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Exhibit 3.1
CERTIFICATE OF AMENDMENT OF
THE CERTIFICATE OF INCORPORATION
OF W.R. GRACE & CO.
UNDER SECTION 805 OF THE BUSINESS
CORPORATION LAW
The undersigned, being the Vice President and the Secretary,
respectively, of W.R. Grace & Co., hereby certify that:
1. The name of the corporation is W.R. GRACE & CO. (the "Corporation").
The Corporation was formed under the name W.R. Grace & Co.-New York.
2. The Certificate of Incorporation of the Corporation was filed by the
Department of State on the 23rd day of March, 1988.
3. This Certificate of Amendment has been duly authorized, pursuant to
Section 803 of the Business Corporation Law of the State of New York, by a vote
of at least a majority of the members of the Board of Directors of the
Corporation, followed by the vote of the holders of a majority of all
outstanding shares entitled to vote thereon at a meeting of shareholders duly
called for such purpose.
4. (i) The Certificate of Incorporation is amended to increase the
authorized capital stock from 305,130,000 shares to 405,130,000 shares and to
create a new class of preferred stock, Class D Preferred, consisting of
100,000,000 shares par value $.10 each.
(ii) Article FOURTH, paragraphs (a) and (b) of the Certificate
of Incorporation of the Corporation are hereby amended to be as follows:
(a) The Corporation shall have authority to issue an aggregate
of 405,130,000 shares of capital stock, divided into classes as set
forth in this Article.
(b) The designation of each class of shares which the
Corporation shall be authorized to issue, the authorized number of
shares of each class, and the par value thereof per share, shall be as
follows:
AUTHORIZED
PAR VALUE NUMBER OF
DESIGNATION OF CLASS PER SHARE SHARES
-------------------- --------- ----------
6% Preferred $100 40,000
Class A Preferred $100 50,000
Class B Preferred $100 40,000
Class C Preferred $ 1 5,000,000
Class D Preferred $.10 100,000,000
Common $ 1 300,000,000
5. (i) The Certificate of Incorporation is amended to set forth
the designation, relative rights, preference and limitations of the Class D
Preferred Stock.
(ii) Article FOURTH, paragraph (c) of the Certificate of
Incorporation of the Corporation is hereby amended by the substitution of new
subparagraphs (5) through (7),
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replacing the current subparagraphs (5) through (7) and adding a new paragraph
(8), to be as follows:
(5.) CLASS D PREFERRED STOCK.
SECTION 1. DESIGNATION; NUMBER; LIQUIDATION PREFERENCE.
(a) The shares of Class D Preferred Stock shall also be known as the
"Class D Special Dividend Preferred Stock". The number of shares authorized may
be decreased (but not increased) by the Board of Directors without a vote of
shareholders; provided, however, that such number may not be decreased below
the number of then outstanding shares of Class D Special Dividend Preferred
Stock.
(b) Subject to Section 7, the Class D Special Dividend Preferred Stock
shall have, with respect to rights on liquidation, dissolution or winding up, a
liquidation preference of $.10 per share and with respect to dividend rights
and rights on liquidation, dissolution or winding up, shall rank, subsequent to
all shares of the 6% Preferred Stock, Class a Preferred Stock and Class B
Preferred Stock of the Corporation issued and outstanding as of the Issue Date,
and prior to all other shares of capital stock of the Corporation now or
hereafter authorized including, without limitation, the Class C Preferred Stock
and the Common Stock of the Corporation (collectively, the "Junior Stock").
SECTION 2. DIVIDENDS AND DISTRIBUTIONS.
(a) The holders of shares of Class D Special Dividend Preferred Stock,
in preference to holders of shares of Junior Stock, shall be entitled to
receive, when, as and if declared by the Board of Directors, out of the assets
of the Corporation at the time legally available therefor, a special dividend
(the "Special Dividend") equal, in the aggregate with respect to all shares of
Class D Special Dividend Preferred Stock, to the Special Dividend Amount
("Special Dividend Amount") determined pursuant to the formula set forth below.
