State of Delaware
Office of the Secretary of State
________________________________
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF
DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT
COPY OF THE CERTIFICATE OF STOCK DESIGNATION OF "VIACOM INC."
FILED IN THIS OFFICE ON THE EIGHTEENTH DAY OF NOVEMBER, A.D.
1993, AT 10:30 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO
NEW CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING.
* * * * * * * * * * *
________________________________________
William T. Quillen, Secretary of State
AUTHENTICATION: *4153016
DATE: 11/18/1993
CERTIFICATE OF THE DESIGNATIONS, POWERS, PREFERENCES
AND RELATIVE, PARTICIPATING OR OTHER RIGHTS, AND THE
QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS THEREOF, OF
SERIES B CUMULATIVE CONVERTIBLE PREFERRED STOCK
($0.01 Par Value)
OF
VIACOM INC.
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Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
-----------------
VIACOM, INC., a Delaware corporation (the "Corporation"),
does hereby certify that the following resolutions were duly
adopted by the Board of Directors of the Corporation pursuant to
authority conferred upon the Board of Directors by Article IV of
the Restated Certificate of Incorporation of the Corporation,
which authorizes the issuance of up to 100,000,000 shares of
preferred stock, and by the Securities Committee of the Board of
Directors pursuant to authority conferred upon such Committee by
the Board of Directors in accordance with Section 141(c) of the
General Corporation Law of the State of Delaware and Article
Section 11 of the By-Laws of the Corporation at a meeting of the
Board of Directors duly held on September 28, 1993:
RESOLVED, that the issue of a series of preferred stock,
$0.01 par value, of the Corporation is hereby authorized and the
designation, powers, preferences and relative, participating,
optional or other special rights, and qualifications, limitations
or restrictions thereof, in addition to those set forth in the
Restated Certificate of Incorporation of the Corporation, are
hereby fixed as follows:
(1) Number of Shares and Designation. 24,000,000 shares of
--------------------------------
the preferred stock, $0.01 par value, of the Corporation are
hereby constituted as a series of the preferred stock designated
as Series B Cumulative Convertible Preferred Stock (the "Series B
Preferred Stock"). The number of shares of Series B Preferred
Stock may not be increased and may not be decreased below the
number of then currently outstanding shares of Series B Preferred
Stock.
(2) Definitions. For purposes of the Series B Preferred
-----------
Stock, the following terms shall have the meanings indicated:
"Board of Directors" shall mean the board of directors
of the Corporation or any committee authorized by such Board
of Directors to perform any of its responsibilities with
respect to the Series B Preferred Stock.
"Business Day" shall mean any day other than a
Saturday, Sunday or a day on which banking institutions in
the State of New York are authorized or obligated by law or
executive order to close.
"Class A Stock" shall mean the Class A Common Stock of
the Corporation, par value $0.01 per share.
"Common Stock" shall mean the Class B Common Stock of
the Corporation, par value $0.01 per share.
"Conversion Price" shall mean the conversion price per
share of Common Stock for which the Series B Preferred Stock
is convertible, as such Conversion Price may be adjusted
pursuant to Section (7). The initial Conversion Price will
be $70.00 (equivalent to the rate of .7143 of a share of
Common Stock for each share of Series B Preferred Stock).
"Current Market Price" shall mean, as of a particular
date, the closing sale price at which Common Stock shall
have been sold regular way on the American Stock Exchange or
such other exchange or inter-dealer quotation system on
which the Common Stock is principally traded or authorized
to be quoted.
"Dividend Periods" shall mean quarterly dividend
periods commencing on the first day of October, January,
April and July of each year and ending on and including the
day preceding the first day of the next succeeding Dividend
Period (other than the initial Dividend Period which shall
commence on the Issue Date and end on and include December
31, 1993).
"Issue Date" shall mean the first date on which shares
of Series B Preferred Stock are issued.
"Person" shall mean any individual, firm, partnership,
corporation or other entity, and shall include any successor
(by merger or otherwise) of such entity.
"Securities" shall have the meaning set forth in
paragraph (d)(iii) of Section (7) hereof.
"Trading Day" means a day on which the American Stock
Exchange, or such other exchange or inter-dealer quotation
system on which the Common Stock is principally traded or
authorized to be quoted, is open for the transaction of
business.
"Transaction" shall have the meaning set forth in
paragraph (e) of Section (7) hereof.
"Transfer Agent" means the First Chicago Trust Company
of New York or such other agent or agents of the Corporation
as may be designated by the Board of Directors of the
Corporation as the transfer agent for the Series B Preferred
Stock.
(3) Dividends. (a) The holders of shares of the Series B
---------
Preferred Stock shall be entitled to receive, when and if
declared by the Board of Directors out of funds legally available
therefor, cash dividends at the rate per annum of $2.50 per share
of Series B Preferred Stock. Such dividends shall be cumulative
from the Issue Date, whether or not in any Dividend Period or
Periods there shall be funds of the Company legally available for
the payment of such dividends, and shall be payable quarterly,
when and as declared by the Board of Directors, on the first
Business Day of January, April, July and October of each year,
commencing on January 1, 1994 or at such additional times and for
such interim periods, if any, as determined by the Board of
Directors. Each such dividend shall be payable in arrears to the
holders of record of shares of the Series B Preferred Stock, as
they appear on the stock records of the Corporation at the close
of business on such record dates, not more than 60 days preceding
the payment dates thereof, as shall be fixed by the Board of
Directors. Accrued and unpaid dividends for any past Dividend
Periods may be declared and paid at any time, without reference
to any regular dividend payment date, to holders of record on
such date, not exceeding 45 days preceding the payment date
thereof, as may be fixed by the Board of Directors. Accrued and
unpaid dividends for any past Dividend Periods shall accrue
interest at the Base Rate as announced from time to time by
Citibank, N.A., which interest, until paid, shall be treated for
all purposes of this Certificate of Designation as accrued and
unpaid dividends.
