Exhibit 4.4
CERTIFICATE OF DESIGNATIONS
OF
STEP-UP CONVERTIBLE PREFERRED STOCK
(Par Value $0.10 Per Share)
OF
FREEPORT-McMoRan COPPER & GOLD INC.
Pursuant to Section 151(g) of the
General Corporation Law of the State of Delaware
We, the undersigned, being a Vice President and
the Secretary, respectively, of Freeport-McMoRan Copper &
Gold Inc. (hereinafter called the "Corporation"), a
corporation organized and existing under and by virtue of
the provisions of the General Corporation Law of the
State of Delaware,
DO HEREBY CERTIFY:
FIRST. The Certificate of Incorporation of the
Corporation, as amended (hereinafter called the
"Certificate of Incorporation"), authorizes the issuance
of 2,000,000 shares of Preferred Stock, par value $0.10
per share, of which no shares are currently issued. The
Board of Directors of the Corporation is authorized by the
Certificate of Incorporation to provide, without further
stockholder action, for the issuance of any or all of the
shares of the Preferred Stock in one or more series, with
such designation, powers, preferences and relative,
participating, optional or other rights, and any
qualifications, limitations or restrictions thereof, as
may be determined by the Board of Directors of the
Corporation with respect to each particular series prior
to the issue thereof.
SECOND. The Board of Directors of the
Corporation, acting by Unanimous Written Consent dated
June 24, 1993, and a Special Committee thereof, pursuant
to authority specifically granted to it by such Board of
Directors, acting by Unanimous Written Consent dated June
29, 1993, duly adopted the following
resolutions authorizing the creation and issuance of a
series of Preferred Stock to be known as "Step-up
Convertible Preferred Stock."
RESOLVED, that the Board of Directors, pursuant
to authority vested in it by the provisions of the
Certificate of Incorporation of the Corporation, hereby
authorizes the issuance of a series of Preferred Stock of
the Corporation and hereby fixes the number, designation,
preferences, rights and any qualifications, limitations or
restrictions thereof as follows:
1. Designation. (a) 700,000 shares of
Preferred Stock of the Corporation are hereby constituted
as a series of Preferred Stock designated as "Step-Up
Convertible Preferred Stock" (hereinafter called "this
Series"). Each share of this Series shall be identical in
all respects with the other shares of this Series except
as to the dates from and after which dividends thereon
shall be cumulative. The Board of Directors is authorized
to increase or decrease (but not below the number of
shares of this Series then outstanding) the number of
shares of this Series.
(b) Shares of this Series which have been
converted into Class A Common Stock of the Corporation
("Class A Common Stock"), redeemed for cash, Class A
Common Stock or a combination thereof, or purchased by the
Corporation shall be cancelled, and shall revert to
authorized but unissued shares of Preferred Stock
undesignated as to series, and may be reissued as a part
of this Series or may be reclassified and reissued as part
of a new series of Preferred Stock to be created by
resolution or resolutions of the Board of Directors, all
subject to the conditions or restrictions on issuance set
forth in any resolution or resolutions adopted by the
Board of Directors providing for the issue of such series
of Preferred Stock.
2. Dividends. (a) The holders of shares of
this Series shall be entitled to receive, but only out of
funds legally available therefor, cash dividends as
hereinafter provided. Such dividends shall be paid when,
as and if declared by the Board of Directors on the first
day of February, May, August and November in each year
commencing November 1, 1993 (each such date being referred
to herein as a "Dividend Payment Date") to holders of
record on the record date determined by the Board of
Directors in advance of the payment of each particular
dividend. Such dividends shall be cumulative from the
date of original issuance of the shares of this Series.
(b) So long as any shares of this Series shall
be outstanding, the Corporation shall not, unless full
cumulative dividends for all past dividend periods shall
have been paid or declared and set apart for payment upon
all outstanding shares of this Series and the shares of
any other class or series of Preferred Stock, the 7%
Convertible Exchangeable Special Preference Stock
(hereinafter called the "Special Preference Stock"), and
any other class or series of stock of the Corporation
ranking, as to dividends, on a parity with shares of this
Series (the shares of any other class or series of
Preferred Stock, the Special Preference Stock and any
other class or series of stock of the Corporation ranking,
as to dividends, on a parity with shares of this Series
being herein referred to as "Parity Dividend Stock"), (i)
declare, pay or set apart any amounts for dividends on, or
make any other distribution in cash or other property in
respect of, the Class A Common Stock, Class B Common Stock
of the Corporation ("Class B Common Stock") or any other
stock of the Corporation ranking junior to this Series as
to dividends or distribution of assets upon liquidation,
dissolution or winding up of the affairs of the
Corporation (the Class A Common Stock, the Class B Common
Stock and any such other stock being herein referred to as
"Junior Stock"), other than a dividend payable solely in
Junior Stock, (ii) purchase, redeem or otherwise acquire
for value any shares of Junior Stock, directly or
indirectly, other than as a result of a reclassification,
exchange or conversion of one Junior Stock for or into
another Junior Stock, or other than through the use of
proceeds of a substantially contemporaneous sale of other
Junior Stock, or (iii) make any payment on account of, or
set aside money for, a sinking or other like fund for the
purchase, redemption or other acquisition for value of any
shares of Junior Stock.
(c) If the funds available for the payment of
dividends are insufficient to pay in full the dividends
payable on all outstanding shares of this Series and
shares of Parity Dividend Stock, the total available funds
to be paid in partial dividends on the shares of this
Series and shares of Parity Dividend Stock shall be
divided among this Series and the Parity Dividend Stock in
proportion to the aggregate amounts of dividends accrued
and unpaid with respect to this Series and the Parity
Dividend Stock. Accruals of dividends shall not bear
interest.
3. Dividend Rate. The Dividend Rate on the
shares of this Series for the period from the date of
original issue thereof to and including August 1, 1996,
shall be $25.00 per annum per share and for each Dividend
Period thereafter shall be $35.00 per annum per share.
Dividends in respect of the first Dividend Period shall
accrue from the date of original issuance. The term
"Dividend Period", as used herein, means (i), with respect
to the November 1, 1993 Dividend Payment Date, the period
from the date of original issuance of shares of this
Series to and including such Dividend Payment Date, and
(ii), with respect to any other Dividend Payment Date, the
period commencing on the day following the immediately
preceding Dividend Payment Date to and including such
Dividend Payment Date.
4. Redemption. (a) The shares of this Series
shall not be redeemable prior to August 1, 1996. On and
after that date, the Corporation may, at its option,
redeem the shares of this Series, in whole or in part, at
any time or from time to time, as set forth herein,
subject to the provisions described below.
