Exhibit 3.1
ACE LIMITED
CERTIFICATE OF THE POWERS, DESIGNATIONS,
PREFERENCES AND RIGHTS OF THE
8.25% CUMULATIVE REDEEMABLE PREFERRED SHARES, SERIES A
US $1.00 PAR VALUE PER SHARE
LIQUIDATION VALUE US$50 PER SHARE
The undersigned, Brian Duperreault, the Chairman and Chief
Executive Officer of ACE Limited, a company duly incorporated under the
laws of the Cayman Islands (the "Company"), and sole member of the Public
Offering Committee of the Company's Board of Directors, DOES HEREBY ADOPT
THE FOLLOWING RESOLUTIONS:
RESOLVED, that pursuant to the authority expressly granted to and
vested in this committee by the Board of Directors of the Company and in
accordance with the provisions of the Memorandum of Association and
Articles of Association, this committee hereby authorizes the issuance of a
series of other shares of the Company (the "Preferred Shares") which shall
consist of 6,900,000 shares, and hereby fixes the powers, designations,
preferences and relative, participating, optional or other special rights,
and the qualifications, limitations or restrictions thereof, of the
Preferred Shares (in addition to the powers, designations, preferences and
relative, participating, optional or other special rights and the
qualifications, limitations or restrictions thereof, set forth in the
Articles of Association of the Company which are applicable to the
Preferred Shares) as follows:
(i) Designation. The designation of this series shall be the 8.25%
Cumulative Redeemable Preferred Shares, Series A. The number of Preferred
Shares shall be 6,900,000. The liquidation preference of this series shall
be US$50 per share.
(ii) Rank. The Preferred Shares shall, with respect to dividend
rights and distribution rights upon liquidation, winding up and
dissolution, rank (a) senior to the Company's ordinary shares,
US$0.041666667 par value per share (the "Ordinary Shares"), and to all
classes and series of shares of the Company now or hereafter authorized,
issued or outstanding, which by their terms expressly provide that they
rank junior to the Preferred Shares as to dividend distributions and
distributions upon the liquidation, winding up and dissolution of the
Company, or which do not specify their rank (collectively with the Ordinary
Shares, the "Junior Securities"); (b) on a parity with each other class or
series of shares issued by the Company after the date hereof, the terms of
which specifically provide that such class or series will rank on a parity
with the Preferred Shares as to dividend distributions and distributions
upon the liquidation, winding up and dissolution of the Company
(collectively referred to as the "Parity Securities"); and (c) junior to
each other class or series of shares issued by the Company after the date
hereof, the terms of which specifically provide that such class or series
will rank senior to the Preferred Shares as to dividend distributions and
distributions upon the liquidation, winding up and dissolution of the
Company (collectively referred to as the "Senior Securities").
(iii) Dividends. Dividends are payable on the Preferred Shares
as follows:
(a) The holders of the Preferred Shares shall be entitled to
receive, out of funds legally available for that purpose, and when, as
and if declared by the Board of Directors of the Company, dividends
payable in cash at the annual rate of: (1) from April 12, 2000 to
but excluding May 16, 2003, 8.25% per annum and (2) thereafter, at
the Reset Rate, in each case, of the liquidation preference per
Preferred Share.
(b) The dividend rate will be reset on the third Business Day
immediately preceding May 16, 2003 and dividends shall accumulate on
the Preferred Shares at the Reset Rate from May 16, 2003 to but
excluding June 16, 2003. The Reset Rate shall be determined by the
Reset Agent in the manner provided in the Purchase Contract Agreement.
On the Reset Announcement Date, the Reset Spread and the One-Month
Treasury Bill to be used to determine the Reset Rate will be announced
by the Company. On the Business Day immediately following the Reset
Announcement Date, the Preferred Shares holders will be notified of
such Reset Spread and One-Month Treasury Bill by the Company. Such
notice shall be sufficiently given to holders of the Preferred Shares
if published in an Authorized Newspaper in The City of New York. So
long as the Preferred Shares are held by a Clearing Agency, not less
than 7 calendar days nor more than 15 calendar days prior to the Reset
Announcement Date, the Company will notify the relevant Clearing
Agency or its nominee (or any successor Clearing Agency or its nominee)
by first-class mail, postage prepaid, to notify the beneficial owners
or Clearing Agency Participants holding Preferred Shares or Income
PRIDES of such Reset Announcement Date.
