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EXHIBIT 4.11
CERTIFICATE OF DESIGNATIONS
OF
SERIES E MANDATORY EXCHANGEABLE PREFERRED STOCK
OF
FEDERAL-MOGUL CORPORATION
PURSUANT TO SECTION 21.200(302) OF THE
MICHIGAN BUSINESS CORPORATION ACT
FEDERAL-MOGUL CORPORATION (the "Corporation"), a corporation organized and
existing under the Michigan Business Corporation Act, hereby certifies, pursuant
to Section 21.200(302) of the Michigan Business Corporation Act, that on
February 4, 1998 the following resolution was adopted by the Board of Directors
of the Corporation:
RESOLVED, that, pursuant to the authority granted to and vested in the
Board of Directors of the Corporation (hereinafter referred to as the "Board of
Directors" or the "Board") by the provisions of the Second Restated Articles of
Incorporation, as amended, of the Corporation and the Michigan Business
Corporation Act, the Board of Directors hereby creates a series of Preferred
Stock of the Corporation and hereby states the designation and number of
shares, and fixes the relative rights, preferences and limitations thereof, as
follows:
Section 1. Designation; Number of Shares; Special Purpose.
(a) The shares of this series of Preferred Stock shall be designated as
Series E Mandatory Exchangeable Preferred Stock (the "Exchangeable Preferred
Stock"), and the number of shares constituting such series shall be 1,050,000.
(b) Shares of Exchangeable Preferred Stock shall be issued by the
Corporation only as consideration in connection with the Corporation's
acquisition of certain equity interests pursuant to the Equity Purchase
Agreement (the "Agreement"), dated as of January 9, 1998, by and among the
Corporation and the Sellers named therein, and such shares of Exchangeable
Preferred Stock shall be issued to the Sellers upon the consummation of the
transactions contemplated by the Agreement.
Section 2. Dividends and Distributions.
(a) The holders of outstanding shares of Exchangeable Preferred Stock
shall be entitled to receive, when, as and if declared by the Board of
Directors, out of funds at the time legally available therefor, a cash dividend
(a "Cash Dividend") in an amount equal to $2.40 per share per annum, which
shall be fully cumulative, and shall be payable quarterly in arrears, in an
amount of $0.60 per quarter, on the last day of each of March, June, September
and December (each such date, a "Cash Dividend Payment Date"), commencing on
March 31, 1998, to holders
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of record of Exchangeable Preferred Stock at the start of business on the tenth
Business Day (as defined in Section 8(f) hereof) prior to such Cash Dividend
Payment Date; provided, however, that in the event that the outstanding shares
of Exchangeable Preferred Stock are not exchanged for common stock of the
Corporation ("Common Stock") by the Corporation pursuant to Section 6(a) hereof
on or prior to February 24, 1999, the amount of the Cash Dividend thereafter
shall equal the Increased Dividend Amount for the relevant period, and shall be
payable quarterly in arrears. The amount of the Cash Dividend payable in
respect of any period in which the applicable per annum dividend amount is
increased pursuant to the preceding sentence shall be computed based on the
actual number of days in such period during which each per annum dividend
amount is in effect. The amount of the Cash Dividend payable in respect of the
initial Cash Dividend Payment Date and in respect of any other period shorter
than a full quarterly period shall be computed on the basis of the actual
number of days in such period and the actual number of days in the year. In
the event that any Cash Dividend Payment Date shall fall on any day other than
a Business Day, the dividend payment due on such Cash Dividend Payment Date
shall be paid on the Business Day immediately preceding such Cash Dividend
Payment Date. Cash Dividends shall begin to accrue on outstanding shares of
Exchangeable Preferred Stock from the initial issuance thereof and shall accrue
on a daily basis whether or not the Corporation shall have earnings or surplus
at the time. Unpaid Cash Dividends shall cumulate as of the Cash Dividend
Payment Date on which they first become payable. No interest shall be payable
in respect of any Cash Dividend that may be in arrears. With respect to any
share of Exchangeable Preferred Stock, all accrued and unpaid Cash Dividends to
the Exchange Date (as defined in Section 2(e) hereof) with respect to such
share shall be payable by the Corporation out of funds legally available
therefor on such Exchange Date.