Upon such a declaration, and subject to paragraph (d) below, the Special
Dividend shall be payable in cash in annual installments on October 1, 2002
and, thereafter, on October 1 in each of the following years, if applicable
(each such date, a "Payment Date"); and the aggregate amount payable on any
Payment Date shall be equal to the lesser of (i) $100 million or (ii) the
amount of the Special Dividend Amount then remaining unpaid in accordance with
the provisions hereof. Subject to the requirements of applicable law, the
Special Dividend shall be declared in a single declaration irrespective of the
number of installments in which it will be paid. The Special Dividend Amount
shall be publicly announced by Fresenius Medical Care on or before May 1, 2002
(such announcement, the "Public Announcement").
(b) Calculation of the Special Dividend Amount.
(i) The Special Dividend Amount shall be equal to the Target
Face Amount plus the Special Differential, if the Special Differential
is a positive number, and less the absolute value of the Special
Differential, if the Special Differential is a negative number.
(ii) The Special Differential shall be equal to (A) the
Applicable Percentage of the excess of the cumulative actual Adjusted
Cash Flow of Fresenius Medical Care on a consolidated basis for the
five-year period beginning on January 1, 1997 and ending on December 31,
2001 (the "Dividend Accrual Period"), above $3.7 billion less (B) $200
million.
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(iii) The Adjusted Cash Flow of Fresenius Medical Care on a
consolidated basis shall be equal to (A) net income to common
shareholders (without regard to the Special Dividend), plus (B)
depreciation and amortization, plus (C) non-cash restructuring charges,
provisions for impairment in the value of long-term assets, and similar
recorded reserves as of December 31, 2001, all as reflected on Fresenius
Medical Care's consolidated audited financial statements prepared in
accordance with U.S. GAAP, less (D) any after-tax cash expenditures paid
to third parties incurred in connection with the matters underlying the
investigations of NMC and its subsidiaries by the OIG referenced in the
five subpoenas received by NMC from the OIG on October 17, 1995, to the
extent such expenditures are not reflected in net income to common
shareholders during the Dividend Accrual Period.
(iv) The Applicable Percentage shall be 44.8%, which percentage
shall be increased and decreased proportionately to reflect issuances or
repurchases (to the extent that no Special Dividend is payable with
respect to such repurchased shares) of Class D Special Dividend
Preferred Stock following the Reorganization.
(v) Accompanying payment of the Special Dividend shall be a
Certificate of the Chief Financial Officer of Fresenius Medical Care
certifying that the amount of the Special Dividend has been calculated
in accordance with the provisions hereof, together with an opinion of
Fresenius Medical Care's independent public accountant to the same
effect.
(c) The Special Dividend payable pursuant to Section 2(b) shall accrue
on a quarterly and cumulative basis from January 1, 1997, whether or not
declared; each such quarterly accrual shall increase or decrease the Special
Dividend depending upon the quarterly increase or decrease of the Special
Differential. Any payment of the Special Dividend made in an amount less than
the total amount of such Special Dividend at the time payable shall be allocated
pro rata on a share-by-share basis among all shares of Class D Special Dividend
Preferred Stock at the time outstanding. The Board of Directors may fix a
record date for the determination of holders of shares of Class D Special
Dividend Preferred Stock entitled to receive payment of a dividend declared
thereon, which record date shall be no more than 50 days or less than 10 days
prior to the date fixed for the payment thereof.
(d) The Special Dividend shall be paid in cash, except that if the
Common Stock is listed on the NYSE or quoted on the Nasdaq Stock Market, the
Special Dividend, or any portion thereof, may be paid, in the sole discretion
of the Corporation, either (i) in cash, (ii) in Common Stock, based upon the
Market Price as of the record date for such payment, or (iii) any combination
of cash and Common Stock, based upon the Market Price as of the record date for
such payment. All Common Stock issued as a dividend with respect to the Class D
Special Dividend Preferred Stock shall thereupon be duly authorized, validly
issued, fully paid and non-assessable.
(e) If at any time after May 1, 2002 any portion of the Special
Dividend is not declared, or is not paid on the applicable Payment Date, the
Corporation shall not make any Restricted Payment.
SECTION 3. ADJUSTMENTS.