(b)(i) The shares of this Series may be redeemed
for Class A Common Stock, at the option of the
Corporation, at any time on or after August 1, 1996 and
prior to August 1, 1999 only if, for 20 Trading Days
within any period of 30 consecutive Trading Days,
including the last Trading Day of such period, the Current
Market Price of the Class A Common Stock on each of such
20 Trading Days exceeds 125% of the Conversion Price in
effect on such Trading Day. In order to exercise this
redemption option, the Corporation must issue a press
release announcing the redemption (the "Press Release")
prior to the opening of business on the third Trading Day
after the condition in the preceding sentence has been met
but in no event prior to August 1, 1996. The Press
Release shall announce the redemption and set forth the
number of shares of this Series which the Corporation
intends to redeem. The Corporation may redeem shares of
this Series pursuant to this Section 4(b) only if the
Class A Common Stock is listed or admitted to trading on a
national or regional securities exchange in the United
States or reported by the National Association of
Securities Dealers Automated Quotation System ("NASDAQ").
(ii) Upon redemption of shares of this Series by
the Corporation in accordance with Section 4(b)(i) hereof
on the date specified in the notice to holders required
under Section 4(b)(iii) hereof (the "Redemption Date"),
each share of this Series so redeemed shall be redeemed
for a number of shares of Class A Common Stock equal to
$500.00 divided by the Conversion Price as of the opening
of business on the Redemption Date. The Redemption Date
shall be selected by the Corporation, shall be specified
in the notice of redemption and shall be not less than 15
days or more than 60 days after the date on which the
Corporation issues the Press Release.
Upon any redemption of this Series for Common
Stock pursuant to this Section 4(b), the Corporation shall
pay any accrued and unpaid dividends for any Dividend
Period ending on or prior to the Redemption Date. If a
Redemption Date falls after a dividend payment record date
and prior to the corresponding Dividend Payment Date, then
each holder of shares of this Series at the close of
business on such dividend payment record date shall be
entitled to the dividend payable on such shares on the
corresponding Dividend Payment Date notwithstanding the
redemption of such shares before such Dividend Payment
Date. In the case of any Redemption Date occurring prior
to the record date for the November 1, 1996 Dividend
Payment Date, the holders of the shares of this Series to
be redeemed on such Redemption Date shall be entitled to
any accrued and unpaid dividends through August 1, 1996
but not thereafter. Except as provided above, the
Corporation shall make no payment or allowance for unpaid
dividends, whether or not in arrears, on shares of this
Series called for redemption under this Section 4(b) for
Class A Common Stock or on the shares of Class A Common
Stock issued upon such redemption.
(iii) If the Corporation elects to redeem shares
of this Series pursuant to Section 4(b)(i) hereof, notice
of such redemption shall be given not more than four
Business Days after the date on which the Corporation
issues the Press Release, to each holder of record of the
shares to be redeemed. Such notice shall be provided by
first class mail, postage prepaid, at such holder's
address as the same appears on the stock records of the
Corporation, and shall state, as appropriate: (1) the
Redemption Date; (2) the number of shares of this Series
(expressed in one-twentieths of a share of this Series) to
be redeemed and, if fewer than all the shares held by such
holder are to be redeemed, the number of such shares
(expressed in one-twentieths of a share of this Series) to
be redeemed from such holder; (3) the number of shares of
Class A Common Stock to be issued with respect to each
one-twentieth of a share of this Series; (4) the place or
places at which certificates for such shares are to be
surrendered for certificates representing shares of
Class A Common Stock; and (5) the date on which dividends
on the shares to be redeemed shall cease to accrue as
provided herein. Failure to mail such notice, or any
defect therein or in the mailing thereof, to any
particular holder shall not affect the validity of the
proceeding for the redemption of any shares so to be
redeemed from any other holder.
At the close of business on the Redemption Date,
each holder of shares of this Series to be redeemed
(unless the Corporation defaults in the delivery of the
shares of Class A Common Stock or cash payable on such
Redemption Date) shall be deemed to be the record holder
of the number of shares of Class A Common Stock into which
such shares of this Series are to be redeemed, regardless
of whether such holder has surrendered the certificates
representing such holder's shares of this Series that have
been redeemed. As promptly as practicable after the
surrender in accordance with said notice of the
certificates for any such shares so redeemed (properly
endorsed or assigned for transfer, if the Corporation
shall so require and the notice shall so state), such
shares shall be exchanged for certificates of shares of
Class A Common Stock and any cash (without interest
thereon) for which such shares have been redeemed.
(c)(i) At any time on or after August 1, 1999,
the shares of this Series may be redeemed, in whole or in
part, at the option of the Corporation at a redemption
price of $500.00 per share, plus an amount equal to all
accrued and unpaid dividends to and including the date
fixed for redemption. The Corporation may, except as
provided below, pay the redemption price in cash, Class A
Common Stock or any combination thereof; provided that the
Corporation may elect to pay the redemption price in whole
or in part in Class A Common Stock only if the Class A
Common Stock is listed or admitted to trading on a
national or regional securities exchange in the United
States or reported by NASDAQ; and provided, further that
any accrued and unpaid dividends must be paid in cash.
(ii) At least 15 days but not more than 60 days
prior to the date fixed for the redemption of the shares
of this Series in accordance with Section 4(c)(i) hereof
(the "Call Date"), a written notice will be mailed to each
holder of record (and each beneficial owner to the extent
required by law) of shares of this Series to be redeemed,
notifying such holder of the Corporation's election to
redeem such shares, stating the Call Date, stating the
Corporation's election with respect to whether the payment
of the redemption price is to be made in cash, Class A
Common Stock or a combination thereof, and calling upon
such holder to surrender to the Corporation on the Call
Date at the place designated in such notice the
certificate or certificates representing the number of
shares specified therein. On or after the Call Date, each
holder of shares of this Series to be redeemed must
present and surrender his certificate or certificates for
such shares to the Corporation at the place designated in
such notice and thereupon the redemption price of such
shares, in the manner elected by the Corporation, will be
paid and/or delivered to or on the order of the person
whose name appears on such certificate or certificates as
the owner thereof and each surrendered certificate will be
canceled. Except as provided in Section 4(c)(iv) hereof,
the Corporation may not change the form of consideration
(or components or percentages of components thereof) to be
paid by the Corporation in respect of such redemption once
the Corporation has given, or caused to be given, the
applicable redemption notice. At the close of business on
the Redemption Date, each holder of shares of this Series
to be redeemed (unless the Corporation defaults in the
delivery of the shares of Class A Common Stock or cash
payable on such Redemption Date) shall be deemed to be the
record holder of the number of shares of Class A Common
Stock into which such shares of this Series are to be
redeemed, regardless of whether such holder has
surrendered the certificates representing such holder's
shares of this Series that have been redeemed, dividends
on the shares of this Series so redeemed shall cease to
accrue, such shares shall be deemed to be no longer
outstanding, and all rights of the holders thereof as
holders of shares of this Series shall cease and
terminate.