(b) The amount of dividends payable for each full Dividend
Period for the Series B Preferred Stock shall be computed by
dividing the annual dividend rate by four. The amount of
dividends payable for the initial Dividend Period on the Series B
Preferred Stock, or any other period shorter or longer than a
full Dividend Period on the Series B Preferred Stock shall be
computed on the basis of twelve 30-day months and a 360-day year.
Except as provided in Section 5(a), holders of shares of Series B
Preferred Stock called for redemption on a redemption date
between a dividend payment record date and the dividend payment
date shall not be entitled to receive the dividend payable on
such dividend payment date. Holders of shares of Series B
Preferred Stock shall not be entitled to any dividends, whether
payable in cash, property or stock, in excess of cumulative
dividends, as herein provided, on the Series B Preferred Stock.
(c) So long as any shares of the Series B Preferred Stock
are outstanding, no dividends, except as described in the next
succeeding sentence, shall be declared or paid or set apart for
payment on any class or series of stock of the Corporation
ranking, as to dividends, on a parity with the Series B Preferred
Stock, for any period, nor shall any shares ranking on a parity
with the Series B Preferred Stock be redeemed or purchased by the
Corporation or any Subsidiary, unless full cumulative dividends
have been or contemporaneously are declared and paid or declared
and a sum sufficient for the payment thereof set apart for such
payment on the Series B Preferred Stock for all Dividend Periods
terminating on or prior to the date of payment of such full
cumulative dividends. When dividends are not paid in full or a
sum sufficient for such payment is not set apart, as aforesaid,
upon the shares of the Series B Preferred Stock and any other
class or series of stock ranking on a parity as to dividends with
the Series B Preferred Stock, all dividends declared upon shares
of the Series B Preferred Stock and all dividends declared upon
such other stock shall be declared pro rata so that the amounts
of dividends per share declared on the Series B Preferred Stock
and such other stock shall in all cases bear to each other the
same ratio that accrued dividends per share on the shares of the
Series B Preferred Stock and such other stock bear to each other.
(d) So long as any shares of the Series B Preferred Stock
are outstanding, no dividends (other than dividends or
distributions paid in shares of, or options, warrants or rights
to subscribe for or purchase shares of Common Stock, Class A
Stock or other stock ranking junior to the Series B Preferred
Stock, as to dividends and upon liquidation) shall be declared or
paid or set apart for payment or other distribution declared or
made upon the Common Stock, Class A Stock or any other stock of
the Corporation ranking junior to the Series B Preferred Stock,
as to dividends or upon liquidation nor shall any Common Stock,
nor any Class A Stock nor any other such stock of the Corporation
ranking junior to the Series B Preferred Stock, as to dividends
or upon liquidation be redeemed, purchased or otherwise acquired
for any consideration (or any moneys be paid to or made available
for a sinking fund for the redemption of any shares of any such
stock) by the Corporation (except by conversion into or exchange
for stock of the Corporation ranking junior to the Series B
Preferred Stock, as to dividends and upon liquidation) or any
Subsidiary unless, in each case (i) the full cumulative dividends
on all outstanding shares of the Series B Preferred Stock and any
other stock of the Corporation ranking on a parity with the
Series B Preferred Stock, as to dividends or upon liquidation
shall have been paid or set apart for payment for all past
Dividend Periods and dividend periods with respect to such other
stock and (ii) sufficient funds shall have been set apart for the
payment of the dividend for the current Dividend Period with
respect to the Series B Preferred Stock and the dividend period
with respect to any other stock of the Corporation ranking on a
parity with the Series B Preferred Stock, as to dividends or upon
liquidation.
(4) Liquidation Preference. (a) In the event of any
----------------------
liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, before any payment or
distribution of the assets of the Corporation (whether capital or
surplus) shall be made to or set apart for the holders of Common
Stock, Class A Stock or any other series or class or classes of
stock of the Corporation ranking junior to the Series B Preferred
Stock, upon liquidation, dissolution or winding up, the holders
of the shares of Series B Preferred Stock shall be entitled to
receive $50.00 per share plus an amount equal to all dividends
(whether or not earned or declared) accrued and accumulated and
unpaid thereon to the date of final distribution to such holders;
but such holders shall not be entitled to any further payment.
If, upon any liquidation, dissolution or winding up of the
Corporation, the assets of the Corporation, or proceeds thereof,
distributable among the holders of the shares of Series B
Preferred Stock shall be insufficient to pay in full the
preferential amount aforesaid and liquidating payments on any
other shares of stock ranking, as to liquidation, dissolution or
winding up, on a parity with the Series B Preferred Stock, then
such assets, or the proceeds thereof, shall be distributed among
the holders of shares of Series B Preferred Stock and any such
other stock ratably in accordance with the respective amounts
which would be payable on such shares of Series B Preferred Stock
and any such other stock if all amounts payable thereon were paid
in full. For the purposes of this Section (4), (i) a
consolidation or merger of the Corporation with one or more
corporations, (ii) a sale or transfer of all or substantially all
of the Corporation's assets or (iii) a statutory share exchange
shall not be deemed to be a liquidation, dissolution or winding
up, voluntary or involuntary.
(b) Subject to the rights of the holders of shares of any
series or class or classes of stock ranking on a parity with or
prior to Series B Preferred Stock, upon liquidation, dissolution
or winding up, upon any liquidation, dissolution of winding up of
the Corporation, after payment shall have been made in full to
the holders of Series B Preferred Stock, as provided in this
Section (4), any other series or class or classes of stock
ranking junior to Series B Preferred Stock, upon liquidation,
dissolution or winding up shall, subject to the respective terms
and provisions (if any) applying thereto, be entitled to receive
any and all assets remaining to be paid or distributed, and the
holders of Series B Preferred Stock shall not be entitled to
share therein.