The Board of Directors of the Corporation, with the concurrence of all
of the Independent Directors of Fresenius Medical Care, or a majority of such
Independent Directors if there are three or more, shall make appropriate
adjustments to the provisions of Section 2 hereof to preserve their intended
economic effect, in the light of changes in capitalization, accounting policy
and extraordinary transactions (including without limitation mergers,
consolidations or
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sales of assets). No adjustments of such provisions on account of the foregoing
or otherwise shall be made without the concurrence of a majority of the
Independent Directors of Fresenius Medical Care.
SECTION 4. VOTING RIGHTS.
In addition to any voting rights provided by law, the holders of shares
of Class D Special Dividend Preferred Stock shall have the following voting
rights:
(a) Except as otherwise required by applicable law, each share
of Class D Special Dividend Preferred Stock shall entitle the holder
thereof to vote, in person or by proxy, at each special or annual
meeting of shareholders, on all matters voted on by holders of Common
Stock voting together as a single class with other shares entitled to
vote thereon. With respect to any such vote, each share of Class D
Special Dividend Preferred Stock shall entitle the holder thereof to
cast 1/10 (one-tenth) of a vote.
(b) If on any date after the earlier of (x) the Public
Announcement or (y) May 1, 2002, the Corporation shall have failed to
declare, or shall have failed to pay on the applicable Payment Date, the
full amount of the installment of the Special Dividend then payable on
the Class D Special Dividend Preferred Stock (a "Trigger Event"), then
the number of directors constituting the Board of Directors shall,
without further action, be increased by two and the holders of shares
of Class D Special Dividend Preferred Stock shall have, in addition to
the other voting rights set forth herein with respect to the Class D
Special Dividend Preferred Stock, the exclusive right, voting separately
as a single class, to elect two directors of the Corporation to fill
such newly created directorships, by written consent as provided herein,
or at a special meeting of such holders called as provided herein. Any
such additional directors shall continue as directors (subject to
reelection or removal as provided in Section 4(c)(ii)) and the holders
of Class D Special Dividend Preferred Stock shall have such additional
voting rights until such time as all installments of the Special
Dividend then payable on the Class D Special Dividend Preferred Stock
shall have been declared and paid in full, at which time such
additional directors shall cease to be directors, the number of
directors constituting the Board of Directors shall be reduced by two
and such additional voting rights of the holders of Class D Special
Dividend Preferred Stock shall terminate, subject to revesting upon the
occurrence of each and every subsequent Trigger Event.
(c) (i) The foregoing right of holders of shares of Class D
Special Dividend Preferred Stock to take any action as provided in
Section 4(b) may be exercised at any annual or special meeting of
shareholders in New York, or at a special meeting of holders of shares
of Class D Special Dividend Preferred Stock in New York held for such
purpose or at any adjournment thereof, or by the written consent,
delivered to the Secretary of the Corporation, of the holders of the
minimum number of shares required to take such action. So long as the
right to vote provided for in Section 4(b) continues (and unless such
right has been exercised by written consent of the minimum number of
shares required to take such action), the President of the Corporation
may call, and upon the written request of holders of record of at least
10% of the aggregate outstanding shares of Class D Special Dividend
Preferred Stock addressed to the Secretary of the Corporation at the
principal office of the Corporation, shall call, a special meeting of
the holders of shares of Class D Special Dividend Preferred Stock. Such
meeting shall be called within 30 days after delivery of such request
to the Secretary, and held within 60 days of delivery after such
request or as soon thereafter as practicable at the place and upon the
notice provided by law and in the by-laws of the Corporation.
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(ii) At each meeting of shareholders at which the holders of
shares of Class D Preferred Stock shall have the right, voting
separately as a single class, to elect two directors of the Corporation
as provided in Section 4(b) or to take any other action, the presence
in person or by proxy of the holders of record of one-third of the
aggregate number of shares of Class D Special Dividend Preferred Stock
then outstanding and entitled to vote on the matter shall be necessary
and sufficient to constitute a quorum. At any such meeting or at any
adjournment thereof:
(A) the absence of a quorum of the holders of shares of
Class D Special Dividend Preferred Stock shall not prevent the
election of directors other than those to be elected by the
holders of shares of Class D Special Dividend Preferred Stock,
and the absence of a quorum of the holders of shares of any
other class or series of capital stock shall not prevent the
election of directors to be elected by the holders of shares of
Class D Special Dividend Preferred Stock or the taking of any
action as provided in Section 4(b); and
(B) in the absence of a quorum of the holders of shares
of Class D Special Dividend Preferred Stock, a majority of the
holders of such shares present in person or by proxy shall have
the power to adjourn the meeting as to the actions to be taken
by the holders of shares of Class D Special Dividend Preferred
Stock from time to time and place to place, without notice other
than announcement at the meeting, until a quorum shall be
present.