(iii) If the Corporation elects to pay the
redemption price by the delivery of Class A Common Stock,
in whole or in part, the number of shares to be delivered
in respect of the specified percentage of the redemption
price to be paid in Class A Common Stock shall be equal to
the dollar amount of such specified percentage of the
redemption price divided by the Market Price of a share of
Class A Common Stock.
(iv) If the Market Price of the Class A Common
Stock is less than 90 per cent of the Weighted Average
Price of the Class A Common Stock over the five Trading
Days immediately prior to the date of the notice of
redemption provided for in Section 4(c)(ii), the
Corporation, at its option, may elect to pay the entire
redemption price on such Call Date in cash, rather than in
whole or in part with the shares of Class A Common Stock
specified in the notice of redemption; provided that, if
the Corporation so elects to pay the entire redemption
price in cash, the payment thereof shall be deferred until
as of the tenth Business Day following publication of the
notice of such election (the "Adjourned Call Date"), and
in such event the Corporation shall pay, in addition to
the redemption price, all accrued and unpaid dividends on
the shares of this Series to be redeemed through the
Adjourned Call Date. Upon determination of the actual
number of shares of Class A Common Stock issuable in
accordance with the foregoing provisions, the Corporation
will publish such determination (and, if it is entitled to
and so elects, notification of any exercise of the
election provided for in the preceding sentence, of the
Adjourned Call Date) promptly in The Wall Street Journal
or another daily newspaper of national circulation.
(d) No fractional shares or scrip representing
fractions of shares of Class A Common Stock shall be
issued upon redemption of this Series. Instead of any
fractional interest in a share of Class A Common Stock
that would otherwise be deliverable upon the redemption of
a share of this Series, the Corporation shall pay to the
holder of such share an amount in cash (computed to the
nearest cent) based upon the Market Price of Class A
Common Stock. If more than one share shall be surrendered
for redemption at one time by the same holder, the number
of full shares of Class A Common Stock issuable upon
redemption thereof shall be computed on the basis of the
aggregate number of shares of this Series so surrendered.
(e) The Corporation covenants that any shares of
Class A Common Stock issued upon redemption of this Series
shall be duly and validly issued, fully paid and non-
assessable, shall be issued from its authorized but
unissued shares and, except as provided in Section 9
hereof, will be free from all taxes, liens and charges
with respect to the issue thereof. The Corporation shall
endeavor to list the shares of Class A Common Stock
required to be delivered upon redemption of this Series,
prior to such redemption, upon each national securities
exchange, if any, upon which the outstanding Class A
Common Stock is listed at the time of such delivery. The
Corporation shall endeavor to take any action necessary to
ensure that any shares of Class A Common Stock issued upon
the redemption of this Series are freely transferable and
not subject to any resale restrictions under the
Securities Act of 1933, as amended (the "Act"), or any
applicable state securities or blue sky laws.
(f) If less than all the outstanding shares of
this Series are to be redeemed, the number of shares of
this Series to be redeemed and the method of effecting
such redemption, whether by lot or pro rata, shall be as
determined by the Board of Directors.
(g) At any time after a notice of redemption has
been given in the manner prescribed herein with respect to
a redemption in which the Corporation has elected to pay
the redemption price in whole in cash, and prior to the
date fixed for redemption, the Corporation may deposit in
trust, with a bank or trust company identified in the
notice of redemption having capital, surplus and
undistributed profits aggregating at least $50,000,000, an
aggregate amount of funds sufficient for such redemption
(including dividends accrued on the shares of this Series
called for redemption to the date fixed for redemption)
for immediate payment in the appropriate amounts upon
surrender of certificates for such shares. Any interest
accrued on such funds shall be paid to the Corporation
from time to time. Such deposit in trust shall be
irrevocable, except that any funds deposited by the
Corporation which shall not be required for the redemption
for which they were deposited because of the exercise of
rights of conversion subsequent to the date of deposit
shall be returned to the Corporation forthwith, and any
funds deposited by the Corporation which are unclaimed at
the end of two years from the date fixed for such
redemption shall be paid over to the Corporation upon its
request, and upon such repayment the holders of the shares
so called for redemption shall look only to the
Corporation for payment of the appropriate amount.
(h) From and after the date of the deposit of
trust funds for the redemption of shares of this Series in
accordance with the provisions of Section 4(g) hereof or,
if no such deposit is made, from and after the date fixed
for redemption (unless the Corporation shall default in
making payment of the amount payable upon such
redemption), whether or not certificates for shares so
called for redemption have been surrendered by the holders
thereof as described below, dividends on the shares of
this Series so called for redemption shall cease to
accrue, and such shares shall be deemed to be no longer
outstanding, and all rights of the holders thereof as
stockholders of the Corporation (except the right to
receive from the Corporation the amount payable upon such
redemption and, up to the close of business on the date
fixed for such redemption, the right to convert such
shares as set forth in Section 7 hereof) shall cease and
terminate. Upon surrender in accordance with the notice
of redemption of the certificates for any shares of this
Series so redeemed (properly endorsed or assigned for
transfer if the Corporation shall so require and the
notice shall so state), the holder thereof shall be
entitled to receive payment of the redemption price plus
an amount equal to all accrued and unpaid dividends as
aforesaid. If less than all of the shares represented by
any such surrendered certificate are redeemed, the
Corporation shall execute and deliver to the holder
thereof, or to his written order, a certificate or
certificates representing the unredeemed shares.
(i) In no event shall the Corporation redeem less
than all the outstanding shares of this Series and shares
of any other series of stock of the Corporation ranking,
as to dividends and distribution of assets upon
liquidation, dissolution or winding up of the affairs of
the Corporation, on a parity with the shares of this
Series ("Parity Stock") pursuant to this Section 4 unless
full cumulative dividends for all past dividend periods
shall have been paid or declared and set apart for payment
upon all outstanding shares of this Series and the shares
of such Parity Stock.
(j) In connection with any redemption of shares
of this Series solely for cash, the Corporation may enter
into an agreement with one or more investment bankers or
other purchasers for the purchase of the shares to be
redeemed from the holders thereof and the conversion of
such purchased shares into shares of Class A Common Stock
as provided in Section 7 hereof. Such agreement shall
provide that the amount to be paid by such purchasers to
the holders of the shares of this Series to be redeemed
shall not be less than the redemption price for such
shares together with all accrued and unpaid dividends
thereon to and including the date fixed for redemption and
may provide further that such amount be deposited in
trust, on or before the close of business on the date
fixed for redemption, with a bank or trust company
designated by the Corporation meeting the requirements set
forth in Section 4(g) hereof. Notwithstanding anything to
the contrary contained in this Section, the obligation of
the Corporation to pay the redemption price of the shares
of this Series to be redeemed, together with accrued and
unpaid dividends thereon to the date fixed for redemption,
shall be deemed to be satisfied and discharged to the
extent such amount is so paid by such purchasers. If such
an agreement is entered into, any shares of this Series to
be redeemed that have not been duly surrendered for
conversion by the holders thereof may, at the option of
the Corporation, be deemed, to the fullest extent
permitted by law, acquired by such purchasers from such
holders and (notwithstanding anything to the contrary
contained in this Section 4(j) or in Section 7 hereof)
surrendered by such purchasers for conversion, all as of
immediately prior to the close of business on the date
fixed for redemption, subject to payment of the above
amount as aforesaid.
