EXHIBIT 4.10
CERTIFICATE OF DESIGNATIONS
OF
SILVER-DENOMINATED PREFERRED STOCK
(Par Value $0.10 Per Share)
OF
FREEPORT-McMoRan COPPER & GOLD INC.
The number, voting powers, designations, preferences,
rights, qualifications, limitations and restrictions of the
corporation's Silver-Denominated Preferred Stock are as set forth
below:
1. Designation. (a) 119,000 shares of Preferred Stock
of the corporation are hereby constituted as a series of
Preferred Stock designated as "Silver-Denominated Preferred
Stock" (hereinafter called "this Series"). Each share of this
Series shall be identical in all respects with the other shares
of this Series. The Board of Directors is authorized to increase
or decrease (but not below the number of shares of this Series
then outstanding) the number of shares of this Series.
(b) Shares of this Series which have been redeemed for
cash as hereinafter provided or purchased by the corporation
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shall be canceled, and shall revert to authorized but unissued
shares of Preferred Stock undesignated as to series, and may be
reissued as a part of this Series or may be reclassified and
reissued as part of a new or existing series of Preferred Stock
to be created by resolution or resolutions of the Board of
Directors, all subject to the conditions or restrictions on
issuance set forth in any resolution or resolutions adopted by
the Board of Directors providing for the issue of such series of
Preferred Stock.
2. Dividends. (a) The holders of shares of this Series
shall be entitled to receive, but only out of funds legally
available therefor, cash dividends as hereinafter provided. Such
dividends shall be paid when, as and if declared by the Board of
Directors on the first day of February, May, August and November
in each year until and including August 1, 2006 (or, if any
shares of this Series remain outstanding after August 1, 2006,
the last such date thereafter on which any shares of this Series
remain outstanding) (each such date being referred to herein as a
"Dividend Payment Date") to holders of record on the record date
determined by the Board of Directors in advance of the payment of
each particular dividend. Such dividends shall be cumulative
from the date of original issuance of the shares of this Series.
(b) So long as any shares of this Series shall be
outstanding, the corporation shall not, unless full cumulative
dividends for all past dividend periods shall have been paid or
declared and set apart for payment upon all outstanding shares of
this Series and the shares of any other class or series of
Preferred Stock (including the Gold-Denominated Preferred Stock,
the Gold-Denominated Preferred Stock, Series II, the Step-Up
Convertible Preferred Stock and the 7% Convertible Exchangeable
Preferred Stock) and any other class or series of stock of the
corporation ranking, as to dividends, on a parity with shares of
this Series (the shares of any other class or series of Preferred
Stock and any other class or series of stock of the corporation
ranking, as to dividends, on a parity with shares of this Series
being herein referred to as "Parity Dividend Stock"), (i)
declare, pay or set apart any amounts for dividends on, or make
any other distribution in cash or other property in respect of,
the Class A Common Stock of the corporation, the Class B Common
Stock of the corporation or any other stock of the corporation
ranking junior to this Series as to dividends or distribution of
assets upon liquidation, dissolution or winding up of the affairs
of the corporation (the Class A Common Stock, the Class B Common
Stock and any such other stock being herein referred to as
"Junior Stock"), other than a dividend payable solely in Junior
Stock, (ii) purchase, redeem or otherwise acquire for value any
shares of Junior Stock, directly or indirectly, other than as a
result of a reclassification, exchange or conversion of one
Junior Stock for or into another Junior Stock, or other than
through the use of proceeds of a substantially contemporaneous
sale of other Junior Stock, or (iii) make any payment on account
of, or set aside money for, a sinking or other like fund for the
purchase, redemption or other acquisition for value of any shares
of Junior Stock. For purposes of this Section 2 and of Section
4(f) hereof, if any depositary shares have been issued with
respect to any series of stock, actions with respect to such
depositary shares, including acquisition of and payments on or
with respect to such depositary shares, shall be regarded as
actions with respect to such series of stock.
(c) If the funds available for the payment of dividends
are insufficient to pay in full the dividends payable on all
outstanding shares of this Series and shares of Parity Dividend
Stock, the total available funds to be paid in partial dividends
on the shares of this Series and shares of Parity Dividend Stock
shall be divided among this Series and the Parity Dividend Stock
in proportion to the aggregate amounts of dividends accrued and
unpaid with respect to this Series and the Parity Dividend Stock.
Accruals of dividends shall not bear interest.
3. Dividend Rate. (a) The Dividend Rate per quarter on
each share of this Series shall be an amount equal to the Dollar
Equivalent Value (as defined below) of 1.65 ounces of silver.
"Dollar Equivalent Value" means the applicable Reference Silver
Price multiplied by the applicable number of ounces of silver.