For taking of any action as provided in Section 4(b) by the holders of
shares of Class D Special Dividend Preferred Stock each such holder shall have
one vote for each share of such stock standing in his name on the transfer books
of the Corporation as of any record date fixed for such purpose or, if no such
date be fixed, at the close of business on the Business Day next preceding the
day on which notice is given, or, if notice is waived, at the close of business
on the Business Day next preceding the day on which the meeting is held;
provided, however, that shares of Class D Special Dividend Preferred Stock held
by the Corporation or any Subsidiary of the Corporation shall not be deemed to
be outstanding for purposes of taking any action as provided in this Section 4.
Each director elected by the holders of shares of Class D Special
Dividend Preferred Stock, as provided in Section 4(b) shall, unless his term
shall expire earlier in accordance with the provisions thereof, or unless he
shall be removed as provided in this Section 4(c)(ii), hold office until the
next annual meeting of shareholders or until his successor, if any, is elected
and qualified.
If any director so elected by the holders of Class D Special Dividend
Preferred Stock shall cease to serve as a director before his term shall expire
(except by reason of the termination of voting rights in accordance with
Section 4(b)), the holders of the Class D Special Dividend Preferred Stock then
outstanding and entitled to vote for such director may, by vote or written
consent as provided herein, elect a successor to hold office for the unexpired
term of the director whose place shall be vacant.
Any director elected pursuant to Section 4(b) may be removed from
office with or without cause by the vote or written consent of the holders of a
majority of the aggregate outstanding shares of Class D Special Dividend
Preferred Stock at the time of removal. A special meeting of the holders of
shares of Class D Special Dividend Preferred Stock for such purpose may be
called in accordance with the procedures set forth in Section 4(c)(i).
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SECTION 5. OPTIONAL REDEMPTION.
(a) (i) The Corporation shall not have any right to redeem any shares
of Class D Special Dividend Preferred Stock prior to the Public Announcement.
Thereafter, the Corporation shall have the right, at its sole option and
election, to redeem (an "Optional Redemption") all or a portion of the shares
of Class D Special Dividend Preferred Stock, on not more than 45 nor less
than 30 days' notice of the date of redemption (any such date an "Optional
Redemption Date"), at a price per share (the "Optional Redemption Price") equal
to the greater of (A) the Liquidation Preference of such share, or (B) an
amount per share equal to any unpaid portion of the Special Dividend, whether
or not declared or payable, on the applicable Optional Redemption Date. The
Optional Redemption Price shall be paid in cash, except that if the Common
Stock is listed on the NYSE or quoted on the Nasdaq Stock Market, the Optional
Redemption Price may be paid, in the sole discretion of the Corporation, either
in (i) cash, (ii) Common Stock, based upon the Market Price as of the record
date for such Optional Redemption, or (iii) any combination of cash and Common
Stock, based upon the Market Price as of the record date for such Optional
Redemption. All Common Stock issued as a redemption amount with respect to the
Class D Special Dividend Preferred Stock shall thereupon be duly authorized,
validly issued, fully paid and nonassessable.
(ii) If the Corporation shall determine to redeem less than all the
shares of Class D Special Dividend Preferred Stock then outstanding pursuant to
Section 5(a)(i), the shares to be redeemed shall be selected pro rata (as
nearly as may be) so that the number of shares redeemed from each holder shall
be in the same proportion of all the shares to be redeemed that the total
number of shares of Class D Special Dividend Preferred Stock then held by such
holder bears to the total number of shares of Class D Special Dividend
Preferred Stock then outstanding.