(5) Redemption at the Option of the Corporation. (a)
-------------------------------------------
Series B Preferred Stock may not be redeemed by the Corporation
prior to October 1, 1998, after which the Corporation, at its
option, may redeem the shares of Series B Preferred Stock, in
whole or in part, for an aggregate redemption price of at least
$100,000,000 (provided that no partial redemption shall reduce
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the Series A Preferred Stock outstanding below $100,000,000
aggregate liquidation value) out of funds legally available
therefor, at any time or from time to time, subject to the notice
provisions and provisions for partial redemption described below,
during the 359-day period beginning on October 1, 1998 and during
the twelve-month periods beginning on October 1 of the years
beginning with 1998 shown below at the following redemption
prices plus an amount equal to accrued and unpaid dividends, if
any, to the date fixed for redemption, whether or not earned or
declared:
Year Price
---- -------
1998 . . . . . . . . . . . . . . . $52.50
1999 . . . . . . . . . . . . . . . $52.00
2000 . . . . . . . . . . . . . . . $51.50
2001 . . . . . . . . . . . . . . . $51.00
2002 . . . . . . . . . . . . . . . $50.50
2004 and thereafter . . . . . . . . $50.00
(b) In the event that full cumulative dividends on the
Series B Preferred Stock and any other class or series of stock
of the Corporation ranking, as to dividends, on a parity with the
Series B Preferred Stock have not been paid or declared and set
apart for payment, the Series B Preferred Stock may not be
redeemed in part and the Corporation may not purchase or acquire
shares of Series B Preferred Stock or such other stock otherwise
than pursuant to a purchase or exchange offer made on the same
terms to all holders of shares of Series B Preferred Stock and
such other stock.
(c) In the event the Corporation shall redeem shares of
Series B Preferred Stock, notice of such redemption shall be
given by first class mail, postage prepaid, mailed not less than
10 nor more than 60 days prior to the redemption date, to each
holder of record of the shares to be redeemed, at such holder's
address as the same appears on the stock records of the
Corporation, which notice shall be unconditional and irrevocable.
Each such notice shall state: (1) the redemption date; (2) the
number of shares of Series B Preferred Stock to be redeemed and,
if less than all the shares held by such holder are to be
redeemed, the number of such shares to be redeemed from such
holder; (3) the redemption price; (4) the place or places where
certificates for such shares are to be surrendered for payment of
the redemption price; (5) the then current conversion price; and
(6) that dividends on the shares to be redeemed shall cease to
accrue on such redemption date. Notice having been mailed as
aforesaid, from and after the redemption date (unless default
shall be made by the Corporation in providing money for the
payment of the redemption price), (i) dividends on the shares of
the Series B Preferred Stock so called for redemption shall cease
to accrue, (ii) said shares shall no longer be deemed to be
outstanding, and (iii) all rights of the holders thereof as
stockholders of the Corporation (except the right to receive from
the Corporation the redemption price without interest thereon
after the redemption date) shall cease. The Corporation's
obligation to provide moneys in accordance with the preceding
sentence shall be deemed fulfilled if, on or before the
redemption date, the Corporation shall deposit with a bank or
trust company (which may be an affiliate of the Corporation)
having an office in the Borough on Manhattan, City of New York,
and having a capital and surplus of at least $50,000,000, funds
necessary for such redemption, in trust, with irrevocable
instructions that such funds after the redemption date be applied
to the redemption of the shares of Series B Preferred Stock so
called for redemption. Any interest accrued on such funds after
the redemption date shall be paid to the Corporation from time to
time. Any funds so deposited and unclaimed at the end of two
years from such redemption date shall be released or repaid to
the Corporation, after which, subject to any applicable laws
relating to escheat or unclaimed property, the holder or holders
of such shares of Series B Preferred Stock so called for
redemption shall look only to the Corporation for payment of the
redemption price.
Upon surrender in accordance with said notice of the
certificates for any such shares so redeemed (properly endorsed
or assigned for transfer, if the Board of Directors shall so
require and the notice shall so state), such shares shall be
redeemed by the Corporation at the applicable redemption price
aforesaid. If fewer than all the outstanding shares of Series B
Preferred Stock are to be redeemed, shares to be redeemed shall
be selected by the Corporation from outstanding shares of Series
B Preferred Stock not previously called for redemption by lot or
pro rata (as nearly as may be) or by any other method determined
by the Corporation in its sole discretion to be equitable. If
fewer than all the shares represented by any certificate are
redeemed, a new certificate shall be issued representing the
unredeemed shares without cost to the holder thereof.
(6) Shares to be Retired. All shares of Series B Preferred
--------------------
Stock purchased or redeemed by the Corporation or converted shall
be retired and cancelled and shall be restored to the status of
authorized but unissued shares of preferred stock, without
designation as to series.
(7) Conversion. Holders of shares of Series B Preferred
----------
Stock shall have the right to convert all or a portion of such
shares into shares of Common Stock, as follows:
(a) Subject to and upon compliance with the provisions of
this Section (7), a holder of shares of series B Preferred Stock
shall have the right, at his or her option, at any time to
convert such shares into the number of fully paid and
nonassessable shares of Common Stock (calculated as to each
conversion to the nearest 1/100th of a share) obtained by
dividing the aggregate liquidation preference of such shares by
the Conversion Price and by surrender of such shares so to be
converted, such surrender to be made in the manner provided in
paragraph (b) of this Section (7); provided, however, that the
right to convert shares called for redemption pursuant to Section
(5) shall terminate at the close of business on the date fixed
for such redemption, unless the Corporation shall default in
making payment of the amount payable upon such redemption. Any
share of Series B Preferred Stock may be converted, at the
request of its holder, in part into Common Stock. If a part of a
share of Series B Preferred Stock is converted, then the
Corporation will convert such share into the requested shares of
Common Stock (subject to paragraph (c) of this Section (7)) and
issue a fractional share of Series B Preferred Stock evidencing
the remaining interest of such holder.