"Reference Silver Price" means, when used to calculate the amount
of any dividend payable on any Dividend Payment Date, the
arithmetic average of the London silver fixing spot price for an
ounce of silver in the London bullion market on each of the
twenty trading days ending on the second trading day prior to the
last day of the calendar quarter immediately preceding such
Dividend Payment Date, as published in The Wall Street Journal
(Eastern Edition) (or, if such prices are not published in The
Wall Street Journal, as published in the Financial Times). If
for any reason silver is not traded during any relevant period in
the London bullion market or is not quoted in U.S. dollars in
such market, silver will be valued during such period or portion
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thereof, as the case may be, on the basis of trading prices,
quoted in U.S. dollars, in the then principal international
trading market for silver as determined by the corporation's
Board of Directors. On or before the fifth business day
preceding each record date for the payment of a dividend in
respect of the shares of this Series, the corporation will cause
to be published in The Wall Street Journal (Eastern Edition) or,
if such newspaper is not then published, in a newspaper or other
publication of national circulation, the amount of the dividend
payable in respect of each share of this Series (and, if the
shares of this Series are represented by depositary shares, the
amount so payable per depositary share) on the next succeeding
Dividend Payment Date.
(b) Dividends shall be calculated on the basis of a year
of 360 days consisting of 12 30-day months. The term "Dividend
Period", as used herein, means, with respect to any Dividend
Payment Date, the period commencing on the day following the
immediately preceding Dividend Payment Date to and including such
Dividend Payment Date.
4. Redemption. (a) The Company will redeem annually on
August 1 beginning in 1999, out of funds legally available
therefor, a number of shares of this Series equal to one eighth
of the total number of shares of this Series outstanding
immediately after the date of original issuance of the shares of
this Series (including any shares issued pursuant to
underwriters' over-allotment options) (the "Original Shares"), at
the Dollar Equivalent Value per share of 160 ounces of silver.
(b) The shares of this Series shall not be subject to
redemption at the option of the corporation except as described
in this subsection (b). If at any time the total number of
outstanding depositary shares representing shares of this Series
(the "Depositary Shares") shall be less than 15% of the total
number of Depositary Shares representing shares of this Series
outstanding immediately after the date of original issuance of
the shares of this Series, the corporation shall have the option
to redeem the outstanding shares of this Series, in whole but not
in part, on any subsequent Dividend Payment Date out of funds
legally available therefor, at an amount equal to the Dollar
Equivalent Value of 160 ounces of silver per share plus accrued
and unpaid dividends (as hereinafter defined) to the date fixed
for redemption. For purposes of determining the number of shares
of this Series outstanding on any Dividend Payment Date, the
shares of this Series acquired by the corporation on or prior to
such Dividend Payment Date and not theretofore canceled (or in
the case of any shares of this Series represented by depositary
shares, the depositary shares representing shares of this Series
acquired by the corporation on or prior to such Dividend Payment
Date and not theretofore delivered to the depositary for the
depositary shares for cancellation) shall be deemed to be
outstanding. Notice of any such redemption as described in this
subsection (b) shall be mailed to holders of the shares of this
Series within 30 days after such Dividend Payment Date in
accordance with the provisions of Section 4(c) hereof. In
connection with any redemption pursuant to this subsection (b),
the corporation shall instruct the depositary in respect of any
Depositary Shares representing shares of this Series to redeem
such Depositary Shares on the same date as the redemption of
shares of this Series.
(c) At least 30 days but no more than 60 days prior to
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the date fixed for redemption of the shares of this Series in
accordance with Section 4(a) hereof or this subsection (b) (the
"Call Date"), a written notice will be mailed to each holder of
record (and each beneficial owner to the extent required by law)
of shares of this Series to be redeemed, notifying such holder of
the corporation's election to redeem such shares if such
redemption is pursuant to Section 4(b) hereof, setting forth the
method for determining the amount payable per share of this
Series on the Call Date, stating the Call Date and calling upon
such holder to surrender to the corporation on the Call Date at
the place designated in such notice the certificate or
certificates representing the shares called for redemption.
(d) At any time after a notice of redemption has been
given in the manner prescribed in Section 4(a) or (b) hereof and
the amount payable on the date fixed for redemption can be
determined by the corporation, and prior to the date fixed for
redemption, the corporation may deposit in trust, with a bank or
trust company identified in the notice of redemption having
capital, surplus and undistributed profits aggregating at least
$50,000,000, an aggregate amount of funds sufficient for such
redemption (including dividends accrued on the shares of this
Series called for redemption to the date fixed for redemption)
for immediate payment in the appropriate amounts upon surrender
of certificates for such shares. Any interest accrued on such
funds shall be paid to the corporation from time to time. Such
deposit in trust shall be irrevocable, except that any funds
deposited by the corporation which are unclaimed at the end of
two years from the date fixed for such redemption shall be paid
over to the corporation upon its request, and upon such repayment
the holders of the shares so called for redemption shall look
only to the corporation for payment of the appropriate amount.