(c) Dividends on the Preferred Shares shall be fully cumulative
and shall accumulate, without interest, from April 12, 2000, and shall
be payable in arrears in cash in equal quarterly payments on
February 16, May 16, August 16 and November 16 of each year,
commencing May 16, 2000 (each, a "Dividend Payment Date"), to holders
of record on the books and records of the Company (1) so long as the
Preferred Shares are held by a Clearing Agency, at the close of
business on the Business Day immediately preceding the relevant
Dividend Payment Date and (2) with respect to the Preferred Shares not
held by a Clearing Agency, as of the relevant record date established
by a resolution of the Board of Directors which shall be more than one
Business Day but less than 60 Business Days immediately preceding the
relevant Dividend Payment Date. If any date on which dividends on the
Preferred Shares are to be made is not a Business Day, payment of the
dividends payable on such date will be made on the next succeeding day
that is a Business Day, without any interest or other payment in
respect of any delay.
(d) Holders of the Preferred Shares of this Series shall be
entitled to receive such dividends in preference to and in priority
over dividends upon the Junior Securities, but subject to the rights
of holders of Senior Securities. The Preferred Shares shall be on a
parity as to dividends with all Parity Securities.
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(e) Except as described below, dividends on the Preferred Shares
shall be paid only in cash. The amount of dividends payable shall be
computed on the basis of a 360-day year of twelve 30-day months.
The amount of dividends payable for any period will be computed on
the basis of the actual number of days elapsed in that 90-day
period. All dividends paid with respect to the Preferred Shares
pursuant to this section shall be paid pro rata to the holders
entitled thereto.
(f) In the event the Company does not declare or pay dividends
on the Preferred Shares through May 15, 2003, on May 16, 2003, instead
of a cash payment in respect of such dividends, subject to
shareholder approval, holders of the shares will be entitled to
receive a number of Ordinary Shares of the Company equal to (1)
the aggregate of all accumulated and unpaid dividends on the
Preferred Shares, divided by (2) the average of the closing prices
per Ordinary Share on each of the twenty consecutive Trading Days
ending on the third Trading Day immediately preceding May 16,
2003. If the Company does not receive shareholder approval to make
such payment in Ordinary Shares, such payment shall be made in
cash.
(g) Accumulated but unpaid dividends for any past dividend
period may be declared by the Board of Directors and paid on any date
fixed by the Board of Directors, whether or not a Dividend Payment
Date, to holders of record on the books and records of the Company on
any date fixed by the Board of Directors. Holders of the Preferred
Shares shall not be entitled to any dividends in excess of full
cumulative dividends, as herein provided, on the Preferred Shares.
No interest, or sum of money in lieu of interest, shall be payable
in respect of any dividend payment on the Preferred Shares that
may be in arrears.
(h) Payment Restrictions.
(1) So long as any Preferred Shares are outstanding, if
the Company does not declare or pay dividends on the
Preferred Shares with respect to any Dividend Payment
Date, then, until all accumulated and unpaid dividends
are paid and the full quarterly dividend on the Preferred
Shares for the current and all prior dividend periods is
declared or set apart for payment, the Company may not
declare or pay any dividend or make any distribution of
assets on any Junior Securities or make any guarantee
payments with respect to the foregoing, or redeem,
purchase or otherwise acquire any Junior Securities.
(2) So long as any Preferred Shares are outstanding, if the
Company does not declare or pay dividends on the Preferred
Shares with respect to any Dividend Payment Date, then, until
all accumulated and unpaid dividends are paid and the full
quarterly dividend on the Preferred Shares for the current and
all prior dividend periods is declared or set apart for payment,
the Company may not declare or pay any dividend or make any
distribution of assets on any Parity Securities or make any
guarantee payments with respect to the foregoing, unless such
dividends are declared and paid pro rata so that the amount of
dividends declared and paid per share on the Preferred Shares
and any other Parity Securities in all cases shall bear to each
other the same ratio that the amount of accumulated but unpaid
dividends per share on the Preferred Shares and such other
Parity Securities bear to each other.