(b) In order to exercise the conversion right, the holder
of each share of Series B Preferred Stock to be converted shall
surrender the certificate representing such share, duly endorsed
or assigned to the Corporation or in blank, at the office of the
Transfer Agent in the Borough of Manhattan, City of New York,
accompanied by written notice to the Corporation that the holder
thereof elects to convert Series B Preferred Stock or a specified
portion thereof. Unless the shares issuable on conversion are to
be issued in the same name as the name in which such share of
Series B Preferred Stock is registered, each share surrendered
for conversion shall be accompanied by instruments of transfer,
in form satisfactory to the Corporation, duly executed by the
holder or such holder's duly authorized attorney and an amount
sufficient to pay any transfer or similar tax (or evidence
reasonably satisfactory to the Corporation demonstrating that
such taxes have been paid).
Holders of shares of Series B Preferred Stock at the close
of business on a dividend payment record date shall be entitled
to receive the dividend payable on such shares (except that
holders of shares called for redemption on a redemption date
between such record date and the dividend payment date shall not
be entitled to receive such dividend on such dividend payment
date) on the corresponding dividend payment date notwithstanding
the conversion thereof following such dividend payment record
date and prior to such dividend payment date. However, shares of
Series B Preferred Stock surrendered for conversion during the
period between the close of business on any dividend record date
and the opening of business on the corresponding dividend payment
date (except shares called for redemption on a redemption date
during such period) 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 Series B Preferred Stock on
a dividend record date who (or whose transferee) tenders any such
shares for conversion into shares of Common Stock on such
dividend payment date will receive the dividend payable by the
Corporation on such shares of Series B Preferred Stock on such
date, and the converting holder need not include payment of the
amount of such dividend upon surrender of shares of Series B
Preferred Stock for conversion. Except as provided above, the
Corporation shall make no payment or allowance for unpaid
dividends, whether or not in arrears, on converted shares or for
dividends on the shares of Common Stock issued upon such
conversion.
As promptly as practicable after the surrender of
certificates for shares of Series B Preferred Stock as aforesaid,
the Corporation shall issue and shall deliver at such office to
such holder, or on his or her written order, a certificate or
certificates for the number of full shares of Common Stock
issuable upon the conversion of such shares in accordance with
the provisions of this Section (7), and any fractional interest
in respect of a share of Common Stock arising upon such
conversion shall be settled as provided in paragraph (c) of this
Section (7).
Each conversion shall be deemed to have effected immediately
prior to the close of business on the date on which the
certificates for shares of Series B Preferred Stock shall have
been surrendered and such notice received by the Corporation as
aforesaid, and the person or persons in whose name or names any
certificate or certificates for shares of Common Stock shall be
issuable upon such conversion shall be deemed to have become the
holder or holders of record of the shares represented thereby at
such time on such date and such conversion shall be at the
Conversion Price in effect at such time on such date, unless the
stock transfer books of the Corporation shall be closed on that
date, in which event such person or persons shall be deemed to
have become such holder or holders of record at the close of
business on the next succeeding day on which such stock transfer
books are open, but such conversion shall be at the Conversion
Price in effect on the date upon which such shares shall have
been surrendered and such notice received by the Corporation.
All shares of Common Stock delivered upon conversions of the
Series B Preferred Stock will upon delivery be duly and validly
issued and fully paid and nonassessable.
(c) No fractional shares or scrip representing fractions of
shares of Common Stock shall be issued upon conversion of the
Series B Preferred Stock. Instead of any fractional interest in
a share of Common Stock which would otherwise be deliverable upon
the conversion for a share of Series B Preferred Stock, the
Corporation shall pay to the holder of such share an amount in
cash (computed to the nearest cent) based upon the Current Market
Price of Common Stock on the Trading Day immediately preceding
the date of conversion. If more than one share shall be
surrendered for conversion at one time by the same holder, the
number of full shares of Common Stock issuable upon conversion
thereof shall be computed on the basis of the aggregate number of
shares of Series B Preferred Stock so surrendered.
(d) The Conversion Price shall be adjusted from time to
time as follows:
(i) In case the Corporation shall after the Issue Date
(A) pay a dividend or make a distribution on its Common
Stock in shares of its Common Stock, (b) subdivide its
outstanding Common Stock into a greater number of shares,
(C) combine its outstanding Common Stock into a smaller
number of shares or (D) issue any shares of capital stock by
reclassification of its Common Stock, the Conversion Price
in effect immediately prior thereto shall be adjusted so
that the holder of any share of Series B Preferred Stock
thereafter surrendered for conversion shall be entitled to
receive the number of shares of Common Stock of the
Corporation which such holder would have owned or have been
entitled to receive after the happening of any of the events
described above had such share been converted immediately
prior to the happening of such event or the record date
therefor, whichever is earlier. An adjustment made pursuant
to this subparagraph (i) shall become effective immediately
after the close of business on the record date (except as
provided in paragraph (h) below).
