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Exhibit 4
CERTIFICATE OF THE POWERS, DESIGNATION,
PREFERENCES, RIGHTS AND LIMITATIONS OF
Convertible Preferred Stock
of
FEDDERS CORPORATION
Pursuant to Section 151 of the General Corporation
Law of the State of Delaware
FEDDERS CORPORATION, a corporation organized and existing
under the laws of the State of Delaware (the "Corporation"), hereby certifies
that, pursuant to the authority contained in Article Third of its Restated
Certificate of Incorporation, as amended, and in accordance with the provisions
of Section 151 of the General Corporation Law of the State of Delaware, the
Board of Directors o(pound) the Corporation at its meeting on [May 31, 1996]
duly adopted a resolution providing for the designation of a series of _________
shares of Convertible Preferred Stock, which resolution is as follows:
RESOLVED, that pursuant to authority conferred upon the Board
of Directors by the Restated Certificate of Incorporation, as amended,
of the Corporation (hereinafter referred to as the "Certificate of
Incorporation"), the Board of Directors does hereby authorize the
designation of a series of Preferred Stock, par value $1.00 per share,
to be known as the Convertible Preferred Stock and to the extent that
the voting powers, designations, preferences and relative,
participating, optional or other special rights, and the
qualifications, limitations and restrictions thereof, are not set forth
in the Certificate of Incorporation, does hereby fix and herein state
and express such voting powers, designations, preferences and relative,
participating, optional and other special rights, and qualifications,
limitations and restrictions thereof, as follows (all terms used herein
which are defined in the Corporation's Certificate of Incorporation
shall have herein the meanings provided therein):
(A) DESIGNATION AND SIZE OF ISSUE
The distinctive designation of the series shall be
"Convertible Preferred Stock" (hereinafter referred to as this "Series"). The
number of shares which shall constitute this Series shall be _________ shares.
Each share of this Series shall have a par value of $1.00.
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(B) DIVIDENDS
(1) The annual rate of dividends payable on each share of
this Series shall be $____.
(2) Dividends shall be payable in cash, quarterly on the
first day of April, July, October and January of each year, commencing [July 1,
1996] (each such date hereinafter referred to as a "Dividend Payment Date"),
except that if such date is not a Business Day (as hereinafter defined), then
such dividend shall be payable on the next succeeding calendar day which is a
Business Day. The amount of dividends payable on shares of this Series for each
full quarterly dividend period shall be computed by dividing by four the annual
rate per share set forth in Section (B)(1). Dividends payable on shares of this
Series for any period less than a full quarterly period shall be computed on the
basis of a 360-day year of twelve 30-day months, Dividends shall be payable to
the record holders of shares of this Series as of the close of business on a
date, not more than sixty (60) days preceding the payment date thereof, fixed by
the Board of Directors of the Corporation. Dividends in arrears may be declared
and paid at any time, without reference to any regular Dividend Payment Date, to
record holders of shares of this Series as of the close of business on a date,
not more than sixty (60) days preceding the payment date thereof, fixed by the
Board of Directors of the Corporation. As used in this resolution, the term
"Business Day" means a day other than Saturday or Sunday and other than a day on
which banking institutions in New York, New York are authorized by law or
executive order to close.
(3) Dividends payable on shares of this Series shall be
cumulative and shall accumulate from the date of issuance of such shares.
Accumulations of dividends shall not bear interest.