(k) Definitions. For purposes of this
Section 4, the following terms shall have the meanings
indicated:
(i) "Accrued and unpaid dividends" in respect of
any share of this Series shall mean an amount computed at
the Dividend Rate for this Series from the date on which
dividends on such share became cumulative to and including
the date to which such dividends are to be accrued, less
the aggregate amount of all dividends theretofore paid
thereon. The amount accrued subsequent to the most recent
Dividend Period shall be computed by dividing the
quarterly dividend payment by the actual number of days in
the uncompleted quarter, and thereafter multiplying this
figure by the number of days in such quarter up to and
including the date to which dividends are to be accrued.
(ii) "Business Day" shall mean any day other than
a Saturday or Sunday or a day on which state or federally
chartered banking institutions in New York, New York are
not required to be open.
(iii) "Conversion Price" shall have the meaning
set forth in, and shall be subject to adjustment from time
to time as provided in, Section 7(d) hereof.
(iv) "Current Market Price" in respect of the
Class A Common Stock means the last reported sales price,
regular way, on such day, or, if no sale takes place on
such day, the average of the reported closing bid and
asked prices on such day, regular way, in either case as
reported in the composite transactions for the New York
Stock Exchange or, if such security is not listed or
admitted for trading on the New York Stock Exchange, on
the principal national or regional securities exchange in
the United States on which the Class A Common Stock is
listed or admitted to trading, or if the Class A Common
Stock is not listed or admitted to trading on a national
or regional securities exchange in the United States, on
the National Market System of NASDAQ or, if the Class A
Common Stock is not quoted on such National Market System,
the average of the closing bid and asked prices on such
day in the over-the-counter market as reported by NASDAQ,
or if bid and asked prices for such security on such day
shall not have been reported through NASDAQ or by the
National Quotation Bureau Incorporated, the average of the
bid and asked prices on such day as furnished by any New
York Stock Exchange member firm regularly making a market
in such security selected for such purpose by the Board of
Directors of the Corporation.
(v) "Market Price" means the Weighted Average
Price of a share of Class A Common Stock over the five
Trading Day period ending on the third Business Day prior
to the applicable Redemption Date or Call Date (or, if
such third Business Day is not a Trading Day, on the last
Trading Day prior to such Business Day), appropriately
adjusted to take into account the occurrence, during the
period commencing on the first of such Trading Days and
ending on such Redemption Date or Call Date, of any event
described in Section 7(d) hereof.
(vi) "Trading Day" shall mean any day on which
the securities in question are traded on the New York
Stock Exchange, or if such securities are not listed or
admitted for trading on the New York Stock Exchange, on
the principal national or regional securities exchange on
which such securities are listed or admitted, or if not
listed or admitted for trading on any national or regional
securities exchange, on the National Market System of
NASDAQ, or if such securities are not quoted on such
National Market System, in the applicable securities
market in which the securities are traded.
(vii) "Weighted Average Price" of a share of Class
A Common Stock on any Trading Day or over any period of
Trading Days means the weighted average per share sale
price for all sales of shares of Class A Common Stock on
such Trading Day or during such period, as the case may be
(or, if the information necessary to calculate such
weighted average per share sale price is not reported, the
average of the high and low sale prices or, if no sales
prices are reported, the average of the bid and ask prices
or, if more than one in either case, the average of the
average bid and average ask prices) as reported in the
composite transactions for the New York Stock Exchange, or
if the Class A Common Stock is not listed or admitted to
trading on such Exchange, as reported in the composite
transactions for the principal national or regional
securities exchange in the United States on which the
Class A Common Stock is listed or admitted to trading, or
if the Class A Common Stock is not listed or admitted to
trading on a United States national or regional securities
exchange, as reported by NASDAQ or by the National
Quotation Bureau Incorporated; provided that, in the
absence of such quotations, the Corporation shall be
entitled to determine the Weighted Average Price on the
basis of such quotations as it considers appropriate.
5. Voting Rights. (a) Except for the voting
rights described below and except as otherwise provided by
law, the holders of shares of this Series shall not be
entitled to vote on any matter or to receive notice of, or
to participate in, any meeting of the stockholders of the
Corporation. Each share of Preferred Stock of this Series
will be entitled to one vote on matters which holders of
such series are entitled to vote.
(b) Whenever dividends payable on shares of this
Series shall be in default in an aggregate amount equal to
or exceeding six full quarterly dividends on all shares of
this Series at the time outstanding, the number of
directors then constituting the Board of Directors of the
Corporation shall be increased by two, and holders of
shares of this Series shall, in addition to any other
voting rights, have the right, voting separately as a
class together with holders of all other series of stock
of the Company ranking on a parity with such series of
Preferred Stock either as to dividends or the distribution
of assets upon liquidation, dissolution or winding up and
upon which like voting rights have been conferred and are
exercisable (such other series of stock being herein
referred to as "Other Voting Stock"), to elect such two
additional directors. In such case, the Board of
Directors will be increased by two directors, and the
holders of Preferred Stock of such series (either alone or
with the holders of Other Voting Stock) will have the
exclusive right as members of such class, as described
above, to elect two directors at the next annual meeting
of stockholders. Whenever such right of the holders of
shares of this Series shall have vested, such right may be
exercised initially either at a special meeting of such
holders as provided in Section 5(c) hereof or at any
annual meeting of stockholders held for the purpose of
electing directors, and thereafter at such annual
meetings. The right of the holders of shares of this
Series to vote together as a class with the holders of
shares of any Other Voting Stock shall continue until such
time as all dividends accrued on outstanding shares of
this Series to the Dividend Payment Date next preceding
the date of any such determination shall have been paid in
full, or declared and set apart in trust for payment, at
which time the right of the holders of shares of this
Series so to vote shall terminate, except as herein or by
law expressly provided, subject to revesting upon the
occurrence of a subsequent default of the character
mentioned above.