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(3) So long as any Preferred Shares are outstanding, if
the Company does not declare or pay dividends on the
Preferred Shares with respect to any Dividend Payment
Date, then, until all accumulated and unpaid dividends
are paid and the full quarterly dividend on the Preferred
Shares for the current and all prior dividend periods is
declared or set apart for payment, the Company may not
redeem, purchase or otherwise acquire any Parity Securities.
(4) Notwithstanding anything to the contrary set forth in
Sections (iii)(h)(1), (2) and (3) above, the restrictions
set forth in such Sections shall not apply to (A)
dividends or distributions paid in Junior Securities, (B)
redemptions or purchases of any rights outstanding under
a shareholder rights plan of the Company, or any
successor to such rights plan, or the declaration of a
dividend of such rights or the issuance of shares under
such plans in the future and (C) purchases of Junior
Securities related to the issuance of Junior Securities
under any benefit plans of the Company or its
subsidiaries, as the case may be, for their respective
directors, officers or employees.
(i) Any dividend payment made on the Preferred Shares shall
be credited first against the dividends accumulated with respect
to the earliest dividend period for which dividends have not
been paid.
(iv) Remarketing.
(a) Preferred Shares that comprise components of Income
PRIDES, the holders of which have failed to notify the Purchase
Contract Agent on or prior to the fifth Business Day immediately
preceding May 16, 2003 of their intention to settle the related
Purchase Contract by Cash Settlement on the Business Day
immediately preceding May 16, 2003, will be remarketed in
accordance with the Remarketing Agreement and subject to the
terms of the Remarketing Underwriting Agreement, on the third
Business Day immediately preceding May 16, 2003 in the manner
described in Section 5.2(b) of the Purchase Contract Agreement.
(b) On or prior to the fifth Business Day immediately
preceding May 16, 2003, but no earlier than the Dividend Payment
Date immediately preceding May 16, 2003, holders of Preferred
Shares that are separately traded from the Income PRIDES as the
result of the creation of Growth PRIDES (the "Separate Preferred
Shares") may elect to have their Preferred Shares remarketed in
accordance with the Remarketing Agreement and subject to the
terms of the Remarketing Underwriting Agreement, by delivering
the Preferred Shares to the Collateral Agent together with a
notice of such election to the collateral agent. Holders of
Preferred Shares electing to have their Preferred Shares
remarketed will also have the right to withdraw such election on
or prior to the fifth Business Day immediately preceding May 16,
2003. Such Preferred Shares shall be remarketed in the manner
described in Section 5.2(b) of the Purchase Contract Agreement.
In the event of a Failed Remarketing, the Remarketing Agent shall
promptly return the Separate Preferred Shares to the Collateral
Agent for release to the holders thereof.
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(v) Redemption at Option of Holders.
(a) If a Failed Remarketing has occurred, each holder of
Separate Preferred Shares shall have the right to require the
Company to redeem all or a portion of such shares owned by such
holder (the "Put Option") on May 16, 2003 (the "Put Option
Exercise Date"), upon at least three Business Days' prior notice,
at a redemption price of $50 per share plus an amount equal to
the accumulated and unpaid dividends to the date of payment (the
"Put Option Redemption Price").
(b) In order for the Preferred Shares to be repaid on the
Put Option Exercise Date, the Company must receive on or prior to
4:00 p.m. on the third Business Day immediately preceding the Put
Option Exercise Date, at the office of the Transfer Agent
maintained for that purpose in The City of New York, the
Preferred Shares to be repaid with the form entitled "Option to
Elect Redemption" on the reverse thereof or otherwise
accompanying such Preferred Share duly completed. Any such notice
received by the Company shall be irrevocable. All questions as to
the validity, eligibility (including time of receipt) and
acceptance of the Preferred Shares for repayment shall be
determined by the Company, whose determination shall be final
and binding.