(4) Except as hereinafter provided, so long as any shares
of this Series are outstanding, no dividend (other than a dividend in Common
Stock or in any other stock of the Corporation ranking junior to this Series as
to dividends and upon liquidation (collectively, the "Junior Stock")) shall be
declared or paid or set aside for payment, and no other distribution shall be
declared or made, upon the Junior Stock or upon any other stock of the
Corporation ranking on a parity with this Series as to dividends or upon
liquidation, nor shall any Junior Stock nor any other stock of the Corporation
ranking on a parity with this Series 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
Junior Stock of the Corporation), unless, in each case, the full cumulative
dividends on all outstanding shares of this Series shall have been paid or
contemporaneously are declared and paid through the Dividend Payment Date next
preceding the payment date of such dividend or distribution or the date of such
redemption,
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purchase or acquisition. When dividends are not paid in full upon the shares of
this Series and any other stock of the Corporation ranking on a parity as to
dividends with this Series, all dividends declared upon shares of this Series
and any other stock of the Corporation ranking on a parity as to dividends with
this Series shall be declared pro rata so that the amount of dividends declared
per share on this Series and such other stock shall in all cases bear to each
other the same ratio that accrued dividends per share on the shares of this
Series and such other stock bear to each other. Holders of shares of this Series
shall not be entitled to any dividends, whether payable in cash, property or
stock, in excess of full cumulative dividends, as herein provided, on this
Series. No interest, or sum of money in lieu of interest, shall be payable in
respect of any dividend payment or payments on this Series which may be in
arrears.
(C) REDEMPTION
(1) The Corporation, at the option of the Board of
Directors, may redeem at any time or from time to time all or any part of the
outstanding shares of this Series. The redemption price for each share of this
Series called for redemption shall be $6.25 plus unpaid dividends to the
Dividend Payment Date next preceding the date fixed for redemption (the
"Redemption Price"). At the option of the Corporation, the Redemption Price may
be paid, in whole or in part, in cash or in equivalent value of Class A Stock of
the Corporation.
(2) In the event that fewer than all the outstanding shares
of this Series are to be redeemed, the number of shares to be redeemed shall be
determined by the Board of Directors, and the shares to be redeemed shall be
determined by lot or by any other method as may be determined by the Board of
Directors in its sole discretion to be equitable.
(3) In the event the Corporation shall redeem shares of
this Series, notice of such redemption shall be given by first class mail,
postage prepaid, mailed not less than thirty (30) nor more than sixty (60) days
prior to the redemption date, to each record holder of the shares to be
redeemed, at such holder's address as the same appears on the books of the
Corporation. Each such notice shall state: (i) the redemption date; (ii) the
total number of shares 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 to be
redeemed from such holder; (iii) the Redemption Price and the form in which the
Redemption Price is to be paid; (iv) the place or places where certificates for
such shares are to be surrendered for payment of the Redemption Price; (v) that
dividends on the shares to be redeemed will cease to accrue on such redemption
date; and (vi) the conversion rights of the shares to be redeemed, the period
within which conversion rights may be exercised, and the conversion rate at the
time applicable.
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(4) If notice shall have been given as provided in Section
(C)(3) and the Corporation shall have provided moneys at the time and place
specified for the payment of the Redemption Price pursuant to such notice, then
from and after the redemption date, dividends on the shares of this Series so
called for redemption shall cease to accrue, such shares shall no longer be
deemed to be outstanding, and all rights of the holders thereof as stockholders
of the Corporation (except the right to receive from the Corporation the
Redemption Price without interest) shall cease. Upon surrender (in accordance
with the notice) of the certificates for any shares so redeemed (properly
endorsed or assigned for transfer, if the Board of Directors of the Corporation
shall so require and the notice shall so state), such shares shall be redeemed
by the Corporation at the Redemption Price. In case fewer than all the shares
represented by any such certificate are to be redeemed, a new certificate shall
be issued representing the unredeemed shares, without cost to the holder
thereof.
(5) Any shares of this Series which have been redeemed
shall, after such redemption, have the status of authorized but unissued shares
of Preferred Stock, without designation as to series, until such shares are once
more designated as part of a particular series by the Board of Directors.
(6) Notwithstanding the foregoing provisions of this
Section (C), no shares of this Series shall be redeemed, and the Corporation
shall not purchase or otherwise acquire any shares of this Series, unless the
full cumulative dividends on all outstanding shares of this Series and any other
Preferred Stock ranking on a parity with this Series shall have been paid or
contemporaneously are declared and paid through the Dividend Payment Date next
preceding the date of such redemption, purchase or other acquisition.
(D) CONVERSION RIGHTS
(1) Each holder of a share of this Series shall have the
right, at any time, or, as to any share of this Series called for redemption, at
any time prior to the close of business on the date fixed for such redemption,
to convert such share into fully paid and nonassessable shares of Class A Stock
of the Corporation at a rate of one share of Class A Stock, subject to
adjustment as provided in this Section (D).