(b) Notice of any Optional Redemption shall specify the Optional
Redemption Date, the Optional Redemption Price, the place or places of payment,
and that payment (including the amount and terms thereof) will be made upon
presentation and surrender of shares of Class D Special Dividend Preferred
Stock, and shall be given by publication in a newspaper of general circulation
in the Borough of Manhattan, City of New York (if such publication shall be
required by applicable law, rule, regulation or securities exchange
requirement), not less than 30 nor more than 45 days prior to the Optional
Redemption Date; and, in any case, a similar notice shall be mailed at least 30
but not more than 45 days prior to the Optional Redemption Date to each holder
of shares of Class D Special Dividend Preferred Stock, at such holder's address
as it appears on the transfer books of the Corporation. In order to facilitate
the redemption of shares of Class D Special Dividend Preferred Stock, the Board
of Directors may fix a record date for the determination of shares of Class D
Special Dividend Preferred Stock to be redeemed, not more than 50 days nor less
than 45 days prior to the Optional Redemption Date.
(c) On the date of any Optional Redemption that is specified in a
notice given pursuant to Section 5(b), the Corporation shall, and at any time
after such notice shall have been mailed and before the Optional Redemption
Date the Corporation may, deposit for the benefit of the holders of shares of
Class D Special Dividend Preferred Stock the funds necessary for such
redemption with a bank or trust company in the Borough of Manhattan, City of
New York, having a capital and surplus of at least $100,000,000. Any funds so
deposited by the Corporation and unclaimed at the end of two years from the
Optional Redemption Date shall revert to the general funds of the Corporation.
After such reversion, any such bank or trust company shall, upon demand, pay
over to the Corporation such unclaimed amounts and, thereupon, such bank or
trust company shall be relieved of all responsibility in respect thereto and
any holder of shares of Class D Special Dividend Preferred Stock to be redeemed
shall look only to the Corporation for the payment of the Optional Redemption
Price.
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(d) Notice of redemption having been given as aforesaid, upon the
deposit of funds pursuant to Section 5(c) in respect of shares of Class D
Special Dividend Preferred Stock to be redeemed pursuant to Section 5(a),
notwithstanding that any certificates for such shares shall not have been
surrendered for cancellation, from and after the Optional Redemption Date, (i)
the shares represented thereby shall no longer be deemed outstanding, (ii)
dividends thereon shall cease to accrue, and (iii) all rights of the holders of
shares of Class D Special Dividend Preferred Stock to be redeemed shall cease
and terminate, excepting only the right to receive the Optional Redemption
Price therefor; provided, however, that, if the Corporation shall default in
the payment of the Optional Redemption Price, the shares of Class D Special
Dividend Preferred Stock shall thereafter be deemed to be outstanding and the
holders thereof shall have all of the rights of a holder of Class D Special
Dividend Preferred Stock until such time as such default shall no longer be
continuing or shall have been waived by holders of at least 66-2/3% of the then
outstanding shares of Class D Special Dividend Preferred Stock.
(e) Any notice that is mailed as provided in this Section 5 shall be
conclusively presumed to have been duly given, whether or not the holder of
shares of Class D Special Dividend Preferred Stock receives such notice, and
failure to give such notice by mail, or any defect in such notice, to the
holders of any shares designated for redemption shall not affect the validity
of the proceedings for the redemption of any other shares of Class D Special
Dividend Preferred Stock. On or after the Optional Redemption Date, each holder
of the shares called for redemption shall surrender the certificate or
certificates evidencing such shares to the Corporation at the place designated
in such notice and shall thereupon be entitled to receive payment of the
Optional Redemption Price. If less than all the shares evidenced by any such
surrendered certificate are redeemed, a new certificate shall be issued
evidencing the unredeemed shares.
SECTION 6. ACQUIRED SHARES.
Any shares of Class D Special Dividend Preferred Stock acquired by the
Corporation or any of its Subsidiaries in any manner whatsoever shall be
retired and cancelled promptly after the acquisition thereof. All such shares
of Class D Special Dividend Preferred Stock shall upon their cancellation
become authorized but unissued shares of Preferred Stock of the Corporation.
SECTION 7. LIQUIDATION, DISSOLUTION OR WINDING UP.