(c) Payment of the Put Option Redemption Price to holders
of Preferred Shares shall be made at the office of the Transfer
Agent maintained for that purpose in The City of New York,
provided that the Transfer Agent has received from the Company
a sufficient amount of cash in connection with the related
redemption of the Preferred Shares no later than 1:00 p.m.,
New York City time, on the Put Option Exercise Date by check or
wire transfer in immediately available funds at such place and
to such account as may be designated by such holders. If the
Transfer Agent holds immediately available funds sufficient to
pay the Put Option Redemption Price of such Preferred Shares,
then, immediately prior to the close of business on the Put
Option Exercise Date, such Preferred Shares will cease to be
outstanding and dividends thereon will cease to accumulate,
whether or not Preferred Shares are delivered to the Transfer
Agent, and all other rights of the holder in respect of the
Preferred Shares shall terminate and lapse (other than the right
to receive the Put Option Redemption Price but without interest
on such Put Option Redemption Price). The Company shall not be
required to register or cause to be registered the transfer of
any Preferred Shares for which redemption has been elected. If
payment of the Put Option Redemption Price in respect of
Preferred Shares is improperly withheld or refused and not paid
either by the Transfer Agent or the Company, dividends on such
Preferred Shares will continue to accumulate, from the original
Put Option Exercise Date to the actual date of payment, in which
case the actual payment date will be considered the Put Option
Exercise Date for purposes of calculating the Put Option
Redemption Price.
(d) So long as the Preferred Shares are held by a Clearing
Agency, the Company will request, not less than 10 nor more than
15 calendar days prior to the date on which some or all of the
Preferred Shares could be remarketed in the manner described in
Section 5.2(b) of the Purchase Contract Agreement that the
relevant Clearing Agency notify the holders of the Separate
Preferred Shares as well as the Income PRIDES and Growth PRIDES
holders of such remarketing and of the procedures that must be
followed if a holder of Separate Preferred Shares wishes to
exercise such holder's rights with respect to the Put Option.
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(vi) Mandatory Redemption. On June 16, 2003 (the "Mandatory
Redemption Date"), the Preferred Shares shall be mandatorily redeemed by the
Company in whole for cash, out of any source of funds legally available, at a
redemption price equal to 100% of the liquidation preference per Preferred
Share plus all accumulated and unpaid dividends thereon (the "Mandatory
Redemption Price"). The Preferred Shares are not subject to any sinking
fund.
(vii) Procedure for Mandatory Redemption.
(a) Upon redemption of the Preferred Shares pursuant to
Section (vi) hereof, notice of such redemption shall be mailed by
first-class mail, postage prepaid, not less than twenty-five (25)
days nor more than sixty (60) days prior to the Mandatory
Redemption Date to holders of record of the Preferred Shares at
their respective addresses as they shall appear in the books and
records of the Company; provided, however, that the failure to
give such notice or any defect therein or in the mailing thereof
shall not affect the validity of the proceeding for the redemption
of the Preferred Shares except as to the holder to whom the
Company has failed to give such notice or except as to the holder
to whom notice was defective. Each such notice shall state: (1)
the Mandatory Redemption Date; (2) the Mandatory Redemption Price;
(3) the place or places where certificates for such Preferred
Shares are to be surrendered for payment of the Mandatory
Redemption Price; (4) that dividends on the Preferred Shares to be
redeemed will cease to accumulate thereon unless the Company shall
default in payment of the Mandatory Redemption Price; and (5) the
CUSIP number of the Preferred Shares being redeemed.
(b) If a notice of redemption shall have been given as
aforesaid and the Company shall have deposited on or before
the Mandatory Redemption Date a sum sufficient to redeem the
Preferred Shares as to which a notice of redemption has been
given in trust with the Transfer Agent with irrevocable
instructions and authority to pay the Mandatory Redemption Price
to the holders thereof, or if no such deposit is made, then upon
the Mandatory Redemption Date (unless the Company shall default
in making payment of the Mandatory Redemption Price), all rights
of the holders thereof as shareholders of the Company by reason
of the ownership of such Preferred Shares (except their right to
receive the Mandatory Redemption Price thereof without interest)
shall cease and terminate, and such Preferred Shares shall no
longer be deemed outstanding for any purpose. The Company shall
be entitled to receive, from time to time, from the Transfer
Agent the interest, if any, earned on such moneys deposited with
it, and the holders of any Preferred Shares so redeemed shall
have no claim to any such interest. In case the holder of any
Preferred Shares so called for redemption shall not claim the
Mandatory Redemption Price for its Preferred Shares within six
(6) years after the date of redemption, the Transfer Agent shall,
upon demand, pay over to the Company such amount remaining on
deposit, and the Transfer Agent shall thereupon be relieved of
all responsibility to the holder of such Preferred Shares, and
such holder shall look only to the Company for payment thereof.