(ii) In case the Corporation shall issue after the
Issue Date (a) rights or warrants to all holders of Class A
Stock or Common Stock entitling them (for a period expiring
within 45 days after the record date mentioned below) to
subscribe for or purchase Class A Stock or Common Stock at a
price per share less than the Conversion Price at the record
date for the determination of stockholders entitled to
receive such rights or warrants or (b) shares of Class A
Stock or Common Stock or securities exercisable for
(including rights or warrants other than those referred to
in (a) above and subparagraph (iii) below) or exchangeable
or convertible into shares of Class A Stock or Common Stock
at a price per share (or having an exercise, exchange or
conversion price per share) less than the then current
Conversion Price (other than securities issued in a
transaction in which a pro rata share of such securities
have been reserved by the Corporation for distribution to
the holders of Series B Preferred Stock up conversion), then
in each such case the Conversion Price in effect immediately
prior thereto shall be adjusted to equal the price
determined by multiplying (I) the Conversion Price in effect
immediately prior to the date of issuance of such rights,
warrants or shares of Class A Stock or Common Stock (or
securities exercisable for or exchangeable or convertible
into shares of Class A Stock or Common Stock) by (II) a
fraction, the numerator of which shall be the sum of (A) the
number of shares of Class A Stock or Common Stock
outstanding on the date of issuance of such rights, warrants
or shares of Class A Stock or Common Stock (or securities
exercisable for or exchangeable or convertible into shares
of Class A Stock or Common Stock) (without giving effect to
any such issuance) and (B), in the case of (a) above, the
number of shares which the aggregate proceeds from the
exercise of such rights or warrants for Class A Stock and
Common Stock or, in the case of (b) above, the number of
shares which the aggregate consideration receivable by the
Corporation for the total number of shares of Class A Stock
and Common Stock (or securities exercisable for or
exchangeable or convertible into shares of Class A Stock or
Common Stock) so issued would purchase at the Conversion
Price in effect immediately prior to the date of issuance,
and the denominator of which shall be the sum of (A) the
number of shares of Class A Stock and Common Stock
outstanding on the date of issuance of such rights, warrants
or shares of Class A Stock or Common Stock (or securities
exercisable for or exchangeable or convertible into Class A
Stock or Common Stock) (without giving effect to any such
issuance) and (B), in the case of (a) above, the number of
additional shares of Class A Stock or Common Stock offered
for subscription or purchase or,in the case of (b) above,
the number of shares of Class A Stock and Common Stock so
issued or into which the exercisable, exchangeable or
convertible securities may be exercised, exchanged or
converted. Such adjustment shall be made successively
whenever any such rights, warrants or shares of Class A
Stock or Common Stock (or securities exercisable for or
exchangeable or convertible into Class A Stock or Common
Stock) are issued, and shall become effective immediately
after such record date or, in the case of the issuance of
Class A Stock or Common Stock after the date of issuance
thereof (or in the case of securities exercisable for or
exchangeable or convertible into shares of class A Stock or
Common Stock, the date on which holders may first exercise,
exchange or convert the same in accordance with the
respective terms thereof). In determining whether any
rights or warrants entitled the holders of Class A Stock or
Common Stock to subscribe for or purchase shares of Class A
Stock or Common Stock at less than the Conversion Price in
effect immediately prior to the date of such issuance, and
in determining the aggregate offering price of shares of
Class A Stock or Common Stock (or securities exercisable for
or exchangeable or convertible into shares of Class A Stock
or Common Stock), there shall be taken into account any net
consideration received or receivable by the Corporation upon
issuance and upon exercise of such rights or warrants or
upon issuance of shares of Class A Stock or Common Stock (or
securities exercisable for or exchangeable or convertible
into shares of Class A Stock or Common Stock), the value of
such consideration, if other than cash, to be determined by
the Board of Directors or, if higher, the aggregate
exercise, exchange or conversion price set forth in such
exercisable, exchangeable or convertible securities.
(iii) In case the Corporation shall distribute to
all holders of its Common Stock any shares of capital stock
of the Corporation (other than Common Stock) or evidences of
its indebtedness or assets (other than a regular cash
dividend that the Board of Directors determines, in good
faith, can be maintained by the company for at least four
consecutive periods covering not less than one year and that
the Board of Directors intends to maintain for at least four
consecutive periods covering not less than one year or a
dividend that, together with all dividends paid in the prior
twelve months, does not exceed one percent (1%) of the
aggregate fair market value of the Series B Preferred Stock
and the Common Stock on the date such dividend is declared,
in each case, out of profits or surplus) or rights or
warrants to subscribe for or purchase any of its securities
(excluding those referred to in subparagraph (ii)(a) above)
(any of the foregoing being hereinafter in this subparagraph
(iii) called the "Securities"), then in each such case,
unless the Corporation elects to reserve shares or other
units of such Securities for distribution to the holders of
the Series B Preferred Stock upon the conversion of the
shares of Series b Preferred Stock so that any such holder
converting shares of the Series B Preferred Stock will
receive upon such conversion, in addition to the shares of
the Common Stock to which such holder is entitled, the
amount and kind of such Securities which such holder would
have received if such holder had, immediately prior to the
record date for the distribution of the Securities,
converted his or her shares of Series B Preferred Stock into
Common Stock (such election to be based upon a determination
by the Board of Directors that such reservation will not
materially adversely affect the interests of any holder of
Series B Preferred Stock in any such reserved Securities),
the Conversion Price shall be adjusted so that the same
shall equal the price determined by multiplying (I) the
Conversion Price in effect immediately prior to the date of
such distribution by (II) a fraction, the numerator of which
shall be the Current Market Price per share of the Common
Stock on the record date mentioned below less the then fair
market value (as determined by the Board of Directors, whose
determination shall, if made in good faith, be conclusive)
of the portion of the capital stock or assets or evidences
of indebtedness so distributed or of such rights or warrants
applicable to one share of Common Stock, and the denominator
of which shall be the Current Market Price per share of the
Common Stock. Such adjustment shall become effective
immediately, except as provided in paragraph (h) below,
after the record date for the determination of stockholders
entitled to receive such distribution.