(b) The "Increased Dividend Amount" shall equal: (i) from 12 months after
closing to 13 months after closing, $14.35 per annum, (ii) from 13 months after
closing to 14 months after closing, $16.40 per annum, (iii) from 14 months after
closing to 15 months after closing, $18.45 per annum, (iv) from 15 months after
closing to 16 months after closing, $20.50 per annum, (v) from 16 months after
closing to 17 months after closing, $22.55 per annum, (vi) from 17 months after
closing to 18 months after closing, $24.60 per annum, and (vii) thereafter
$26.65 per annum.
(c) In the event that the Corporation declares or pays or sets apart for
payment any dividend (a "Securities Dividend") with respect to the Common Stock
that is payable in the form of securities of the Corporation (other than
pursuant to a transaction of the type described in Section 8(b) hereof), the
Corporation shall declare or pay or set apart for payment, as the case may be,
a per share dividend (a "Preferred Securities Dividend") with respect to the
Exchangeable Preferred Stock in the same form of the Securities Dividend and
equal to the Securities Dividend paid or declared or set apart for payment, as
the case may be, on that number of shares of Common Stock equal to the number
of shares of Common Stock for which such share of Exchangeable Preferred Stock
would be exchanged (assuming the conditions precedent to such exchange had
occurred in accordance with the terms hereof) pursuant to Section 6 hereof on
the record date for such Securities Dividend. Any Preferred Securities
Dividend shall be payable to the holders of record of Exchangeable Preferred
Stock at the start of business on the record date for the related Securities
Dividend.
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(d) In the event that full cumulative Cash Dividends on the Exchangeable
Preferred Stock and any payable Preferred Securities Dividend have not been
declared and paid or set apart for payment, the Corporation shall not declare
or pay or set apart for payment any dividends or make any other distributions
on, or make any payment on account of the purchase, redemption or other
retirement of the Common Stock until full cumulative Cash Dividends on the
Exchangeable Preferred Stock and any payable Preferred Securities Dividend
shall have been paid or declared and set apart for payment; provided, however,
that the foregoing shall not apply to (i) any dividend payable solely in shares
of Common Stock or in shares of any stock of the Corporation ranking, as to
dividends or as to distributions in the event of a liquidation, dissolution or
winding-up of the Corporation, on parity with or junior to the Exchangeable
Preferred Stock, or (ii) the acquisition of shares of Common Stock either (A)
pursuant to any employee or director incentive or benefit plan or arrangement
of the Corporation or any subsidiary of the Corporation (including any
employment, severance or consulting agreement) heretofore or hereafter adopted,
(B) pursuant to any contractual or other obligation of the Company existing as
of the date of the initial issuance of the Exchangeable Preferred Stock, as the
same may be amended, extended or renewed, or (C) in exchange solely for shares
of Common Stock or any other stock ranking, as to dividends and as to
distributions in the event of a liquidation, dissolution or winding-up of the
Corporation, on parity with or junior to the Exchangeable Preferred Stock.
(e) With respect to any share of Exchangeable Preferred Stock, from and
after the earlier of the effective date of the conversion of such share
pursuant to Section 5 hereof and the Effective Date (such earlier date, the
"Exchange Date"), no dividends shall accrue with respect to such share.
Section 3. Voting Rights. Except as otherwise required by law, holders
of Exchangeable Preferred Stock shall have no voting rights and their consent
shall not be required for the taking of any corporate action; provided,
however, that in the event the Exchangeable Preferred Stock is not exchanged
for Common Stock pursuant to Section 6 hereof on or prior to February 24, 1999,
the holders of Exchangeable Preferred Stock shall thereafter be entitled to
vote with the holders of Common Stock as a single class, and for such purposes,
each share of Exchangeable Preferred Stock shall be treated as equal to the
number of shares of Common Stock for which such share of Exchangeable Preferred
Stock would be exchanged (assuming the conditions precedent to such exchange
had occurred in accordance with the terms hereof) pursuant to Section 6 hereof
on the record date with respect to the matter to be voted upon.
Section 4. Liquidation, Dissolution or Winding-Up.