(c) At any time when the right of the holders of
shares of this Series to elect directors as provided in
Section 5(b) hereof shall have vested, and if such right
shall not already have been initially exercised, a proper
officer of the Corporation, upon the written request of
the holders of record of at least 10% of the aggregate
number of shares of this Series and shares of any Other
Voting Stock at the time outstanding, addressed to the
Secretary of the Corporation, shall call a special meeting
of the holders of shares of this Series and of such Other
Voting Stock for the purpose of electing directors. Such
meeting shall be held at the earliest practicable date
upon the same form of notice as is required for annual
meetings of stockholders at the place for the holding of
annual meetings of stockholders of the Corporation (or
such other suitable place as is designated by such
officer). If such meeting shall not be called by a proper
officer of the Corporation within 20 days after personal
service of such written request upon the Secretary of the
Corporation, or within 20 days after mailing the same
within the United States of America, addressed to the
Secretary of the Corporation at its principal office (such
mailing to be evidenced by the registry receipt issued by
the postal authorities), then the holders of record of at
least 10% of the aggregate number of shares of this Series
and shares of any Other Voting Stock at the time
outstanding may designate in writing one of their number
to call such a meeting at the expense of the Corporation,
and such meeting may be called by such person so
designated upon the same form of notice as is required for
annual meetings of stockholders and shall be held at the
place for the holding of annual meetings of stockholders
of the Corporation (or such other suitable place as is
designated by such person). Any holder of shares of this
Series so designated shall have access to the registry
books of the Corporation for the purpose of causing a
meeting of stockholders to be called pursuant to this
subsection (c). Notwithstanding anything to the contrary
contained in this subsection (c), no such special meeting
shall be called during the period within 90 days
immediately preceding the date fixed for the next annual
meeting of stockholders of the Corporation.
(d) At any meeting held for the purpose of
electing directors at which holders of shares of this
Series shall have the right, voting together as a class
with holders of shares of any Other Voting Stock to elect
directors as provided in Section 5(b) hereof, the
presence, in person or by proxy, of the holders of 33 1/3%
of the aggregate number of shares of this Series and
shares of such Other Voting Stock at the time outstanding
shall be required and be sufficient to constitute a quorum
of such class for the election of directors pursuant to
such Section 5(b). At any such meeting or adjournment
thereof, (i) the absence of a quorum of the shares of this
Series and shares of such Other Voting Stock shall not
prevent the election of the directors to be elected
otherwise than pursuant to Section 5(b) hereof and (ii) in
the absence of a quorum, either of the shares of this
Series and shares of such Other Voting Stock or of any
other shares of stock of the Corporation, or both, a
majority of the holders, present in person or by proxy, of
the class or classes of stock which lack a quorum shall
have the power to adjourn the meeting for the election of
directors whom they are entitled to elect, from time to
time without notice other than announcement at the
meeting, until a quorum shall be present.
(e) During any period when the holders of shares
of this Series shall have the right to vote together as a
class with the holders of shares of any Other Voting Stock
for directors as provided in Section 5(b) hereof, (i) the
directors so elected by such holders shall continue in
office until their successors shall have been elected by
such holders or until termination of the rights of such
holders to vote as a class for directors and (ii) any
vacancies in the Board of Directors shall be filled only
by a majority (even if that be only a single director) of
the remaining directors theretofore elected by the holders
of the class or classes of stock which elected the
director whose office shall have become vacant.
Immediately upon termination of the right of holders of
this Series and any Other Voting Stock to vote as a class
for directors, (i) the term of office of the directors so
elected shall terminate and (ii) the number of directors
shall be such number as may be provided for in the by-laws
of the Corporation irrespective of any increase pursuant
to the provisions of Section 5(b) hereof.
(f) In addition to any other vote required by
law, the Corporation shall not (i) amend, alter or repeal,
whether by merger, consolidation or otherwise, the
provisions of the Certificate of Incorporation (including
this Certificate of Designations) so as to materially and
adversely affect any right, preference, privilege or
voting power of this Series or (ii) create, authorize or
issue any series or class of stock ranking prior, either
as to payment of dividends or distributions of assets upon
liquidation, dissolution or winding up, to this Series,
without the affirmative vote or consent of the holders of
at least two-thirds of the aggregate number of shares of
this Series at the time outstanding, voting as a separate
class; provided, that any increase in the total number of
authorized shares of Class A Common Stock, Special Stock
or Preferred Stock, or the creation, authorization or
issuance of any series of stock ranking, as to dividends
or distribution of assets upon liquidation, dissolution or
winding up of the affairs of the Corporation, on a parity
with the shares of this Series will not be deemed to
materially and adversely affect such rights, preferences,
privileges or voting powers and provided, further, that no
class vote of the holders of shares of this Series shall
be required if, at or prior to the time when the actions
described in clause (i) or (ii) of this Section 5(f) shall
become effective, provision is made in accordance with
Section 4 hereof for the redemption of all shares of this
Series at the time outstanding.
6. Preference upon Liquidation. In the event of
any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Corporation, after
payment or provision for payment of the debts and other
liabilities of the Corporation and of dividends and
liquidation preferences in respect of any other stock of
the Corporation ranking senior to the shares of this
Series as to such payments, the holders of shares of this
Series shall be entitled to receive, out of the remaining
net assets of the Corporation, the amount of $500.00 in
cash for each share of this Series, plus an amount equal
to all dividends (whether or not earned or declared)
accrued and unpaid on each such share up to the date fixed
for distribution, before any distribution shall be made to
or set apart for the holders of any Junior Stock. If,
after payment or provision for payment of the debts and
other liabilities of the Corporation and of dividends and
liquidation preferences in respect of any other stock of
the Corporation ranking senior to the shares of this
Series as to such payments, the remaining net assets of
the Corporation are not sufficient to pay to the holders
of shares of this Series the full amount of their
preference set forth above, then the remaining net assets
of the Corporation shall be divided among and paid to the
holders of shares of this Series, holders of shares of
Special Preference Stock and holders of shares of any
other stock of the Corporation on a parity with this
Series as to dividends and distribution of assets upon
liquidation, dissolution or winding up of the affairs of
the Corporation ratably per share in proportion to the
full per share amounts to which they respectively are
entitled. For purposes of this Section 6, a consolidation
or merger of the Corporation with one or more other
Corporations or the sale of all or substantially all of
the assets of the Corporation shall not be deemed to be a
voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Corporation.
Subject to the rights of the holders of shares of
any series or class of stock ranking on a parity as to
dividends and distribution of assets upon liquidation,
dissolution or winding up of the affairs of the
Corporation, after payment shall have been made in full to
the holders of this Series as provided in this Section 6,
the holders of any Junior Stock shall, subject to the
respective terms and provisions (if any) applying thereto,
be entitled to receive any and all assets remaining to be
paid or distributed, and shares of this Series shall not
be entitled to share therein.
7. Conversion Privilege. (a) Subject to and
upon compliance with the provisions of this Section 7, at
the option of the holder thereof, each share of this
Series may, at any time (unless shares of this Series
shall be called for redemption, then, with respect to
shares of this Series so called, until and including, but,
if the Corporation shall not default in making payment of
the amount payable on such redemption, not after, the
close of business on the date fixed for redemption), be
converted into a number of fully paid and nonassessable
shares of Class A Common Stock equal to the quotient
obtained by dividing $500.00 by the Conversion Price (as
hereinafter defined) in effect at the Date of Conversion
(as hereinafter defined).