(iv) Notwithstanding anything in subparagraphs (ii) and
(iii) above, if such exercisable, exchangeable or
convertible securities, rights or warrants shall by their
terms provide for an increase or increases with the passage
of time or otherwise in the price payable to the Corporation
upon the exercise thereof, the Conversion Price upon any
such increase becoming effective shall forthwith be
readjusted (but to no greater extent than originally
adjusted by reason of such issuance or sale) to reflect the
same. Upon the expiration or termination of such rights or
warrants, if any such rights or warrants shall not have been
exercised, and upon the expiration or termination of the
exercise, exchange or conversion rights under such
exercisable, exchangeable or convertible securities, if any
such exercisable, exchangeable or convertible securities
shall not have been exercised, exchange or converted, then
the Conversion Price thereof shall forthwith be readjusted
and thereafter be the rate which it would have been had an
adjustment been made on the basis that (x) the only rights
or warrants so issued or sold were those so exercised and
they were issued or sold for the consideration actually
received by the Corporation upon such exercise, plus the
consideration, if any, actually received by the Corporation
upon such exercise, plus the consideration, if any, actually
received by the Corporation for the granting of all such
options, rights or warrants whether or not exercised and (y)
the Corporation issued and sold a number of shares of Common
Stock equal to those actually issued upon exercise of such
exercise, exchange or conversion rights, and such shares
were issued and sold for a consideration equal to the
aggregate exercise, exchange or conversion price in effect
under the exercise, exchange or conversion rights actually
exercised at the respective dates of their exercise. An
adjustment made pursuant to this subparagraph (iv) shall be
made on the next Business Day following the date on which
any such issuance is made and shall be effective immediately
after the close of business on such date, but shall not
affect the Conversion Price applicable to shares of Series B
Preferred Stock converted prior to the date notice of such
adjustment is given to the holders of Series B Preferred
Stock. For purposes of subparagraphs (ii) and (iv), the
aggregate consideration received by the Corporation in
connection with the issuance of shares of Common Stock or of
rights, warrants or securities exercisable for or
exchangeable or convertible into shares of Common Stock
shall be deemed to be equal to the sum of the aggregate net
offering price of all such securities plus the minimum
aggregate amount, if any, payable upon exercise of such
rights or warrants and conversion of any such exercisable,
exchangeable or convertible securities into shares of Common
Stock.
(v) No adjustment in the Conversion Price shall be
required unless such adjustment would require an increase or
decrease of at least 1% in such price; provided, however,
that any adjustments which by reason of this subparagraph
(v) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment; and,
provided further any adjustment shall be required and made
in accordance with the provisions of this Section (7) (other
than this subparagraph (v)) not later than such time as may
be required in order to preserve the tax-free nature of a
distribution to the holders of shares of Common Stock. All
calculations under this Section (7) shall be made to the
nearest cent (with $.005 being rounded upward) or to the
nearest 1/100 of a share (with .005 of a share being rounded
upward), as the case may be. Anything in this paragraph (d)
to the contrary notwithstanding, the Corporation shall be
entitled, to the extent permitted by law, to make such
reductions in the Conversion Price, in addition to those
required by this paragraph (d), as it in its discretion
shall determine to be advisable in order that any stock
dividends, subdivision of shares, distribution of rights or
warrants to purchase stock or securities, or a distribution
of other assets (other than cash dividends) hereafter made
by the Corporation to its stockholders shall not be taxable.
(e) In case the Corporation shall be a party to any
transaction (including without limitation a merger,
consolidation, sale of all or substantially all of the
Corporation's assets or recapitalization of the Common Stock and
excluding any transaction as to which paragraph (d)(i) of this
Section (7) applies) (each of the foregoing being referred to as
a "Transaction"), in each case as a result of which shares of
Common Stock shall be converted into the right to receive stock,
securities or other property (including cash or any combination
thereof), each share of Series B Preferred Stock which is not
converted into the right to receive stock, securities or other
property in connection with such Transaction shall thereafter be
convertible into the kind and amount of shares of stock and other
securities and property receivable (including cash) upon the
consummation of such Transaction by a holder of that number of
shares or fraction thereof of Common Stock into which one share
of Series B Preferred Stock was convertible immediately prior to
such Transaction. The Corporation shall not be a party to any
Transaction unless the terms of such Transaction are consistent
with the provisions of this paragraph (e) and it shall not
consent or agree to the occurrence of any Transaction until the
Corporation has entered into an agreement with the successor or
purchasing entity, as the case may be, for the benefit of the
holders of the Series B Preferred Stock which will contain
provisions enabling the holders of the Series B Preferred Stock
which remains outstanding after such Transaction to convert into
the consideration received by holders of Common Stock at the
Conversion Price immediately after such Transaction. The
provisions of this paragraph (e) shall similarly apply to
successive Transactions.
(f) If:
(i) the Corporation shall declare a dividend (or any
other distribution) on the Common Stock (other than a
regular cash dividend that the Board of Directors determines
can be maintained by the Company for at least four
consecutive periods and that the Board of Directors intends
to maintain for at least four consecutive periods, or a
dividend that, together with all dividends paid in the prior
twelve months, does not exceed one percent (1%) of the
aggregate fair market value of the Series A Preferred Stock
and the Common Stock on the date such dividend is declared,
in each case, out of profits or surplus); or
(ii) the Corporation shall authorize the granting to
the holders of the Common Stock of rights or warrants to
subscribe for or purchase any shares of any class or any
other rights or warrants; or
(iii) there shall be any reclassification of the Common
Stock (other than an event to which paragraph (d)(i) of this
Section (7) applies) or any consolidation or merger to which
the Corporation is a party and for which approval of any
stockholders of the Corporation is required, or the sale or
transfer of all or substantially all of the assets of the
Corporation,
then the Corporation shall cause to be filed with the Transfer
Agent and shall cause to be mailed to the holders of shares of
the Series B Preferred Stock at their addresses as shown on the
stock records of the Corporation, as promptly as possible, but at
least 15 days prior to the applicable date specified in clauses
(A) and (B) below, a notice stating (A) the date on which a
record is to be taken for the purpose of such dividend,
distribution or rights or warrants, or, if a record is not to be
taken, the date as of which the holders of Common Stock of record
to be entitled to such dividend, distribution or rights or
warrants, are to be determined or (B) the date on which such
reclassification, consolidation, merger, sale or transfer is
expected, that holders of Common Stock of record shall be
entitled to exchange their shares of Common Stock for securities
or other property deliverable upon such reclassification,
consolidation, merger, sale or transfer. Failure to give such
notice or any defect therein shall not affect the legality or
validity of the proceedings described in this Section (7).