After such six-year period, the right of any shareholder or other
Person to receive such payment may be forfeited in the manner and
with the effect provided under applicable law.
(c) Not later than 1:00 p.m., New York City Time, on the
Business Day immediately preceding the Mandatory Redemption
Date, the Company shall irrevocably deposit with the Transfer
Agent sufficient funds for the payment of the Mandatory
Redemption Price for the Preferred Shares to be redeemed on
the Mandatory Redemption Date and shall give the Transfer
Agent irrevocable instructions to apply such funds, and, if
applicable and so specified in the instructions, the income
and proceeds therefrom, to the payment of such Mandatory
Redemption Price. The Company may direct the Transfer Agent to
invest any such available funds, provided that the proceeds of
any such investment will be available to the Transfer Agent in
The City of New York at the opening of business on such
Mandatory Redemption Date.
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(d) Except as otherwise expressly set forth in this
paragraph and under applicable law, nothing contained in this
certificate shall limit any legal right of the Company to
purchase or otherwise acquire any Preferred Shares at any
price, whether higher or lower than the Mandatory Redemption
Price, in private negotiated transactions, the
over-the-counter market or otherwise; provided that the
Company may not purchase or otherwise acquire Preferred Shares
unless all accumulated and unpaid dividends on all outstanding
Preferred Shares for all dividend period(s) terminating on or
before the date of such purchase or acquisition shall have
been or are being contemporaneously paid or set apart for
payment.
(e) If the Company shall not have funds legally
available for the redemption of all of the Preferred Shares on
the Mandatory Redemption Date, the Company shall redeem on the
Mandatory Redemption Date only the number of Preferred Shares
as it shall have legally available funds to redeem, as
determined in an equitable manner, and the remainder of the
Preferred Shares shall be redeemed, at the option of the
Company, on the earliest practicable date next following the
day on which the Company shall first have funds legally
available for the redemption of such shares.
(f) Prior to calling the Preferred Shares for
redemption in accordance with this Section, the Company, by
resolution of its Board of Directors, shall, to the extent of
the redemption amount, to the extent of any such funds legally
available therefor and to the extent permitted by law, declare
a dividend on the Preferred Shares payable on or prior to the
Mandatory Redemption Date in an amount equal to any
accumulated and unpaid dividends on the Preferred Shares as of
such date.
(viii) Liquidation Preference.
(a) The liquidation preference of Preferred Shares, in
case of the voluntary or involuntary liquidation, dissolution
or winding-up of the Company, shall be US$50 per share, plus
the amount per share of any dividends accumulated thereon and
remaining unpaid at the date of such liquidation, dissolution
or winding-up.
(b) In the event of any voluntary or involuntary
liquidation, dissolution or winding-up of the Company, the
holders of the Preferred Shares shall be entitled to receive
the liquidation price of such shares held by them in
preference to and in priority over any distributions upon all
Junior Securities, but subject to the rights of holders of
Senior Securities. Upon payment in full of the liquidation
price to which the holders of the Preferred Shares are
entitled, the holders of the Preferred Shares will not be
entitled to any further participation in any distribution of
assets by the Company. If the assets of the Company are not
sufficient to pay in full the liquidation price payable to the
holders of the Preferred Shares and the liquidation price
payable to the holders of all Parity Securities, the holders
of all such shares shall share ratably in such distribution of
assets in accordance with the amounts which would be payable
on such distribution if the amounts to which the holders of
the Preferred Shares and the holders of Parity Securities are
entitled were paid in full.
(c) Neither a consolidation or merger of the Company
with or into any other corporation, nor a merger of any other
corporation with or into the Company, nor a sale or transfer of
all or any part of the Company's assets for cash, securities or
other property shall be considered a liquidation, dissolution or
winding-up of the Company within the meaning of this
Section (viii).
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(ix) Reacquired Shares. All shares of this Series which are at
any time redeemed pursuant to Section (v) or (vi) above shall be cancelled
and the authorized but unissued share capital of the Company shall be
increased accordingly, subject to reissuance by the Board of Directors of
the Company as shares of this series or shares of any one or more other
series.
(x) Voting Rights. Except as indicated below or as otherwise
required by applicable law, holders of the Preferred Shares will not have
voting rights.