(b) In order to exercise the conversion
privilege, any holder of shares of this Series to be
converted shall surrender such shares to the Corporation
at any time during usual business hours at the place or
places (including a place in the Borough of Manhattan, The
City of New York) maintained for such purpose, accompanied
by a fully executed written notice, in substantially the
form set forth on the reverse of the certificate
representing shares of this Series, that the holder elects
to convert such shares. Such notice shall also state the
name or names (with address) in which the certificate or
certificates for shares of Class A Common Stock shall be
issued. Shares of this Series surrendered for conversion
shall (if so required by the Corporation) be properly
endorsed or assigned for transfer by the holder or his
attorney duly authorized in writing. The holders of
shares of this Series at the close of business on any
record date for the payment of dividends on such shares
will be entitled to receive the dividend payable on such
shares on the corresponding Dividend Payment Date
notwithstanding the conversion thereof or the
Corporation's default in the payment of the dividend due
on such Dividend Payment Date. Shares of this Series
surrendered for conversion during the period from the
close of business on any record date for the payment of
dividends on such shares to the opening of business on the
corresponding Dividend Payment Date (except shares called
for redemption on a Redemption Date or Call Date during
the period from such record date to and including the
Dividend Payment Date) must be accompanied by payment of
an amount equal to the dividend payable on such shares on
such Dividend Payment Date. A holder of shares of this
Series on a record date for the payment of dividends on
such shares who converts such shares on a Dividend Payment
Date will receive the dividend payable on such shares by
the Corporation on such date, and the converting holder
need not include a payment in the amount of any such
dividend upon surrender of such shares for conversion. As
promptly as practicable after the receipt of such notice
and the surrender of such shares of this Series as
aforesaid, the Corporation shall, subject to the
provisions of Section 9 hereof, issue and deliver at such
place or places referred to in this subsection (b) to such
holder, or on his written order, a certificate or
certificates for the number of full shares of Class A
Common Stock issuable on such conversion of shares of this
Series in accordance with the provisions of this Section,
and cash, as provided in Section 7(c) hereof, in respect
of any fraction of a share of Class A Common Stock
otherwise issuable upon such conversion. Such conversion
shall be deemed to have been effected immediately prior to
the close of business on the date (herein called the "Date
of Conversion") on which such notice shall have been
received by the Corporation and such shares of this Series
shall have been surrendered as aforesaid, and the person
or persons in whose name or names any certificate or
certificates for shares of Class A Common Stock shall be
issuable upon such conversion shall be deemed to have
become on the Date of Conversion the holder or holders of
record of the shares of Class A Common Stock represented
thereby; provided, that any such surrender on any date
when the registry books of the Corporation shall be closed
shall constitute the person or persons in whose name or
names the certificate or certificates for such shares are
to be issued as the record holder or holders thereof for
all purposes at the opening of business on the next
succeeding day on which such registry books are open, but
such conversion shall nevertheless be at the Conversion
Price in effect at the close of business on the date when
such shares of this Series shall have been so surrendered
with the conversion notice. In the case of conversion of
a portion, but less than all, of the shares of this Series
represented by a certificate surrendered for conversion,
the Corporation shall execute, and deliver to the holder
thereof, or on his written order, a certificate or
certificates representing the shares of this Series which
the holder has not elected to convert into shares of Class
A Common Stock. No payment or adjustment shall be made
for dividends accrued on the shares of this Series
converted as provided in this Section or for dividends or
distributions accrued on any Class A Common Stock.
(c) No fractions of shares or scrip representing
fractions of shares shall be issued upon conversion of
shares of this Series. If more than one share of this
Series shall be surrendered for conversion at one time by
the same holder, the number of full shares of Class A
Common Stock which shall be issuable upon conversion of
such shares shall be computed on the basis of the
aggregate number of shares of this Series surrendered for
conversion. If any fraction of a share of Class A Common
Stock would, except for the provisions of this
Section 7(c), be issuable on the conversion of any shares
of this Series, the Corporation shall make payment in lieu
thereof in an amount of United States dollars equal to the
value of such fraction computed on the basis of the
closing price of the Class A Common Stock as reported on
the Composite Tape for New York Stock Exchange - Listed
Stocks (or if the Class A Common Stock is not listed or
admitted to trading on such exchange on the Date of
Conversion, then on the principal national or regional
securities exchange on which the Class A Common Stock is
then listed or admitted to trading, or, if not listed or
admitted to trading on any national or regional securities
exchange, then as reported by the National Association of
Securities Dealers, Inc. through NASDAQ or a similar
organization if NASDAQ is no longer reporting information)
on the last Trading Day prior to the Date of Conversion or
if no such sale takes place on such day, the last sale
price for such day shall be the average of the closing bid
and asked prices regular way on the New York Stock
Exchange (or if the Class A Common Stock is not listed or
admitted to trading on such exchange, on the principal
national securities exchange on which the Class A Common
Stock is then listed or admitted to trading, or, if not
listed or admitted to trading on any national securities
exchange, the average of the highest bid and lowest asked
prices as reported by the National Association of
Securities Dealers, Inc. through NASDAQ or a similar
organization if NASDAQ is no longer reporting information)
(any such last sale price being herein referred to as the
"Last Sale Price"). If on such Trading Day the Class A
Common Stock is not quoted by any such organization, the
fair value of such Class A Common Stock on such day, as
determined by the Board of Directors, shall be used. For
the purpose of this subsection (c), the term "Trading Day"
shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday, other than any day on which securities are not
traded on such exchange or in such market.
(d) The Conversion Price per share of Class A
Common Stock issuable upon conversion of shares of this
Series (herein called the "Conversion Price") shall
initially be $30.75. The Conversion Price shall be
subject to adjustment from time to time as follows:
(i) In case the Corporation shall (1) pay a
dividend or make a distribution in shares of Class A
Common Stock, (2) subdivide its outstanding shares of
Class A Common Stock into a greater number of shares
or (3) combine its outstanding shares of Class A
Common Stock into a smaller number of shares, the
Conversion Price in effect immediately prior to such
action shall be adjusted so that the holder of any
shares of this Series thereafter surrendered for
conversion shall be entitled to receive the number of
shares of Class A Common Stock which he would have
owned or have been entitled to receive immediately
following such action had such shares been converted
immediately prior thereto. An adjustment made
pursuant to this subsection (d)(i) shall become
effective immediately, except as provided in
subsection (d)(v) below, after the record date in the
case of a dividend or distribution and shall become
effective immediately after the effective date in the
case of a subdivision or combination.