(a) If the Corporation shall commence a voluntary case or proceeding
under the United States bankruptcy laws or any applicable bankruptcy, insolvency
or similar law of any state or other country, or consent to the entry of an
order for relief in an involuntary case under any such law or to the appointment
of a receiver, liquidator, assignee, custodian, trustee, sequestrator (or other
similar official) of the Corporation or of any substantial part of its property,
or make an assignment for the benefit of its creditors, or admit in writing its
inability to pay its debts generally as they become due, or if a decree or order
for relief or similar decree or order in respect of the Corporation shall be
entered by a court having jurisdiction in the premises in an involuntary case
under the United States bankruptcy laws or any applicable bankruptcy, insolvency
or similar law of any other state or country, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or other similar
official) of the Corporation or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and on account of any
such event the Corporation shall liquidate, dissolve or wind up, or if the
Corporation shall otherwise liquidate, dissolve or wind up, no distribution
shall be made to the holders of shares of Junior Stock unless, prior thereto,
the holders of shares of Class D Special Dividend Preferred Stock shall have
received the Optional Redemption Price.
(b) Neither the consolidation or merger of the Corporation with or
into any other Person nor the sale or transfer of all or any part of the
Corporation's assets for cash, securities
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or other property shall be deemed to be a liquidation, dissolution or winding
up of the Corporation for purposes of this Section 7.
SECTION 8. Definitions.
For the purposes of the Article FOURTH, the following terms shall have
the meanings indicated:
"Adjusted Cash Flow" shall have the meaning ascribed to such term in
Section 2(b)(iii).
"Affiliate" shall have the meaning ascribed to such term in Rule 12b-2
of the General Rules and Regulations under the Exchange Act.
"Applicable Percentage" shall have the meaning ascribed to such term in
Section 2(b)(iv).
"Board of Directors" shall mean the Board of Directors of the
Corporation.
"Business Day" shall mean any day other than a Saturday, Sunday or
other day on which commercial banks in the City of New York are authorized or
required by law or executive order to close.
"Common Stock" shall have the meaning ascribed to such term in Section
1(a) of this Article FOURTH.
"Effective time"shall have the meaning ascribed to such term in the
Reorganization Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Securities and Exchange
Commission thereunder.
"Fresenius Medical Care" shall mean Fresenius Medical Care AG, an
Aktiengesellschaft organized under the laws of the Federal Republic of Germany.
"Independent Directors" shall mean a Fresenius Medical Care director
without a substantial business or professional relationship with either
Fresenius Medical Care, Fresenius AG or any Affiliate of either of the
foregoing, other than as a Fresenius Medical Care director.
"Issue Date" shall mean the date of first issue of Class D Special
Dividend Preferred Stock.
"Junior Stock" shall have the meaning ascribed to such term in Section
1(b) of this Article FOURTH.
"Liquidation Preference," with respect to a share of Class D Special
Dividend Preferred Stock, shall mean $.10.
"Market Price" shall mean, per share of Common Stock, on any date
specified herein, the closing price per share of the Common Stock on such date
published in The Wall Street Journal or, if no such closing price on such date
is published in The Wall Street Journal, the average of the closing bid and
asked prices on such date, as officially reported on the principal national
securities exchange on which the Common Stock is then listed or admitted to
trading, or, if the Common Stock is not then listed or admitted to trading on
any national securities exchange, as quoted by the Nasdaq Stock market.
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"NASD" shall mean the National Association of Securities Dealers, Inc.
"Nasdaq Stock Market" shall mean the National Market System of the
National Association of Securities Dealers, Inc. Automated Quotations System.
"NMC" shall mean National Medical Care, Inc., a Delaware corporation.
"NYSE" shall mean the New York Stock Exchange.
"OIG" shall mean the Office of the Inspector General of the United
States Department of Health and Human Services.
"Optional Redemption" shall have the meaning ascribed to such term in
Section 5(a) of this Article FOURTH.
"Optional Redemption Date" shall have the meaning ascribed to such term
in Section 5(a) of this Article FOURTH.
"Optional Redemption Price" shall have the meaning ascribed to such term
in Section 5(a) of this Article FOURTH.
"Payment Date" shall have the meaning ascribed to such term
in Section 2(a) of this Article FOURTH.
"Person" shall mean any individual, firm, corporation, partnership,
trust, incorporated or unincorporated association, joint venture, joint stock
company, government (or an agency or political subdivision thereof) or other
entity of any kind, and shall include any successor (by merger or otherwise) of
such entity.
"Preferred Stock" shall mean any preferred stock of the Corporation.