(2) If any shares of this Series are surrendered for
conversion subsequent to the record date preceding a Dividend Payment Date but
on or prior to such Dividend Payment Date (except shares called for redemption
on a redemption date between such record date or Dividend Payment Date), the
registered holder of such shares at the close of business on such record date
shall be entitled to receive the dividend payable on such shares on such
Dividend Payment Date notwithstanding the conversion thereof. Except as provided
in this Section (D)(2), no adjustments in respect of or payments of
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dividends on shares surrendered for conversion or any dividend on the Class A
Stock issued upon conversion shall be made upon the conversion of any shares of
this Series.
(3) The Corporation shall not be required, in connection
with any conversion of shares of this Series, to issue a fraction of a share of
its Class A Stock, but in lieu thereof the Corporation shall, subject to Section
(D)(6)(f), make a cash payment (calculated to the nearest cent) equal to such
fraction multiplied by the Closing Price per share of the Class A Stock on the
last Trading Day prior to the date of conversion.
(4) Any holder of shares of this Series electing to convert
such shares into Class A Stock shall surrender the certificate or certificates
for such shares at the office of the Transfer Agent therefor (or at such other
place as the Corporation may designate by notice to the holders of shares of
this Series) during regular business hours, duly endorsed to the Corporation or
in blank, or accompanied by instruments of transfer to the Corporation or in
blank, in form satisfactory to the Corporation, and shall give written notice to
the Corporation at such office that such holder elects to convert such shares of
this Series. The Corporation shall, as soon as practicable (subject to Section
(D)(6)(f) hereof) after such deposit of certificates for shares of this Series,
accompanied by the written notice above prescribed and the payment of cash in
the amount required by Section (D)(2), issue and deliver at such office to the
holder for whose account such shares were surrendered, or to his nominee,
certificates representing the number of shares of Class A Stock and the cash, if
any, to which such holder is entitled upon such conversion.
(5) Conversion shall be deemed to have been made as of the
date of surrender of certificates for the shares of this Series to be converted,
and the giving of written notice and payment, as prescribed in Section (D)(4);
and the person entitled to receive the Class A Stock issuable upon such
conversion shall be treated for all purposes as the record holder of such Class
A Stock on such date. The Corporation shall not be required to deliver
certificates for shares of its Class A Stock while the stock transfer books for
such stock or for this Series are duly closed for any purpose, but certificates
for shares of Class A Stock shall be issued and delivered as soon as practicable
after the opening of such books.
(6) The conversion rate shall be adjusted from time to time
as follows:
(a) In case the Corporation shall, at any time or from
time to time while any of the shares of this Series are
outstanding, (i) pay a dividend in shares of its Class A
Stock, (ii) subdivide its outstanding shares of Class A Stock,
or (iii) combine its outstanding shares of Class A Stock into
a smaller number of shares, the conversion rate 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
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number of shares of capital stock of the Corporation which
such holder would have owned or have been entitled to receive
immediately following such action had such shares of this
Series been converted immediately prior thereto. An adjustment
made pursuant to this Section (D)(6)(a) shall become effective
retroactively to immediately after the opening of business on
the day following the record date in the case of a dividend
and shall become effective immediately after the opening of
business on the day following the effective date in the case
of a subdivision or combination. If, as a result of an
adjustment made pursuant to this Section (D)(6)(a), the holder
of any shares of this Series thereafter surrendered for
conversion shall become entitled to receive shares of two or
more classes of capital stock of the Corporation, the Board of
Directors (whose determination shall be conclusive) shall
determine the allocation of the adjusted conversion rate
between or among shares of such classes of capital stock.