(a) Upon any voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation, the holders of Exchangeable Preferred Stock
shall be entitled to receive out of assets of the Corporation which remain
after satisfaction in full of all valid claims of creditors of the Corporation
and which are available for payment to stockholders, and subject to the rights
of the holders of any stock of the Corporation ranking senior to or on parity
with the Exchangeable Preferred Stock in respect of distributions upon
liquidation, dissolution or winding-up of the
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Corporation, an amount per share of Exchangeable Preferred Stock equal to the
amount that shall be paid or distributed with respect to the number of shares
of Common Stock for which such share of Exchangeable Preferred Stock would be
exchanged pursuant to Section 6 hereof (assuming the conditions precedent to
such exchange had occurred in accordance with the terms hereof) on the record
date for such payment or distribution, rounded to the nearest one-tenth of a
share; it being understood that whenever the Exchange Ratio is adjusted as
provided in Section 8 hereof, the rights of the holders of Exchangeable
Preferred Stock to receive distributions and payments pursuant to this Section
4(a) shall be similarly adjusted. The holders of shares of Exchangeable
Preferred Stock shall be treated as holders of the number of shares of Common
Stock for which such shares of Exchangeable Preferred Stock would then be
exchanged pursuant to Section 6 hereof (assuming the conditions precedent to
such exchange had occurred in accordance with the terms hereof) for all
purposes in connection with determining the payments and distributions such
holders may be entitled to pursuant to this Section 4(a), including, without
limitation, the determination of the aggregate and per share amounts to be
distributed to the holders of Common Stock and Exchangeable Preferred Stock.
(b) Neither the merger or consolidation of the Corporation with or into
any other corporation, nor the merger or consolidation of any other corporation
with or into the Corporation, nor the sale, lease, transfer or other exchange
of all or any portion of the assets of the Corporation, shall be deemed to be a
dissolution, liquidation or winding-up of the affairs of the Corporation for
purposes of this Section 4.
Section 5. Optional Conversion into Common Stock.
(a) In the event the Corporation makes a Qualified Public Offering (as
defined below), each holder of shares of Exchangeable Preferred Stock shall be
entitled to have a number of shares (determined pursuant to Section 5(b)
hereof) of Exchangeable Preferred Stock converted upon the closing of such
Qualified Public Offering into shares of Common Stock for the purpose of the
secondary sale of such shares of Common Stock in such Qualified Public
Offering; provided, however, that, with respect to any shares of Common Stock
to be included in any over-allotment option granted in connection with such
Qualified Public Offering, the corresponding shares of Exchangeable Preferred
Stock shall be converted into Common Stock only upon the closing of a sale
pursuant to such over-allotment option. Shares of Exchangeable Preferred Stock
to be converted into Common Stock in connection with a Qualified Public
Offering shall be converted at the Exchange Ratio in effect at the time of the
closing of the Qualified Public Offering; provided, however, that, with respect
to any shares of Common Stock to be included in any over-allotment option
granted in connection with such Qualified Public Offering, the corresponding
shares of Exchangeable Preferred Stock shall be converted at the Exchange Ratio
in effect at the time of the closing of a sale pursuant to such over-allotment
option. The term "Qualified Public Offering" shall mean the first underwritten
offering of Common Stock made by the Corporation for its own account after the
date hereof and prior to January 1, 1999 pursuant to an effective registration
statement under the Securities Act of 1933, as amended (the "Securities Act").
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(b) In the event that the Corporation proposes to file a registration
statement under the Securities Act with respect to a Qualified Public Offering,
the Corporation shall give written notice (the "Offering Notice") of such
proposed filing to the holders of Exchangeable Preferred Stock at least 21 days
prior to the anticipated filing date. The maximum aggregate number of shares of
Common Stock which holders may receive upon conversion of Exchangeable
Preferred Stock in connection with the Qualified Public Offering shall equal
the aggregate number of shares of Common Stock that is to be sold by holders of
Exchangeable Preferred Stock in such Qualified Public Offering and in the
over-allotment option granted to the underwriters in connection with such
Qualified Public Offering.