(e) From and after the date fixed for redemption (unless
the corporation shall default in making payment of the amount
payable upon such redemption), whether or not certificates for
shares so called for redemption have been surrendered by the
holders thereof as described below, dividends on the shares of
this Series so called for redemption shall cease to accrue, and,
from and after the date of the deposit of trust funds for the
redemption of shares of this Series in accordance with the
provisions of Section 4(d) hereof, such shares shall be deemed to
be no longer outstanding, and all rights of the holders thereof
as stockholders of the corporation (except the right to receive
from the corporation the amount payable upon such redemption)
shall cease and terminate. Upon surrender in accordance with the
notice of redemption of the certificates for any shares of this
Series so redeemed (properly endorsed or assigned for transfer if
the corporation shall so require and the notice shall so state),
the holder thereof shall be entitled to receive payment of the
redemption price plus an amount equal to all accrued and unpaid
dividends as aforesaid.
(f) If the corporation shall have failed to make any
required annual redemption then, until it shall have redeemed all
outstanding shares of this Series then required to be redeemed,
the corporation may not (i) declare, pay or set apart any amounts
for dividends on, or make any other distribution in cash or other
property in respect of, any Junior Stock other than a dividend
payable solely in Junior Stock, (ii) purchase, redeem or
otherwise acquire for value any shares of Junior Stock, directly
or indirectly, other than as a result of a reclassification,
exchange or conversion of one Junior Stock for or into another
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Junior Stock, or other than through the use of proceeds of a
substantially contemporaneous sale of other Junior Stock, (iii)
make any payment on account of, or set aside money for, a sinking
or other like fund for the purchase, redemption or other acquisi-
tion for value of any shares of Junior Stock or (iv) purchase,
redeem or otherwise acquire for value any shares of stock of the
corporation ranking on a parity with the shares of this Series as
to dividends or distribution of assets upon liquidation,
dissolution or winding up ("Parity Stock").
(g) (i) Within 90 days following each Calculation Date
(as defined below), the corporation shall be required to prepare
a certificate (a "Corporation Certificate") setting forth its
determination of the Reserve Amount (as defined below) as of such
Calculation Date. If the Reserve Amount, as shown on the
Corporation Certificate prepared with respect to any Calculation
Date is less than the Aggregate Reserve Requirement (as defined
below) as of such Calculation Date, the corporation will be
required to make an offer (a "Reserve Coverage Offer") to
purchase, out of funds legally available therefor, at a price
equal to the liquidation preference thereof as of the Purchase
Date (as hereinafter defined), plus accrued and unpaid dividends
(as defined below) thereon to the Purchase Date, a sufficient
number of shares of this Series and of other Silver Parity Stock
(as defined below) (or the depositary shares, if any, issued with
respect thereto) such that, if all such shares had been
repurchased on the relevant Calculation Date, the Reserve Amount
on that date would have been greater than or equal to the
Aggregate Reserve Requirement on such date. If the Corporation
Certificate prepared with respect to any Calculation Date shows
that the Reserve Amount is less than the Aggregate Reserve
Requirement on such date, the corporation shall include in such
Corporation Certificate its calculation of the number of shares
of this Series (or related depositary shares) and the number of
shares of other Parity Stock (or related depositary shares) it
intends to offer to purchase to satisfy the foregoing
requirements (such number with respect to any series being
referred to as the "Offer Amount" with respect to such series).
The corporation, in its sole discretion, may determine the number
of shares, if any, of this Series (or related depositary shares)
and the number of shares, if any, of each other series of Silver
Parity Stock (or related depositary shares) to which a Reserve
Coverage Offer will be made so long as such requirements are
satisfied.
(ii) If required to make a Reserve Coverage Offer, the
corporation will commence such offer not more than 60 days after
the date of the Corporation Certificate prepared with respect to
the applicable Calculation Date, by mailing a notice to all
holders of record of the shares of each series included in such
Reserve Coverage Offer setting forth (A) that such notice is
being given pursuant to a Reserve Coverage Offer, (B) the Offer
Amount with respect to such series, (C) the method for
determining the amount payable per share of such series on the
Purchase Date, (D) the last date (the "Purchase Date"), which
shall not be less than 30 nor more 60 days after the date of such
notice, by which a holder must elect whether to accept the
Reserve Coverage Offer, (E) the procedures that such holder must
follow to exercise its rights and (F) the procedures for
withdrawing an election. The corporation shall also cause a copy
of such notice to be published in The Wall Street Journal
(Eastern Edition) or another daily newspaper of national
circulation.