"Public Announcement" shall have the meaning ascribed to such term
in Section 2(a) of this Article FOURTH.
"Reorganization" shall have the meaning ascribed to such term in the
Reorganization Agreement.
"Reorganization Agreement" shall mean the Agreement and Plan of
Reorganization dated as of February 4, 1996, as amended and supplemented, by
and among the Corporation, Fresenius AG, a German corporation, and Fresenius
USA, Inc., a Massachusetts corporation.
"Restricted Payment" shall mean any dividend payment or other
distribution of assets, properties, cash, rights, obligations or securities by
the Corporation on account of any shares of Junior Stock or the purchase,
redemption or other acquisition for value by the Corporation or any Subsidiary
of the Corporation of any shares of Junior Stock, except for distributions or
purchases paid exclusively in other Junior Stock.
"Special Differential" shall have the meaning ascribed to such term in
Section 2(b)(ii).
"Special Dividend" shall have the meaning ascribed to such term in
Section 2(a).
"Special Dividend Amount" shall have the meaning ascribed to such term
in Section 2(a).
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"Subsidiary" of any Person shall mean any corporation or other entity
of which a majority of the voting power of the voting equity securities or
equity interest is owned, directly or indirectly, by such Person.
"Target Face Amount" shall mean the sum of $200 million, in the
aggregate with respect to all shares of Class D Special Dividend Preferred
Stock.
"U.S. GAAP" shall mean United States Generally Accepted Accounting
Principles.
"Voluntary Liquidation Event" shall have the meaning ascribed to such
term in Section 7(a).
SECTION 9. PREEMPTIVE RIGHTS.
The holders of Class D Special Dividend Preferred Stock shall not be
entitled to any preemptive or subscription rights in respect of any securities
of the Corporation.
(6) In the event of the liquidation, dissolution or winding up (whether
voluntary or involuntary) of the Corporation, after payment to the holders of
the 6% Preferred Stock, the Class A Preferred Stock, the Class B Preferred
Stock, the Class C Preferred Stock and the Class D Preferred Stock of the
amounts to which such holders shall be entitled, the remaining assets of the
Corporation shall be distributed ratably to the holders of the Common Stock.
(7) Except as may be otherwise required by the laws of the State of New
York, in voting upon all questions each holder of capital stock of the
Corporation shall be entitled to one hundred sixty votes for every share of 6%
Preferred Stock, sixteen votes for every share of Class A Preferred Stock,
sixteen votes for every share of Class B Preferred Stock, 1/10 (one-tenth) of a
vote for each share of Series D Preferred Stock and one vote for every share of
Common Stock held by such holder, and except as may be otherwise required by
such laws, or specified by the Board of Directors with respect to any series of
the Class C Preferred Stock, all shares of stock shall vote as a single class.
(8) Before any stock authorized under this Certificate of Incorporation
but unissued is otherwise offered for sale, it shall first be offered to the
shareholders of the Corporation as follows: holders of 6% Preferred Stock,
Class A Preferred Stock and Class B Preferred Stock shall have the right to
take at par in proportion to their holdings all such additional 6% Preferred
Stock; any increase in Class A Preferred Stock shall be offered at the issue
price to the holders of Class A Preferred Stock and to the holders of Class B
Preferred Stock in proportion to their holdings; any increase in Class B
Preferred Stock shall be offered at the issue price to the holders of Class A
Preferred Stock and to the holders of Class B Preferred Stock in proportion to
their holdings. No holder of any class of capital stock shall be entitled as a
matter of right to be offered any shares of Class C Preferred Stock, Class D
Preferred Stock or Common Stock, or any options, warrants or rights to acquire
Class C Preferred Stock, Class D Preferred Stock or Common Stock, or any
securities convertible into Class C Preferred Stock, Class D Preferred Stock or
Common Stock, which the Corporation may propose to issue.
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11
IN WITNESS WHEREOF, we have signed this Certificate of Amendment on
this 27th day of September, 1996 and we affirm the statements contained therein
as true under penalties of perjury.
/s/ Paul McMahon
-------------------------------
Name: Paul McMahon
Vice President
/s/ Robert B. Lamm
-------------------------------
Name: Robert B. Lamm
Secretary
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