(c) Within 14 days after the Offering Notice is given, any holder that
elects to have shares of Exchangeable Preferred Stock converted into shares of
Common Stock pursuant to this Section 5 shall surrender the certificate or
certificates representing such shares of Exchangeable Preferred Stock, duly
assigned or endorsed for transfer to the underwriters of the Qualified Public
Offering (or accompanied by duly executed stock powers relating thereto), at
the principal executive office of the Corporation or such other place as the
Corporation shall direct. Such shares shall be accompanied by a signed notice
of conversion which shall state that such holder elects to convert shares
pursuant to, and in accordance with, this Section 5 and shall specify (i) the
number of shares of Exchangeable Preferred Stock such holder elects to convert,
(ii) the name or names in which a check or checks from the underwriters shall
be made payable in consideration for any shares of Common Stock sold in the
Qualified Public Offering and in which a new certificate or certificates
representing shares of Exchangeable Preferred Stock not converted shall be
issued, and (iii) the address to which such holder wishes delivery to be made
of such checks and certificates.
(d) On the closing date of the Qualified Public Offering or the closing
date of the sale pursuant to the related over-allotment option, as the case may
be, the Corporation shall issue and send to the managing underwriter or
underwriters or to the designee of the managing underwriter or underwriters, in
the name and at the address designated by the managing underwriter or
underwriters, a certificate or certificates representing the number of shares
of Common Stock into which shares of Exchangeable Preferred Stock shall have
been converted pursuant to this Section 5. In the event that there shall have
been surrendered a certificate or certificates representing shares of
Exchangeable Preferred Stock only a portion of which are converted pursuant to
this Section 5, after the closing or expiration of any over-allotment option
granted in connection with the Qualified Public Offering, the Corporation shall
issue and deliver to the surrendering holder of such shares or such holder's
designee a new certificate or certificates representing the number of shares of
Exchangeable Preferred Stock which shall not have been converted.
(e) The issuance by the Corporation of shares of Common Stock upon a
conversion of shares of Exchangeable Preferred Stock pursuant to this Section 5
shall be effective as of the closing of the Qualified Public Offering or the
closing of the related over-allotment option, as the case may be. On and after
the effective date of such conversion, the person or persons entitled to
receive the Common Stock issuable upon such conversion shall be treated for all
purposes as the record holder or holders of such shares of Common Stock, but no
payment, allowance or
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adjustment shall be made in respect of dividends or distributions
payable to holders of Common Stock the record date for which coincides with or
is prior to such effective date. In the event a proposed Qualified Public
Offering is not completed or a sale pursuant to the related over-allotment
option is not made, as the case may be, the shares of Exchangeable Preferred
Stock that a holder elected to convert into Common Stock in connection with
such proposed offering or such over-allotment option, as the case may be, shall
not be converted to Common Stock, and the certificates for such shares of
Exchangeable Preferred Stock shall be returned to the holder that surrendered
such shares to the Corporation.
(f) The Corporation shall not be obligated to deliver to holders of
Exchangeable Preferred Stock any fractional share or shares of Common Stock
issuable upon any conversion of such shares of Exchangeable Preferred Stock,
but in lieu thereof may make a cash payment in respect thereof in any manner
permitted by law.
Section 6. Mandatory Exchange.
(a) On the earlier of (i) the date which is fifteen business days after
the date on which the Corporation receives from the holders of at least
two-thirds of the outstanding shares of Exchangeable Preferred Stock written
consents to the exchange of Exchangeable Preferred Stock for Common Stock
pursuant to this Section 6(a), (ii) the effective date of the registration
statement filed in connection with the first request for registration pursuant
to Section 2(a) of the Registration Agreement, and (iii) February 24, 1999, all
outstanding shares of Exchangeable Preferred Stock shall be exchanged by the
Corporation for shares of Common Stock at the Exchange Ratio in effect at the
time such exchange is consummated, which exchange shall be effective as of such
date; provided, however, that no shares of Exchangeable Preferred Stock shall
be exchanged for shares of Common Stock until the Corporation's Second Restated
Articles of Incorporation have been amended to authorize additional shares of
Common Stock for issuance; and provided, further, that in the event that by
operation of the preceding proviso the Exchangeable Preferred Stock has not
been exchanged for Common Stock by February 24, 1999, all outstanding shares of
Exchangeable Preferred Stock shall be exchanged by the Corporation for shares
of Common Stock on the date which is fifteen business days after the date on
which the Corporation's Second Restated Articles of Incorporation are amended
to authorize additional shares of Common Stock for issuance.