(ii) In case the Corporation shall issue rights,
warrants or options to all holders of Class A Common
Stock entitling them (for a period not exceeding 45
days from the date of such issuance) to subscribe for
or purchase shares of Class A Common Stock at a price
per share less than the Recent Market Price per share
(as determined pursuant to subsection (d)(iv) below)
of the Class A Common Stock on the record date
mentioned below, the Conversion Price shall be
adjusted to a price, computed to the nearest cent, so
that the same shall equal the price determined by
multiplying:
(1) the Conversion Price in effect
immediately prior to the date of issuance of such
rights or warrants by a fraction, of which
(2) the numerator shall be (A) the number of
shares of Class A Common Stock outstanding on the
date of issuance of such rights, warrants or
options, immediately prior to such issuance, plus
(B) the number of shares which the aggregate
offering price of the total number of shares so
offered for subscription or purchase would
purchase at such Recent Market Price, (determined
by multiplying such total number of shares by the
exercise price of such rights, warrants or
options and dividing the product so obtained by
such Recent Market Price), and of which
(3) the denominator shall be (A) the number
of shares of Class A Common Stock outstanding on
the date of issuance of such rights, warrants or
options, immediately prior to such issuance, plus
(B) the number of additional shares of Class A
Common Stock which are so offered for
subscription or purchase.
Such adjustment shall become effective immediately,
except as provided in subsection (d)(v) below, after
the record date for the determination of holders
entitled to receive such rights and warrants.
(iii) In case the Corporation shall distribute to
all or substantially all holders of Class A Common
Stock evidences of indebtedness, equity securities
(including equity interests in the Corporation's
Subsidiaries (as hereinafter defined)) other than
Class A Common Stock, or other assets (other than cash
dividends paid out of earned surplus of the
Corporation or, if there shall be no earned surplus,
out of net profits for the fiscal year in which the
dividend is made and/or the preceding fiscal year), or
shall distribute to all or substantially all holders
of Class A Common Stock rights or warrants to
subscribe for securities (other than those referred to
in subsection (d)(ii) above), then in each such case
the Conversion Price shall be adjusted so that the
same shall equal the price determined by multiplying:
(1) the Conversion Price in effect
immediately prior to the date of such
distribution by a fraction, of which
(2) the numerator shall be the Recent Market
Price per share (as determined pursuant to
subsection (d)(iv) below) of the Class A Common
Stock on the record date mentioned below less the
then fair market value (as determined by the
Board of Directors, whose determination shall be
conclusive evidence of such fair market value,
and described in a resolution of the Board of
Directors filed with the transfer agent for the
shares of this Series) of the portion of the
assets, evidences of indebtedness and equity
securities so distributed or of such subscription
rights or warrants applicable to one share of
Class A Common Stock, and of which
(3) the denominator shall be such Recent
Market Price per share of the Class A Common
Stock.
Such adjustment shall become effective immediately,
except as provided in subsection (d)(v) below, after
the record date for the determination of stockholders
entitled to receive such distribution. As used
herein, the term "Subsidiary" means (i) any
corporation or other entity of which securities or
other ownership interests having ordinary voting power
to elect a majority of the Board of Directors or other
persons performing similar functions are at the time
directly or indirectly owned by the Corporation or
(ii) any partnership of which more than 50% of the
partnership interests are owned by the Corporation or
any Subsidiary.
(iv) For purposes of any computation under
subsections (d)(ii) and (d)(iii) above, the Recent
Market Price per share of Class A Common Stock on any
date shall be deemed to be the average of the Last
Sale Prices of a share of Class A Common Stock for the
five consecutive Trading Days selected by the
Corporation commencing not more than 20 Trading Days
before and ending not later than the earliest of the
date in question and the date before the "ex" date
with respect to the issuance or distribution requiring
such computation. If on any such Trading Day the
Class A Common Stock is not quoted by any organization
referred to in the definition of Last Sale Price in
Section 7(c), the fair value of the Class A Common
Stock on such day, as determined by the Board of
Directors, shall be used. For purposes of this
paragraph, the term "'ex' date", when used with
respect to any issuance or distribution, means the
first date on which the Class A Common Stock trades
regular way on the principal national securities
exchange on which the Class A Common Stock is listed
or admitted to trading (or, if not so listed or
admitted, on NASDAQ or a similar organization if
NASDAQ is no longer reporting trading information)
without the right to receive such issuance or
distribution.
(v) In any case in which this subsection (d) shall
require that an adjustment be made immediately
following a record date, the Corporation may elect to
defer the effectiveness of such adjustment (but in no
event until a date later than the effective time of
the event giving rise to such adjustment), in which
case the Corporation shall, with respect to any shares
of this Series converted after such record date and
before such adjustment shall have become effective (1)
defer paying any cash payment pursuant to Section 7(c)
hereof or issuing to the holder of shares of this
Series the number of shares of Class A Common Stock
issuable upon conversion in excess of the number of
shares of Class A Common Stock issuable thereupon only
on the basis of the Conversion Price prior to
adjustment and (2) not later than five business days
after such adjustment shall have become effective, pay
to such holder the appropriate cash payment pursuant
to Section 7(c) hereof and issue to such holder the
additional shares of Class A Common Stock issuable on
such conversion.
(vi) No adjustment in the Conversion Price shall
be required unless such adjustment would require an
increase or decrease of at least 1% in the Conversion
Price; provided, that any adjustments which by reason
of this subsection (d)(vi) are not required to be made
shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this
Section 7 shall be made to the nearest cent or to the
nearest one-hundredth of a share, as the case may be.
(vii) Whenever the Conversion Price is adjusted as
herein provided, the Corporation shall promptly (1)
file with the transfer agent for the shares of this
Series a certificate of an officer of the Corporation
(an "Officers' Certificate") setting forth the
Conversion Price after such adjustment and setting
forth in reasonable detail the facts requiring such
adjustment and the calculations on which the
adjustment is based, which certificate shall be
conclusive evidence of the correctness of such
adjustment and (2) mail or cause to be mailed a notice
of such adjustment to each holder of shares of this
Series at his address as the same appears on the
registry books of the Corporation.
Notwithstanding anything in this Section 7 to the
contrary, the Corporation shall be entitled to make such
reductions in the Conversion Price, in addition to those
required by this Section 7, as it in its discretion shall
determine to be advisable in order that any stock
dividend, subdivision or combination of shares,
distribution of rights or warrants to purchase stock or
securities, distribution of securities convertible into or
exchangeable for stock, or distribution of assets (other
than cash dividends) hereafter made by the Corporation to
its stockholders shall not be taxable.