(a) If at any time dividends payable on the Preferred
Shares are in arrears and unpaid in an aggregate amount equal
to or exceeding the aggregate amount of dividends payable
thereon for six quarterly dividend periods, the holders of the
Preferred Shares, together with the holders of any other
series of Parity Securities as to which dividends are in
arrears and unpaid in an aggregate amount equal to or
exceeding the aggregate amount of dividends payable for six
quarterly dividend periods (but only if the holders of the
shares of such other series would otherwise have a right to
elect Directors as a result of a dividend arrearage), will
have the special and exclusive right (superseding the separate
right of such other series to elect Directors so long as
Preferred Shares remain outstanding, except as otherwise
expressly provided in the certificate of designation
establishing such other series), voting separately as a class
with any such other series, to elect two Directors of the
Company, such Directors to be in addition to the number of
Directors constituting the Board of Directors of the Company
immediately prior to the accrual of such right. Such right of
the holders of Preferred Shares to elect two Directors shall,
when vested, continue until all accumulated dividends on the
Preferred Shares shall have been paid in full and, when so
paid, such right of the holders of Preferred Shares to elect
two Directors separately as a class shall terminate, subject
to revesting in the event of each and every subsequent default
in an aggregate amount equivalent to six full quarterly
dividends.
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(b) At any time when such special voting power has
vested in the holders of the Preferred Shares as described in
Section (x)(a) above, a proper officer of the Company will,
upon the written request of the holders of record of at least
10% of the Preferred Shares then outstanding addressed to the
Secretary of the Company, call an extraordinary meeting of the
holders of such series for the purpose of electing Directors.
Such meeting will be held at the earliest practicable date in
such place as may be designated pursuant to the Articles of
Association (or if there be no designation, at the principal
office of the Company in Hamilton, Bermuda). If such meeting
shall not be called by the proper officers of the Company
within 20 days after the Secretary of the Company has been
personally served with such request, or within 30 days after
mailing the same within the United States by registered or
certified mail addressed to the Secretary of the Company at
its principal office, then the holders of record of at least
10% of such class or series then outstanding may designate in
writing one of their number to call such meeting at the
Company's expense, and such meeting may be called by such
Person so designated upon the notice required for annual
meetings of shareholders and will be held in Hamilton,
Bermuda. Any holder of the shares of such class or series so
designated will have access to the register of members of the
Company for the purpose of causing meetings of shareholders to
be called pursuant to these provisions. Notwithstanding the
foregoing, no such extraordinary meeting will be called during
the period within 90 days immediately preceding the date fixed
for the next annual meeting of shareholders.
(c) At any annual or extraordinary meeting at which
the holders of any class or series of Parity Securities have
the special right, voting separately as a class, to elect
Directors as described above, the presence, in person or by
proxy, of the holders representing 33 1/3% of such class or
series will be required to constitute a quorum of such class
or series for the election of any director by the holders of
such class or series, voting as a class. At any such meeting
or adjournment thereof, (1) the absence of a quorum of such
class or series will not prevent the election of Directors
other than those to be elected by such class or series, voting
as a class, and the absence of a quorum for the election of
such other Directors will not prevent the election of the
Directors to be elected by such class or series, voting as a
class, and (2) in the absence of either or both such quorums,
a majority of the holders present in person or by proxy of any
class or series of shares for which a quorum is lacking will
have power to adjourn the meeting for the election of
Directors which they are entitled to elect, from time to time
until a quorum shall be present, without notice other than
announcement at the meeting.
(d) During any period in which the holders of any
class or series of Parity Securities have the right to vote as
a class for Directors as described above, any vacancies in the
Board of Directors will be filled only by vote of a majority
(even if that be only a single director) of the remaining
Directors theretofore elected by the holders of such class or
series which elected the Directors whose office shall have
become vacant. During such period the Directors so elected by
the holders of such class or series will continue in office
(1) until the next succeeding annual meeting or until their
successors, if any, are elected by such holders and qualify or
(2) unless required by applicable law to continue in office
for a longer period, until termination of the right of the
9
holders of such class or to vote as a class for Directors, if
earlier. If and to the extent permitted by applicable law,
immediately upon any termination of the right of the holders
of any class or series of Parity Securities to vote as a class
for Directors as provided herein, the term of office of the
Directors then in office so elected by the holders of such
class or series will terminate.