(b) At least 5 days prior to the effective date (the "Effective Date") of
the exchange made pursuant to this Section 6, the Corporation shall give
written notice (an "Exchange Notice") of such exchange and the Effective Date
to the Sellers' Representatives. On or after the Effective Date, the
Corporation shall issue, upon surrender at the Corporation's principal
executive office or such other place as the Corporation shall direct of a
certificate representing a share or shares of Exchangeable Preferred Stock, to
the holder of such Exchangeable Preferred Stock or to such holder's designee,
at the address designated by such holder, a certificate or certificates for the
number of shares of Common Stock to which such holder shall be entitled upon
such exchange.
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(c) On and after the Effective Date, the person or persons entitled to
receive the Common Stock issuable upon the exchange made pursuant to this
Section 6 shall be treated for all purposes as the record holder or holders of
such shares of Common Stock, but no payment, allowance or adjustment shall be
made in respect of dividends or distributions payable to holders of Common
Stock the record date for which coincides with or is prior to such Effective
Date.
(d) The Corporation shall not be obligated to deliver to holders of
Exchangeable Preferred Stock any fractional share or shares of Common Stock
issuable upon the exchange of such shares of Exchangeable Preferred Stock, but
in lieu thereof may make a cash payment in respect thereof in any manner
permitted by law.
(e) So long as the Corporation uses its best efforts to take such steps
as are necessary so that the Corporation's Second Amended Restated Articles of
Incorporation are amended to authorize additional shares of Common Stock, in
the event the Exchangeable Preferred Stock is not exchanged for shares of
Common Stock pursuant to Section 6(a) hereof on or prior to February 24, 1999,
the exclusive remedy available to holders of Exchangeable Preferred Stock shall
be the right to receive the Increased Dividend Amount pursuant to Section 2(a)
hereof.
Section 7. Consolidation, Merger and Similar Transactions.
In the event that the Corporation shall consummate any consolidation,
merger, recapitalization or similar transaction, however named, pursuant to
which the outstanding shares of Common Stock are exchanged for or changed,
reclassified or converted into other stock or securities or cash or any other
property, or any combination thereof, outstanding shares of Exchangeable
Preferred Stock shall, without any action on the part of the Corporation or any
holder thereof, be automatically converted by virtue of such transaction, into
the right to receive, on the same terms as apply to the holders of Common
Stock, the aggregate amount of stock, securities, cash or other property
(payable in like kind) receivable by a holder of the number of shares of Common
Stock for which such shares of Exchangeable Preferred Stock would have been
exchanged immediately prior to such transaction (assuming the conditions
precedent to such exchange had occurred in accordance with the terms hereof),
based on the Exchange Ratio then in effect. In the event that, in connection
with such transaction, the holders of Common Stock may elect the kind of stock,
securities, cash or other property receivable upon such transaction, the
holders of Exchangeable Preferred Stock shall have the same rights and
obligations with respect to such election as apply to the holders of Common
Stock, and the failure of a holder of shares of Exchangeable Preferred Stock to
exercise any such rights will result in such shares of Exchangeable Preferred
Stock being converted in the same manner as would shares of Common Stock, the
holder of which had failed to exercise such rights.
Section 8. Exchange Ratio; Anti-Dilution Adjustments.
(a) The term "Exchange Ratio" shall mean, at any time, that number of
shares of Common Stock into which a share of Exchangeable Preferred Stock is
convertible or for which a share of Exchangeable Preferred Stock is
exchangeable pursuant to Section 5 or Section 6,
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respectively, at such time. Upon issuance of the Exchangeable Preferred Stock,
the Exchange Ratio shall equal 5.
(b) In the event the Corporation shall, at any time or from time to time
while any of the shares of the Exchangeable Preferred Stock are outstanding,
(i) pay a dividend or make a distribution in respect of the Common Stock in
shares of Common Stock, (ii) subdivide the outstanding shares of Common Stock
into a greater number of shares, or (iii) combine the outstanding shares of
Common Stock into a smaller number of shares, in each case whether by
reclassification of shares, recapitalization of the Corporation (including a
recapitalization to which Section 7 hereof does not apply), or otherwise, the
Exchange Ratio in effect immediately prior to such action shall be adjusted by
multiplying such Exchange Ratio by a fraction, the numerator of which is the
number of shares of Common Stock outstanding immediately after such event, and
the denominator of which is the number of shares of Common Stock outstanding
immediately before such event. An adjustment made pursuant to this Section
8(b) shall be given effect, in the case of the payment of such a dividend or
distribution, as of the record date for the determination of shareholders
entitled to receive such dividend or distribution, and in the case of a
subdivision or combination, immediately as of the effective date thereof.