(e) In case of any reclassification or change of
outstanding shares of Class A Common Stock (other than a
change in par value, or from par value to no par value, or
from no par value to par value, or as a result of a
subdivision or combination), or in case of any
consolidation of the Corporation with, or merger of the
Corporation into, any other Person, or any merger of
another Person into the Corporation (other than a merger
which does not result in any reclassification, change,
conversion, exchange or cancellation of outstanding shares
of Class A Common Stock) or any sale or transfer of all or
substantially all of the assets of the Corporation, the
Corporation, or the Person formed by such consolidation or
resulting from such merger or which acquires such assets,
as the case may be, shall make effective provision in the
articles or certificate of incorporation, providing that
the holder of each share of this Series then outstanding
shall have the right thereafter to convert such share only
into the kind and amount of securities, cash and other
property receivable upon such reclassification, change,
consolidation, merger, sale or transfer, by a holder of
the number of shares of Class A Common Stock into which
such shares of this Series might have been converted
immediately prior to such reclassification, change,
consolidation, merger, sale or transfer, assuming such
holder of Class A Common Stock of the Corporation (i) is
not a Person with which the Corporation consolidated or
into which the Corporation merged or which merged into the
Corporation or to which such sale or transfer was made, as
the case may be ("constituent Person"), or an Affiliate
(as hereinafter defined) of a constituent Person and (ii)
failed to exercise his rights of election, if any, as to
the kind or amount of securities, cash and other property
receivable upon such reclassification, change,
consolidation, merger, sale or transfer (provided that if
the kind or amount of securities, cash and other property
receivable upon such reclassification, change,
consolidation, merger, sale or transfer is not the same
for each share of Class A Common Stock of the Corporation
held immediately prior to such reclassification, change,
consolidation, merger, sale or transfer by others than a
constituent Person or an Affiliate thereof and in respect
of which such rights of election shall not have been
exercised ("non-electing share"), then for the purpose of
this subsection (e) the kind and amount of securities,
cash and other property receivable upon such
reclassification, change, consolidation, merger, sale or
transfer by each non-electing share shall be deemed to be
the kind and amount so receivable per share by a plurality
of the non-electing shares). Such articles or certificate
of incorporation shall provide for adjustments which, for
events subsequent to the effective date of such articles
or certificate of incorporation, shall be as nearly
equivalent as may be practicable to the adjustments
provided for herein. The above provisions of this
subsection (e) shall similarly apply to successive
reclassifications, changes, consolidations, mergers, sales
or transfers.
For the purpose of this subsection (e), the term
"Person" means any individual, Corporation, partnership,
joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof,
and the term "Affiliate" of any specified Person means any
other Person directly or indirectly controlling or
controlled by or under direct or indirect common control
with such specified Person. For the purposes of the
definition of "Affiliate", the term "control" when used
with respect to any specified Person means the power to
direct the management and policies of such Person,
directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative
to the foregoing.
(f) The Corporation shall reserve, free from
preemptive rights, out of its authorized but unissued
shares, sufficient shares of Class A Common Stock to
provide for the conversion of the shares of this Series
from time to time outstanding as such shares of this
Series are presented for conversion.
(g) The Corporation covenants that all shares of
Class A Common Stock which may be issued upon conversion
of shares of this Series will upon issue be duly and
validly issued, fully paid and nonassessable by the
Corporation and except as provided in Section 9 hereof
free from all taxes, liens and charges with respect to the
issue thereof.
8. Notice of Certain Events. In case:
(a) the Corporation shall declare a dividend (or
any other distribution) payable to the holders of Class A
Common Stock (otherwise than cash dividends paid out of
the earned surplus of the Corporation or, if there shall
be no earned surplus, out of net profits for the fiscal
year in which the dividend is made and/or the preceding
fiscal year, and dividends payable in Class A Common
Stock); or
(b) the Corporation shall authorize the granting
to the holders of Class A Common Stock of rights to
subscribe for or purchase any shares of stock of any class
or of any other rights or warrants; or
(c) the Corporation shall authorize any
reclassification or change of the Class A Common Stock
(other than a subdivision or combination of its
outstanding shares of Class A Common Stock or a change in
par value, or from par value to no par value, or from no
par value to par value), or any consolidation, merger or
share exchange to which the Corporation is a party and for
which approval of any stockholders of the Corporation is
required, or the sale or conveyance of all or
substantially all the property or business of the
Corporation; or
(d) there shall be proposed any voluntary or
involuntary dissolution, liquidation or winding-up of the
Corporation;
then, the Corporation shall cause to be filed at the place
or places maintained for the purpose of conversion of
shares of this Series as provided in Section 7(b) hereof,
and shall cause to be mailed to each holder of shares of
this Series, at his address as it shall appear on the
registry books of the Corporation, as promptly as possible
but in any event at least 20 days before the date
hereinafter specified (or the earlier of the dates
hereinafter specified, in the event that more than one
date is specified), a notice stating the date on which (i)
a record is expected to be taken for the purpose of such
dividend, distribution, rights, or warrants, or if a
record is not to be taken, the date as of which the
holders of Class A Common Stock of record to be entitled
to such dividend, distribution, rights, or warrants are to
be determined, or (ii) such reclassification, change,
consolidation, merger, share exchange, sale, transfer,
conveyance, dissolution, liquidation or winding-up is
expected to become effective and the date, if any is to be
fixed, as of which it is expected that holders of Class A
Common Stock of record shall be entitled to exchange their
shares of Class A Common Stock for securities or other
property deliverable upon such reclassification, change,
consolidation, merger, share exchange, sale, transfer,
conveyance, dissolution, liquidation or winding-up.
9. Taxes. The Corporation will pay any and all
documentary, stamp or similar taxes payable to the United
States of America or any political subdivision or taxing
authority thereof or therein in respect of the issue or
delivery of (a) certificates for shares of this Series on
redemption of less than all of the shares represented by
any certificate for such shares surrendered for redemption
or (b) certificates for shares of Class A Common Stock on
redemption or conversion of shares of this Series pursuant
to Section 4 or Section 7 hereof; provided, that the
Corporation shall not be required to pay any tax which may
be payable in respect of any transfer involved in the
issue or delivery of certificates for shares of this
Series or Class A Common Stock, as the case may be, in a
name other than that of the holder of shares of this
Series to be redeemed or converted and no such issue or
delivery shall be made unless and until the person
requesting such issue or delivery has paid to the
Corporation the amount of any such tax or has established,
to the satisfaction of the Corporation, that such tax has
been paid. The Corporation extends no protection with
respect to any other taxes imposed in connection with such
redemption or conversion of shares of this Series.
10. No Other Rights. The shares of this Series
shall not have any relative, participating, optional or
other special rights and powers other than as set forth
herein and other than any which may be provided by law.
IN WITNESS WHEREOF, Freeport-McMoRan Copper &
Gold Inc. has caused its corporate seal to be hereunto
affixed and this Certificate of Designations to be signed
by its Vice President and Secretary as of this 6th day of
July, 1993.
FREEPORT-McMoRan COPPER & GOLD
INC.
By /s/ Stephen M. Jones
Name: Stephen M. Jones
Title: Vice President
(CORPORATE SEAL)
Attest:
By /s/ Michael C. Kilanowski, Jr.
Name: Michael C. Kilanowski, Jr.
Title: Secretary