(e) Whether or not the Company is being wound up, the
rights attached to any class or series of Parity Securities
may only be varied with the consent in writing of the holders
of three-fourths of the issued shares of that class or series,
or with the sanction of a special resolution approved by at
least 66 2/3% of the votes cast by the holders of the shares
of that class or series at a duly convened meeting where at
least one-third of the issued shares of that class or series
are represented, either in person or by proxy. The rights
attached to any class or series of Parity Securities will not
be deemed to be varied by the creation or issue of any shares
or any securities convertible into or evidencing the right to
purchase shares ranking prior to or equally with such class or
series of the Parity Securities with respect to the payment of
dividends or of assets upon liquidation, dissolution or
winding up.
(f) On any item on which the holders of the Preferred
Shares are entitled to vote, such holders will be entitled to
one vote for each Preferred Share held.
(xi) Miscellaneous. The number of authorized Preferred Shares
may be increased or decreased (but not below the number of shares thereof
then outstanding) by the affirmative vote of the holders of a majority of
the share capital of the Company entitled to vote.
(xii) No Preemptive Rights. The holders of shares of this Series
shall have no preemptive rights, including preemptive rights with respect
to any share capital or other securities of the Company convertible into or
carrying rights or options to purchase any such shares.
(xiii) Company to Reserve Ordinary Shares. The Company shall at
all times prior to May 16, 2003 reserve and keep available, free from
preemptive rights, out of its authorized but unissued Ordinary Shares the
full number of Ordinary Shares issuable against tender of payment in
respect of all purchase contracts.
(xiv) Certain Definitions. As used in this certificate, the
following terms shall have the following respective meanings:
"Authorized Newspaper" means a daily newspaper, in the
English language, customarily published on each day that is a Business Day
in The City of New York, whether or not published on days that are legal
holidays, and of general circulation in The City of New York. The
Authorized Newspaper for the purposes of the Reset Spread Announcement
Date, is currently anticipated to be The Wall Street Journal (NYC edition).
"Business Day" means any day other than a Saturday, Sunday or
any other day on which banking institutions and trust companies in The City
of New York are permitted or required by any applicable law to close.
"Cash Settlement" has the meaning set forth in Section
5.2(a)(i) of the Purchase Contract Agreement.
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"Clearing Agency" means an organization registered as a
"Clearing Agency" pursuant to Section 17A of the Securities and Exchange
Act of 1934, as amended, that is acting as a depositary for the shares of
this Series and in whose name, or in the name of a nominee of that
organization, shall be registered a global certificate and which shall
undertake to effect book-entry transfers and pledges of the shares of this
Series.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time the
Clearing Agency effects book-entry transfers and pledges of securities
deposited with the Clearing Agency.
"Collateral Agent" means The Bank of New York, as Collateral
Agent under the Pledge Agreement until a successor Collateral Agent shall
have become such pursuant to the applicable provisions of the Pledge
Agreement, and thereafter "Collateral Agent" shall mean the Person who is
then the Collateral Agent thereunder.
"Company" means the Person named as the "Company" in the
first paragraph of this instrument.
"Dividend Payment Date" has the meaning set forth in Section
(iii)(c).
"DTC" means The Depository Trust Company, the initial
Clearing Agency.
"Failed Remarketing" has the meaning set forth in Section
5.2(b) of the Purchase Contract Agreement.
"Growth PRIDES" means the collective rights and obligations
of a holder of a Growth PRIDES certificate in respect of a 1/20th undivided
beneficial interest in a treasury security, subject in each case to the
pledge thereof under the Pledge Agreement, and the related Purchase
Contract.
"Income PRIDES" means the collective rights and obligations
of a holder of an Income PRIDES certificate in respect of a Preferred
Share, subject to the pledge thereof under the Pledge Agreement, and the
related Purchase Contract.
"Junior Securities" has the meaning set forth in Section
(ii).
"Mandatory Redemption Date" has the meaning set forth in
Section (vi).
"Mandatory Redemption Price" has the meaning set forth in
Section (vi).