(c) Notwithstanding any other provisions of this Section 8, the
Corporation shall not be required to make any adjustment of the Exchange Ratio
unless such adjustment would require an increase or decrease of at least one
percent (1%) in the Exchange Ratio. Any lesser adjustment shall be carried
forward and shall be made no later than the earlier of (i) the time of the next
subsequent adjustment which, together with any adjustment or adjustments so
carried forward, shall amount to an increase or decrease of at least one
percent (1%) in the Exchange Ratio (in which case such adjustments shall be
aggregated and effected simultaneously), and (ii) immediately prior to the
exchange of Exchangeable Preferred Stock made pursuant to Section 6 hereof.
(d) If the Corporation shall make any dividend or distribution on the
Common Stock or issue any Common Stock, other capital stock or other security
of the Corporation or any rights or warrants to purchase or acquire any such
security, which transaction does not result in an adjustment to the Exchange
Ratio pursuant to the foregoing provisions of this Section 8, the Board of
Directors shall in its sole discretion consider whether such action is of such
a nature that an adjustment to the Exchange Ratio should equitably be made in
respect of such transaction. If in such case the Board of Directors determines
that an adjustment to the Exchange Ratio should be made, an adjustment shall be
made as determined by the Board of Directors of the Corporation. The
determination of the Board of Directors as to whether an adjustment to the
Exchange Ratio should be made pursuant to the foregoing provisions of this
Section 8(d), and, if so, as to what adjustment should be made and when, shall
be final and binding on the Corporation and all stockholders of the
Corporation.
(e) Whenever an adjustment to the Exchange Ratio is required pursuant to
this Resolution, the Corporation shall forthwith place on file with the
transfer agent for the Common Stock and the Exchangeable Preferred Stock, if
any, and with the Secretary of the Corporation, a statement signed by an
officer of the Corporation stating the adjusted Exchange Ratio determined
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as provided herein of the Exchangeable Preferred Stock. Promptly after each
adjustment to the Exchange Ratio, the Corporation shall mail a notice thereof
and of the then prevailing Exchange Ratio to the Sellers' Representatives.
(f) The term "Business Day" shall mean a day that is not a Saturday,
Sunday or a day on which state or federally chartered banking institutions in
Detroit, Michigan or Chicago, Illinois are authorized to close.
Section 9. Ranking; Outstanding Shares; Retirement of Shares.
(a) Except as set forth in Section 2 hereof, the Exchangeable Preferred
Stock shall rank in parity with the Common Stock as to payment of dividends and
the distribution of assets on liquidation, dissolution and winding-up of the
Corporation, and unless otherwise provided in the Second Restated Articles of
Incorporation of the Corporation, as the same may be amended from time to time,
or a Certificate of Designations relating to a subsequent series of Preferred
Stock of the Corporation, the Exchangeable Preferred Stock shall rank junior to
all other series of the Corporation's Preferred Stock as to payment of
dividends and the distribution of assets on liquidation, dissolution or
winding-up of the Corporation; provided, however, that the Corporation shall
not designate a series of the Corporation's preferred stock that would prohibit
the exchange of Exchangeable Preferred Stock as provided herein or the payment
of dividends thereon as provided herein.
(b) For purposes of this Resolution, prior to the Effective Date, all
shares of Exchangeable Preferred Stock issued by the Corporation shall be
deemed outstanding except (i) from the date of the closing of a Qualified
Public Offering or the closing of a sale pursuant to the related over-allotted
option, as the case may be, all shares of Exchangeable Preferred Stock
converted to Common Stock in connection with such Qualified Public Offering or
such over-allotment option, as the case may be, pursuant to Section 5 hereof,
and (ii) from the date of registration of transfer, all shares of Exchangeable
Preferred Stock held of record by the Corporation or any majority-owned
subsidiary of the Corporation. On and after the Effective Date, no shares of
Exchangeable Preferred Stock shall be deemed outstanding, regardless of whether
certificates representing such shares have been delivered to the Corporation
for cancellation.