(g) Whenever the Conversion Price is adjusted as herein
provided, the Corporation shall promptly file with the Transfer
Agent an officers' certificate setting forth the Conversion Price
after such adjustment and setting forth a brief statement of the
facts requiring such adjustment. Promptly after delivery of such
certificate, the Corporation shall prepare a notice of such
adjustment of the Conversion Price setting forth the adjusted
Conversion Price and the date on which such adjustment becomes
effective and shall mail such notice of such adjustment of the
Conversion Price to the holder of each share of Series B
Preferred Stock at his or her last address as shown on the stock
records of the Corporation.
(h) In any case in which paragraph (d) of this Section (7)
provides that an adjustment shall become effective immediately
after a record date for an event, the Corporation may defer until
the occurrence of such event (A) issuing to the holder of any
share of Series B Preferred Stock converted after such record
date and before the occurrence of such event the additional
shares of Common Stock issuable upon such conversion by reason of
the adjustment required by such event over and above the Common
Stock issuable upon such conversion before giving effect to such
adjustment and (B) paying to such holder any amount in cash in
lieu of any fraction pursuant to paragraph (c) of this Section
(7).
(i) For purposes of this Section (7), the number of shares
of Common Stock at any time outstanding shall not include any
shares of Common Stock then owned or held by or for the account
of the Corporation.
(j) Notwithstanding any other provision herein to the
contrary, the issuance of any shares of Common Stock pursuant to
any plan providing for the reinvestment of dividends or interest
payable on securities of the Corporation and the investment of
additional optional amounts in shares of Common Stock under any
such plan at a price per share of at least 95% of Current Market
Price, and the issuance of any shares of Common Stock or options
or rights to purchase such shares pursuant to any employee
benefit plan or program of the Corporation or pursuant to any
option, warrant, right or exercisable, exchangeable or
convertible security (including, but not limited to, Class A
Stock) outstanding as of the date the Series B Preferred Stock
was first designated, shall not be deemed to constitute an
issuance of Common Stock or exercisable, exchangeable or
convertible securities by the Corporation to which this Section
(7) applies. There shall be no adjustment of the Conversion
Price in case of the issuance of any stock of the Corporation in
a reorganization, acquisition other similar transaction except as
specifically set forth in this Section (7). If any action or
transaction would require adjustment of the Conversion Price
pursuant to more than one paragraph of this Section (7), only one
adjustment shall be made and such adjustment shall be the amount
of adjustment which has the highest absolute value.
(k) In case the Corporation shall take any action affecting
the Common Stock, other than action described in this Section
(7), which in the opinion of the Board of Directors would
materially adversely affect the conversion rights of the holders
of the shares of Series B Preferred Stock, the Conversion Price
for the Series B Preferred Stock may be adjusted, to the extent
permitted by law, in such manner, if any, and at such time, as
the Board of Directors may determine to be equitable in the
circumstances.
(l) The Corporation covenants that it will at all times
reserve and keep available, free from preemptive rights, out of
the aggregate of its authorized but unissued shares of Common
Stock or its issued shares of Common Stock held in its treasury,
or both, for the purpose of effecting conversion of the Series B
Preferred Stock, the full number of shares of Common Stock
deliverable upon the conversion of all outstanding shares of
Series B Preferred Stock not theretofore converted. For purposes
of this paragraph (l), the number of shares of Common Stock which
shall be deliverable upon the conversion of all outstanding
shares of Series B Preferred Stock shall be computed as if at the
time of computation all such outstanding shares were held by a
single holder.
Before taking any action which would cause an adjustment
reducing the Conversion Price below the then par value of the
shares of Common Stock deliverable upon conversion of the Series
B Preferred Stock, the Corporation will take any corporate action
which may, in the opinion of its counsel, be necessary in order
that the Corporation may validly and legally issue fully-paid and
nonassessable shares of Common Stock at such adjusted Conversion
Price.
The Corporation will use all reasonable efforts to list the
shares of Common Stock required to be delivered upon conversion
of the Series B Preferred Stock prior to such delivery, upon the
American Stock Exchange or such other exchange or inter-dealer
quotation system on which the Common Stock is principally traded
or authorized to be quoted.
Prior to the delivery of any securities which the
Corporation shall be obligated to deliver upon conversion of the
Series B Preferred Stock, the Corporation will use all reasonable
efforts to comply with all federal and state laws and regulations
thereunder requiring the registration of such securities with, or
any approval of or consent to the delivery thereof by, any
governmental authority.
(m) The Corporation will pay any and all documentary stamp
or similar issue or transfer taxes payable in respect of the
issue or delivery of shares of Common Stock on conversion of the
Series B Preferred Stock pursuant hereto; provided, however, that
the Corporation shall not be required to pay any tax which may be
payable in respect of any transfer involved in the issue or
delivery of shares of Common Stock in a name other than that of
the holder of the Series B Preferred Stock to be 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 reasonable
satisfaction of the Corporation, that such tax has been paid.