"One-Month Treasury Bill" means direct obligations of the
United States (which may be obligations traded on a when-issued basis only)
having a maturity comparable to the remaining term to the Mandatory
Redemption Date of the Preferred Shares, as agreed upon by the Company and
the Reset Agent. The rate for the One-Month Treasury Bill will be the bid
side rate displayed at 10:00 A.M., New York City time, on the third
Business Day immediately preceding the May 16, 2003 in the Telerate system
(or if the Telerate system is (a) no longer available on the third Business
Day immediately preceding May 16, 2003 or (b) in the opinion of the Reset
Agent (after consultation with the Company) no longer an appropriate system
from which to obtain such rate, such other nationally recognized quotation
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system as, in the opinion of the Reset Agent (after consultation with the
Company) is appropriate. If such rate is not so displayed, the rate for the
One-Month Treasury Bill shall be, as calculated by the Reset Agent, the
yield to maturity for the One-Month Treasury Bill, expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis, and computed by taking the arithmetic mean of the
secondary market bid rates, as of 10:30 A.M., New York City time, on the
third Business Day immediately preceding May 16, 2003, of three leading
United States government securities dealers selected by the Reset Agent
(after consultation with the Company) (which may include the Reset Agent or
an affiliate thereof).
"Ordinary Shares" has the meaning set forth in Section (ii).
"Parity Securities " has the meaning set forth in Section (ii).
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Pledge Agreement" means the Pledge Agreement, dated as of
the date hereof, by and among the Company, the Collateral Agent and the
Agent, on its own behalf and as attorney-in-fact for the Holders from time
to time of the Securities.
"Preferred Shares" has the meaning set forth in the preamble.
"Pricing Committee" has the meaning set forth in the
preamble.
"Purchase Contract," when used with respect to any Income
PRIDES or Growth PRIDES, means the contract forming a part of such security
and obligating the Company to sell and the holder of such Security to
purchase Ordinary Shares under the terms and subject to the conditions set
forth in Article Five of the Purchase Contract Agreement.
"Purchase Contract Agent" means The Bank of New York.
"Purchase Contract Agreement" means the agreement between the
Company and the Purchase Contract Agent, dated April 12, 2000.
"Put Option" has the meaning set forth in Section (v).
"Put Option Exercise Price" has the meaning set forth in
Section (v).
"Put Option Redemption Price" has the meaning set forth in
Section (v).
"Remarketing Agent" means a nationally recognized investment
banking firm chosen by the Company to remarket the Preferred Shares. It is
currently anticipated that Merrill Lynch, Pierce, Fenner & Smith
Incorporated will act in such capacity.
"Remarketing Agreement" means the Remarketing Agreement dated
April 12, 2000 by and among the Company, the Remarketing Agent and the
Purchase Contract Agent.
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"Remarketing Underwriting Agreement" has the meaning
specified in the Remarketing Agreement.
"Reset Agent" means a nationally recognized investment
banking firm chosen by the Company to determine the Reset Rate. It is
currently anticipated that Merrill Lynch, Pierce, Fenner & Smith
Incorporated will act in such capacity.
"Reset Announcement Date" means the tenth (10th) Business Day
immediately preceding May 16, 2003.
"Reset Rate" means the dividend rate per annum (to be
determined by the Reset Agent), equal to the sum of (X) the Reset Spread
and (Y) the rate of interest on the One-Month Treasury Bill in effect on
the third Business Day immediately preceding May 16, 2003, that the
Preferred Shares should bear in order for the Preferred Shares to have an
approximate market value of 100.5% of their aggregate liquidation amount on
the third Business Day immediately preceding May 16, 2003; provided, that
the Company may limit such Reset Spread to be no higher than 200 basis
points (2%); and provided, further, that in the event of a Failed
Remarketing, the Reset Rate shall be the dividend rate per annum in effect
on the Business Day immediately preceding May 16, 2003.
"Reset Spread" means a spread amount to be determined by the
Reset Agent on the tenth (10th) Business Day immediately preceding May 16,
2003.
"Senior Securities" has the meaning set forth in Section
(ii).
"Separate Preferred Shares" has the meaning set forth in
Section (iv)(b).
"Trading Day" has the meaning specified in Section 5.1 of the
Purchase Contract Agreement.
"Transfer Agent" means The Bank of New York.
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IN WITNESS WHEREOF, the Company has caused this Certificate
to be duly executed on its behalf by the undersigned and attested to this
12th day of April, 2000.
_____________________________________________
Name: Brian Duperreault
Title: Chairman and Chief Executive Officer
ATTEST:
_______________________________
Name:
Title:
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