class or series, ranking prior to
the Preferred Stock as to dividends or the distribution of assets upon
liquidation, dissolution or winding up;
(ii) the amendment, alteration or repeal of any of the provisions of
the Certificate of Incorporation (including the Certificate of Designations
relating to the Preferred Stock) which would adversely affect any right,
preference, privilege or voting power of the Preferred Stock or of the
holders thereof; provided, however, that any increase in the amount of
authorized preferred stock or the creation and issuance of other series of
preferred stock, or any increase in the amount of authorized shares of any
such other series of preferred stock, in each case ranking on a parity with
or junior to the Preferred Stock with respect to the payment of dividends
and the distribution of assets upon liquidation, dissolution or winding up,
shall not be deemed to adversely affect such rights, preferences,
privileges or voting powers; or
(iii) the authorization of any reclassification of the Preferred
Stock.
(f) So long as any shares of the Preferred Stock remain outstanding, the
affirmative vote or consent of the holders of at least 50% of the shares of
Preferred Stock outstanding at the time given either by written consent or in
person or by proxy at any special or annual meeting, shall be necessary to
permit, effect or validate any increase in the amount of authorized Preferred
Stock or the creation of additional classes of stock or the issuance of any
series of capital stock ranking on a parity with the Preferred Stock with
respect to the payment of dividends and the distribution of assets upon
liquidation, dissolution and winding up of the Company.
The foregoing voting provisions shall not apply if, at or prior to the time
when the act with respect to which such vote would otherwise be required shall
be effected, all outstanding shares of Preferred Stock shall have been redeemed.
10. Record Holders. The Corporation and the Transfer Agent may deem and
treat the record holder of any shares of Preferred Stock as the true and lawful
owner thereof for all purposes, and neither the Corporation nor the Transfer
Agent shall be affected by any notice to the contrary.
11. Notice. Except as may otherwise be provided by law or provided for
herein, all notices referred to herein shall be in writing, and all notices
hereunder shall be deemed to have been given
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upon receipt, in the case of a notice of conversion given to the Corporation as
contemplated in Section 7(b) hereof, or, in all other cases, upon the earlier of
receipt of such notice or three Business Days after the mailing of such notice
if sent by registered mail (unless first-class mail shall be specifically
permitted for such notice under the terms hereof) with postage prepaid,
addressed: if to the Corporation, to its offices at 5847 San Felipe, Suite 700,
Houston, Texas 77057 (Attention: Corporate Secretary) or other agent of the
Corporation designated as permitted hereby; or, if to any holder of the
Preferred Stock, to such holder at the address of such holder of the Preferred
Stock as listed in the stock record books of the Corporation (which shall
include the records of the Transfer Agent), or to such other address as the
Corporation or holder, as the case may be, shall have designated by notice
similarly given.
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IN WITNESS WHEREOF, this Certificate has been signed on behalf of the
Corporation by its President and attested to by its Secretary, all as of the
30th day of January, 1997.
GOODRICH ACQUISITION II, INC.
By:/s/ Robert C. Turnham
---------------------
Attest:
By:/s/ Robert C. Turnham
---------------------
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