(b) In case the Corporation shall, at any time or
from time to time while any of the shares of this Series are
outstanding, issue rights or warrants to all holders of shares
of its Class A Stock entitling them to subscribe for or
purchase shares of Class A Stock (or securities convertible
into or exchangeable for Class A Stock) at a price per share
less than the current market price per share of Class A Stock
(as defined in Section (D)(6)(d)), at such record date, the
conversion rate shall be adjusted so that it shall equal the
rate determined by multiplying the conversion rate in effect
immediately prior to the date of issuance of such rights or
warrants by a fraction, the numerator of which shall be the
number of shares of Class A Stock outstanding on the date of
issuance of such rights or warrants plus the number of
additional shares of Class A Stock offered for subscription or
purchase, and the denominator of which shall be the number of
shares of Class A Stock outstanding on the date of issuance of
such rights or warrants plus the number of shares which the
aggregate offering price of the total number of shares so
offered would purchase at such current market price. For the
purposes of this Section (D)(6)(b), the issuance of rights or
warrants to subscribe for or purchase securities convertible
into Class A Stock shall be deemed to be the issuance of
rights or warrants to purchase the shares of Class A Stock
into which such securities are convertible at an aggregate
offering price equal to the aggregate offering price of such
securities plus the minimum aggregate amount (if any) payable
upon conversion of such securities into shares of Class A
Stock; provided, however, that if all of the shares of Class A
Stock subject to such rights or warrants have not been issued
when such rights or warrants expire, then the conversion price
shall promptly be readjusted to the conversion price which
would then be in effect had the adjustment upon the issuance
of such rights or warrants
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been made on the basis of the actual number of shares of Class
A Stock issued upon the exercise of such rights or warrants.
An adjustment made pursuant to this Section (D)(6)(b) shall
become effective retroactively immediately after the record
date for the determination of stockholders entitled to receive
such rights or warrants.
(c) In case the Corporation shall, at any time or
from time to time while any of the shares of this Series are
outstanding, distribute to all holders of shares of its Class
A Stock evidences of its indebtedness or securities or assets
(excluding cash dividends payable out of consolidated earnings
or retained earnings or dividends payable in shares of Class A
Stock) or rights or warrants to subscribe for securities of
the Corporation or any of its subsidiaries (excluding those
referred to in Section (D)(6)(b)), then in each such case the
conversion rate shall be adjusted so that it shall equal the
rate determined by multiplying the conversion rate in effect
immediately prior to the date of such distribution by a
fraction, the numerator of which shall be the current market
price per share (determined as provided in Section (D)(6)(d))
of the Class A Stock on the record date referred to below, and
the denominator of which shall be such current market price
per share of the Class A Stock less the then fair market value
(as determined by the Board of Directors of the Corporation,
whose determination shall be conclusive) of the portion of the
assets or evidences of indebtedness or securities or assets so
distributed or of such subscription rights or warrants
applicable to one share of Class A Stock. Such adjustment
shall become effective retroactively immediately after the
record date for the determination of stockholders entitled to
receive such distribution.
(d) For the purpose of any computation under Section
(D)(6)(b) and (D)(6)(c), the "current market price" of a share
of Class A Stock on any date shall be the average of the daily
Closing Prices for 10 consecutive Trading Days before the day
in question.
(e) The Corporation shall be entitled to make such
additional adjustments in the conversion price, in addition to
those required by subsections D(6)(a), D(6) (b) and D(6)(c),
as shall be necessary in order that any dividend or
distribution in shares of stock, subdivision or combination of
shares of Common Stock, issuance of rights or warrants,
evidences of indebtedness or assets (other than cash dividends
payable out of consolidated earnings or retained earnings)
referred to above, shall not be taxable to the Stockholders.
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(f) In any case in which this Section (D)(6) shall
require that an adjustment be made retroactively immediately
following a record date, the Corporation may elect to defer
(but only for five (5) Business Days following the filing of
the statement referred to in Section (D)(6)(h)) issuing to the
holder of any shares of this Series converted after such
record date (i) the shares of Class A Stock and other capital
stock of the Corporation issuable upon such conversion over
and above (ii) the shares of Class A Stock and other capital
stock of the Corporation issuable upon such conversion on the
basis of the conversion rate prior to adjustment.
(g) Notwithstanding any other provisions of this
Section (D)(6), the Corporation shall not be required to make
any adjustment of the conversion rate unless such adjustment
would require an increase or decrease of at least 1% in such
rate. Any lesser adjustment shall be carried forward and shall
be made at the time of and together with the next subsequent
adjustment which, together with any adjustment or adjustments
so carried forward, shall amount to an increase or decrease of
at least 1% in such rate.