(8) Ranking. Any class or classes of stock of the
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Corporation shall be deemed to rank:
(i) prior to the Series B Preferred Stock, as to
dividends or as to distribution of assets upon liquidation,
dissolution or winding up, if the holders of such class
shall be entitled to the receipt of dividends or of amounts
distributable upon liquidation, dissolution or winding up,
as the case may be, in preference or priority to the holders
of Series B Preferred Stock;
(ii) on a parity with the Series B Preferred Stock, as
to dividends or as to distribution of assets upon
liquidation, dissolution or winding up, whether or not the
dividend rates, dividend payment dates or redemption or
liquidation prices per share thereof be different from those
of the Series B Preferred Stock, if the holders of such
class of stock and the Series B Preferred Stock shall be
entitled to the receipt of dividends or of amounts
distributable upon liquidation, dissolution or winding up,
as the case may be, in proportion to their respective
amounts of accrued and unpaid dividends per share or
liquidation prices, without preference or priority one over
the other; and
(iii) junior to the Series B Preferred Stock, as to
dividends or as to the distribution of assets upon
liquidation, dissolution or winding up, if such stock shall
be Common Stock or Class A Stock or if the holders of Series
B Preferred Stock shall be entitled to receipt of dividends
or of amounts distributable upon liquidation, dissolution or
winding up, as the case may be, in preference or priority to
the holders of shares of such stock.
(9) Voting. Except as herein provided or as otherwise
------
from time to time required by law, holders of Series B Preferred
Stock shall have no voting rights. Whenever, at any time or
times, dividends payable on the shares of Series B Preferred
Stock at the time outstanding shall be in arrears for such number
of Dividend Periods, which Dividend Periods need not be
consecutive, which shall in the aggregate contain not less than
360 days, the holders of Series B Preferred Stock shall have the
exclusive right, voting separately as a class with holders of
shares of any one or more other series of preferred stock ranking
on a parity with the Series B Preferred Stock as to dividends, or
on the distribution of assets upon liquidation, dissolution or
winding up and upon which like voting rights have been conferred
and are exercisable, to elect two directors of the Corporation at
the Corporation's next annual meeting of stockholders and at each
subsequent annual meeting of stockholders. At elections for such
directors, each holder of Series B Preferred Stock shall be
entitled to one vote for each share held (the holders of shares
of any other series of preferred stock ranking on such a parity
being entitled to such number of votes, if any, for each share of
stock held as may be granted to them). Upon the vesting of such
right of the holders of Series B Preferred Stock, the maximum
authorized number of members of the Board of Directors shall
automatically be increased by two and the two vacancies so
created shall be filled by vote of the holders of outstanding
Series B Preferred Stock (either alone or together with the
holders of shares of any one or more other series of preferred
stock ranking on such a parity and having like voting rights) as
hereinafter set forth. The right of holders of Series B
Preferred Stock, voting separately as a class, to elect (either
alone or together with the holders of shares of any one or more
other series of preferred stock ranking on such a parity and
having like voting rights) members of the Board of Directors as
aforesaid shall continue until such time as all dividends
accumulated on Series B Preferred Stock shall have been paid in
full, at which time such right shall terminate, except as herein
or by law expressly provided, subject to revesting in the event
of each and every subsequent default of the character above
mentioned.
If the office of any director elected by the holders of
Series B Preferred Stock, voting as a class, becomes vacant by
reason of death, resignation, retirement, disqualification or
removal from office or otherwise, the remaining director elected
by the holders of Series B Preferred Stock, voting as a class,
may choose a successor who shall hold office for the unexpired
term in respect of which such vacancy occurred. Upon any
termination of the right of the holders of Series B Preferred
Stock to vote for directors as herein provided, the term of
office of all directors then in office elected by Series B
Preferred Stock, voting as a class, shall terminate immediately.
Whenever the term of office of the directors elected by the
holders of Series B Preferred Stock, voting as a class, shall so
terminate and the special voting powers vested in the holders of
Series B Preferred Stock shall have expired, the number of
directors shall be such number as may be provided for in the By-
laws irrespective of any increase made pursuant to the provisions
of this Section (9).
So long as any shares of the Series B Preferred Stock remain
outstanding, the consent of the holders of at least two-thirds of
the shares of Series B Preferred Stock outstanding at the time
given in person or by proxy, either in writing or at any special
or annual meeting, shall be necessary to permit, effect or
validate any one or more of the following:
(a) The authorization, creation or issuance, or any
increase in the authorized or issued amount, of any class or
series of stock ranking prior to Series B Preferred Stock as to
dividends or the distribution or assets upon liquidation,
dissolution or winding up, or
(b) The amendment, alteration or repeal, whether by merger,
consolidation or otherwise, of any of the provisions of the
Restated Certificate of Incorporation of the Corporation which
would materially and adversely affect any right, preference or
voting power of Series B Preferred Stock or of the holders
thereof; provided, however, that any increase in the amount of
authorized preferred stock or the creation and issuance of other
series of preferred stock, or any increase in the amount of
authorized shares of such series or of any other series of
preferred stock, in each case ranking on a parity with or junior
to the Series B Preferred Stock with respect to the payment of
dividends and the distribution of assets upon liquidation,
dissolution or winding up, shall not be deemed to materially and
adversely affect such rights, preferences or voting powers.
The foregoing voting provisions shall not apply if, at or
prior to the time when the act with respect to which such vote
would otherwise be required shall be effected, all outstanding
shares of Series B Preferred Stock shall have been redeemed or
sufficient funds shall have been deposited in trust to effect
such redemption, scheduled to be consummated within three months
after such time.
(10) Record Holders. The Corporation and the Transfer Agent
--------------
may deem and treat the record holder of any shares of Series B
Preferred Stock as the true and lawful owner thereof for all
purposes, and neither the Corporation nor the Transfer Agent
shall be affected by any notice to the contrary.
IN WITNESS WHEREOF, the Corporation has caused this
Certificate to be made under the seal of the Corporation and
signed by Philippe P. Dauman, its Senior Vice President, General
Counsel and Secretary, and attested by Katherine B. Rosenberg,
its Assistant Secretary, this 17th day of November, 1993.
VIACOM INC.
By /s/ Philippe P. Dauman
-------------------------------
Philippe P. Dauman
Senior Vice President,
General Counsel and
Secretary
(Corporate Seal)
Attest:
By /s/ Katherine B. Rosenberg
----------------------------
Katherine B. Rosenberg
Assistant Secretary