(c) Any shares of Exchangeable Preferred Stock acquired by the
Corporation by reason of the conversion or exchange of such shares as provided
by this Resolution, or otherwise so acquired, shall be canceled as shares of
Exchangeable Preferred Stock and restored to the status of authorized but
unissued shares of Preferred Stock of the Corporation, undesignated as to
series, and may thereafter be reissued as part of a new series of such
Preferred Stock as permitted by law.
Section 10. Miscellaneous.
(a) All notices referred to herein shall be given in writing, by first
class mail postage prepaid, overnight courier or facsimile and shall be deemed
effective upon receipt. Notices to the
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Corporation, shall be addressed to its office at 26555 Northwestern Highway,
Southfield, Michigan, 48034 (Attention: Secretary), facsimile (248) 354-7999.
Notices to the Sellers' Representatives shall be addressed to the address of
such Representatives as it appears from time to time on the books and records
of the Corporation.
(b) The Corporation shall pay any and all stock transfer and documentary
stamp taxes that may be payable in respect of any issuance or delivery of
shares of Exchangeable Preferred Stock or shares of Common Stock or other
securities issued on account of Exchangeable Preferred Stock pursuant hereto or
certificates representing such shares or securities. The Corporation shall
not, however, be required to pay any such tax which may be payable in respect
of any transfer involved in the issuance or delivery of shares of Exchangeable
Preferred Stock or Common Stock or other securities in a name other than that
in which the shares of Exchangeable Preferred Stock with respect to which such
shares or other securities are issued or delivered were registered, or in
respect of any payment to any person with respect to any such shares or
securities other than a payment to the registered holder thereof, and shall not
be required to make any such issuance, delivery or payment unless and until the
person otherwise entitled to such issuance, delivery or payment 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 or is not payable.
(c) In the event that a holder of shares of Exchangeable Preferred Stock
shall not by written notice designate the name in which shares of Common Stock
to be issued upon conversion of such shares should be registered or to whom
payment upon redemption of shares of Exchangeable Preferred Stock should be
made or the address to which the certificate or certificates representing such
shares, or such payment, should be sent, the Corporation shall be entitled to
register such shares, and make such payment, in the name of the holder of such
Exchangeable Preferred Stock as shown on the records of the Corporation and to
send the certificate or certificates representing such shares, or such payment,
to the address of such holder shown on the records of the Corporation.
(d) Unless otherwise provided in the Second Restated Articles of
Incorporation, as the same may be amended, of the Corporation, all payments in
the form of dividends, distributions on voluntary or involuntary dissolution,
liquidation or winding-up or otherwise made upon the shares of Exchangeable
Preferred Stock and any other stock ranking on a parity with the Exchangeable
Preferred Stock with respect to such dividend or distribution shall be made pro
rata, so that amounts paid per share on the Exchangeable Preferred Stock and
such other stock shall in all cases bear to each other the same ratio that the
required dividends, distributions or payments, as the case may be, then payable
per share on the shares of the Exchangeable Preferred Stock and such other
stock bear to each other.
(e) The Corporation may appoint, and from time to time discharge and
change, a transfer agent for the Exchangeable Preferred Stock. Upon any such
appointment or discharge of a transfer agent, the Corporation shall send notice
thereof to each holder of record of Exchangeable Preferred Stock.
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(f) The Corporation may amend this Resolution and the related Certificate
of Designations from time to time as permitted by law; provided, however, that
no such amendment adverse to the holders of Exchangeable Preferred Stock may be
made without the written consent of the holders of a majority of the
outstanding shares of Exchangeable Preferred Stock.
(g) The Corporation shall use its best efforts to take such steps as are
necessary so that the Common Stock into which Exchangeable Preferred Stock is
converted pursuant to Section 5 hereof or for which Exchange Preferred Stock is
exchanged pursuant to Section 6 hereof, shall be duly authorized and validly
issued, and fully paid and nonassessable.
IN WITNESS WHEREOF, I have executed and subscribed this Certificate of
Designations and do affirm the foregoing as true under the penalties of perjury
this 20th day of February, 1998.
/s/ Thomas W. Ryan
Name: THOMAS W. RYAN
Title: Senior Vice President and
Chief Financial Officer
Attest:
/s/ David A. Bozynski
Name: DAVID A. BOZYNSKI
Title: Vice President and Treasurer
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