(h) Whenever an adjustment in the conversion rate is
required, the Corporation shall forthwith place on file with
its Transfer Agent a statement signed by its Chief Executive
Officer, Chief Financial Officer or a Senior Vice President
and by its Secretary, Assistant Secretary or Treasurer,
stating the adjusted conversion rate determined as provided
herein. Such statements shall set forth in reasonable detail
such facts as shall be necessary to show the reason and the
manner of computing such adjustment. Promptly after the
adjustment of the conversion rate, the Corporation shall mail
a notice thereof to each holder of shares of this Series.
(i) The term "Class A Stock" as used in this
resolution means the Corporation's Class A Stock, $1.00 par
value, as the same exists at the date of filing of the
Certificate of Designation relating to this Series or any
other class of stock resulting from successive changes or
reclassifications of such Class A Stock consisting solely of
changes in par value, or from par value to no par value, or
from no par value to par value. In the event that at any time
as a result of an adjustment made pursuant to Section
(D)(6)(a), the holder of any share of this Series thereafter
surrendered for conversion shall become entitled to receive
any shares of the Corporation other than shares of its Class A
Stock, the conversion rate of such other shares so receivable
upon conversion of any share shall be subject to adjustment
from time to time in a manner and on terms as nearly
equivalent as practicable to the
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provisions with respect to Class A Stock contained in
subparagraphs (a) through (g) of this Section (D)(6), and the
provisions of Section (D)(1) through (5) and (7) through (11)
with respect to the Class A Stock shall apply on like or
similar terms to any such other shares.
(7) In case of (a) any reclassification or change of
outstanding shares of Class A Stock issuable upon conversion of shares of this
Series (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 (b) any consolidation or merger of the Corporation with one or more other
corporations (other than a consolidation or merger in which the Corporation is
the continuing corporation and which does not result in any reclassification or
change of outstanding shares of Class A Stock issuable upon conversion of shares
of this Series), or (c) any sale or conveyance to another corporation or other
entity of all or substantially all of the property of the Corporation, then the
Corporation, or such successor corporation or other entity, as the case may be,
shall make appropriate provision so that the holder of each share of this Series
then outstanding shall have the right to convert such share of this Series into
the kind and amount of shares of stock or other securities and property
receivable upon such consolidation, merger, sale, reclassification, change or
conveyance by a holder of the number of shares of Class A Stock into which such
shares of this Series might have been converted immediately prior to such
consolidation, merger, sale, reclassification, change or conveyance, subject to
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section (D). The provisions of this Section
(D)(7) shall apply similarly to successive consolidations, mergers, sales or
conveyances.
(8) Any shares of this Series which shall at any time have
been converted shall, after such conversion, have the status of authorized but
unissued shares of Preferred Stock, without designation as to series until such
shares are once more designated as part of a particular series by the Board of
Directors. The Corporation shall at all times reserve and keep available out of
its authorized but unissued stock, for the purpose of effecting the conversion
of the shares of this Series, such number of its duly authorized shares of Class
A Stock as shall from time to time be sufficient to effect the conversion of all
outstanding shares of this Series; provided, however, that nothing contained
herein shall preclude the Corporation from satisfying its obligations in respect
of the conversion of the shares by delivery of purchased shares of Class A Stock
which are held in the treasury of the Corporation.
(9) If any shares of Class A Stock required to be reserved
for purposes of conversion of shares of this Series hereunder require
registration with or approval of any governmental authority before such shares
may be issued upon conversion, the Corporation shall cause such shares to be
duly registered or approved, as the case may be. The Corporation will endeavor
to list the shares of Class A Stock required to be delivered upon
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conversion of shares of this Series prior to such delivery upon each national
securities exchange upon which the outstanding Class A Stock is listed at the
time of such delivery.
(10) The Corporation shall pay any and all issue or other
taxes that may be payable in respect of any issue or delivery of shares of Class
A Stock on conversion of shares of this Series pursuant hereto. The Corporation
shall not, however, be required to pay any tax which is payable in respect of
any transfer involved in the issue or delivery of Class A Stock in a name other
than that in which the shares of this Series so converted were registered, and
no such issue or delivery shall be made unless and until the person requesting
such issue has paid to the Corporation the amount of such tax, or has
established, to the satisfaction of the Corporation, that such tax has been
paid.
(11) Before taking any action that would result in the
conversion price being less than the then par value of the Class A Stock, the
Corporation shall 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 Class A Stock at the conversion
price.
(12) In the event that all shares of Class A Stock are
converted into Common Stock of the Corporation in accordance with Article Third
(A)(IV) of the Certificate of Incorporation, all references in this Section (D)
to the Class A Stock shall from and after the date of such conversion be deemed
references to the Common Stock.
(E) VOTING
The holders of shares of this Series shall have no voting
rights except as otherwise required under the General Corporation Law of the
State of Delaware.
(F) LIQUIDATION RIGHTS
(1) Upon the dissolution, liquidation or winding up of the
Corporation, whether voluntary or involuntary, the holders of the shares of this
Series shall be entitled to receive out of the assets of the Corporation
available for distribution to stockholders, before any payment or distribution
shall be made on the Junior Stock, the amount of $6.25 per share, plus all
accumulated and unpaid dividends to the date of final distribution.
(2) Neither the sale, lease or exchange (for cash, shares
of stock, securities or other consideration) of all or substantially all the
property and assets of the Corporation nor the merger or consolidation of the
Corporation into or with any other corporation or the merger or consolidation of
any other corporation into or with the Corporation, shall be deemed to be a
dissolution, liquidation or winding up, voluntary or involuntary, for the
purposes of this Section (F).
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(3) After the payment to the holders of the shares of this
Series of the full preferential amounts provided for in this Section (F), the
holders of this Series as such shall have no right or claim to any of the
remaining assets of the Corporation.
(4) In the event the assets of the Corporation available
for distribution to the holders of shares of this Series upon any dissolution,
liquidation or winding up of the Corporation, whether voluntary or involuntary,
shall be insufficient to pay in full all amounts to which such holders are
entitled pursuant to Section (F)(l), no such distribution shall be made on
account of any shares of any other class or series of Preferred Stock ranking on
a parity with the shares of this Series upon such dissolution, liquidation or
winding up unless proportionate distributive amounts shall be paid on account of
the shares of this Series, ratably, in proportion to the full distributable
amounts for which holders of all such parity shares are respectively entitled
upon such dissolution, liquidation or winding up.
(G) PRIORITY
(1) For purposes of this resolution, any stock of any class
or series of the Corporation shall be deemed to rank:
(i) Prior to the shares of this Series, either as to
dividends or upon liquidation, if the holders of such class or
classes shall be entitled to the receipt of dividends or of
amounts distributable upon dissolution, liquidation or winding
up of the Corporation, whether voluntary or involuntary, as
the case may be, in preference or priority to the holders of
shares of this Series;
(ii) On a parity with shares of this Series, either
as to dividends or upon liquidation, whether or not the
dividend rates, Dividend Payment Dates, or redemption or
liquidation prices per share or sinking fund provisions, if
any, are different from those of this Series, if the holders
of such stock are entitled to the receipt of dividends or of
amounts distributable upon dissolution, liquidation or winding
up of the Corporation, whether voluntary or involuntary, in
proportion to their respective dividend rates or liquidation
prices, without preference or priority, one over the other, as
between the holders of such stock and the holders of shares of
this Series; and
(iii) Junior to shares of this Series, either as to
dividends or upon liquidation, if such class or series shall
be Common Stock or if the holders of shares of this Series
shall be entitled to receipt of dividends or of
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amounts distributable upon dissolution, liquidation or winding
up of the Corporation, whether voluntary or involuntary, as
the case may be, in preference or priority to the holders of
shares of such class or series.
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IN WITNESS WHEREOF, Fedders Corporation has caused this certificate to
be signed and attested this ___ day of ________, 1996.
FEDDERS CORPORATION
By
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Title:
Attest:
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Secretary