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(iii) Holders of shares of any series electing to have
shares of such series purchased by the corporation pursuant to a
Reserve Coverage Offer will be required to surrender the
certificates representing such shares, with an appropriate form
duly completed, to the corporation prior to the Purchase Date.
Holders will be entitled to withdraw an election by a written
notice of withdrawal delivered to the corporation prior to the
close of business on the Purchase Date. The notice of withdrawal
shall state the number of shares and certificate numbers to which
the notice of withdrawal relates and the number of shares and
certificate numbers, if any, which remain subject to the
election. If the aggregate number of shares of any series
tendered exceeds the Offer Amount with respect to such series,
the corporation will select the shares of such series to be
purchased on a pro rata basis as nearly as practicable. The
corporation shall, as promptly as reasonably practicable after
the Purchase Date, cause payment to be mailed or delivered to
each tendering holder in the amount of the purchase price, and
any unpurchased shares to be returned to the holder thereof.
(h) If, at the time of any annual redemption or of a
Reserve Coverage Offer, the funds of the corporation legally
available for redemption or repurchase of the shares of this
Series are insufficient to redeem or repurchase all of such
shares and all of the shares of any other series of Parity Stock
which the corporation is then obligated to redeem or repurchase,
(i) the total legally available funds shall be allocated among
the shares of this Series and of such other series in proportion
to the aggregate dollar amount of redemption or other repurchase
obligations with respect to this Series and such other series and
(ii) the portion of such funds allocated to this Series will be
used to redeem or repurchase the maximum possible number of
shares of this Series, pro rata based upon the number of shares
to be redeemed or delivered for repurchase, as the case may be.
At any time thereafter when additional funds of the corporation
become legally available for such purpose, after giving effect to
the foregoing allocation provisions, such funds shall immediately
be used to redeem or repurchase, as the case may be, any
additional shares of this Series which the corporation is
obligated to redeem or repurchase, as the case may be, but which
it has not so redeemed or repurchased.
(i) The corporation shall not have the right to redeem
shares of this Series pursuant to Section 4(a) or (b) hereof
unless full cumulative dividends for all past dividend periods
shall have been paid or declared and set aside for payment upon
all outstanding shares of this Series and all outstanding shares
of other series of stock of the corporation ranking, as to
dividends, on a parity with the shares of this Series.
(j) The corporation will not consummate or permit any
subsidiary to consummate any transaction involving the
corporation which would cause the Reserve Amount to fall below
the Aggregate Reserve Requirement immediately after consummation
of such transaction unless the corporation will have sufficient
legally available funds immediately following consummation of
such transaction to complete any Reserve Coverage Offer required
as a result thereof.
(k) Definitions. For purposes of this Section 4, the
following terms shall have the meanings indicated:
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(i) "accrued and unpaid dividends" per share of
this Series (A) in the case of any Reserve Coverage
Offer, (B) in the case of any annual or optional
redemption and (C) in the case of a liquidation event,
shall be equal to the sum of (x) the aggregate amount of
any accrued and unpaid dividends on such share through
the next preceding Dividend Payment Date (calculated as
provided in Section 3 hereof) plus (y) a proportionate
amount of the regular quarterly dividend at the Dividend
Rate for the period from the day following the
immediately preceding Dividend Payment Date through the
redemption date, Purchase Date or date of liquidating
distribution (calculated on the basis of a year of 360
days consisting of twelve 30-day months) multiplied by
the Reference Silver Price used to calculate the other
amounts payable to holders of the shares of this Series
in connection with such redemption, purchase or
liquidation event. If a quarterly dividend is not
declared and paid as provided in Section 3 hereof, the
unpaid dividend that shall cumulate for such Dividend
Period will be the amount of the dividend that would have
been payable on the Dividend Payment Date if such
dividend had been timely paid.
(ii) "Aggregate Reserve Requirement" as of any
Calculation Date means the sum of the individual Reserve
Coverage Requirements with respect to each series of
Silver Parity Stock, including this Series.
(iii) "Calculation Date" means (i) December 31 of
each year and (ii) the date of the consummation of each
transaction undertaken by the corporation or any
subsidiary of the corporation which would either (a)
cause the Reserve Amount, as estimated by the
corporation, to decrease by 50% or more from the
preceding Calculation Date or (b) cause the Reserve
Amount, as estimated by the corporation, to fall below
the Aggregate Reserve Requirement on such date.
(iv) "Silver Parity Stock" means this Series and
any other series of Parity Stock the liquidation
preference of which is based on specified amounts of
silver or the Dollar Equivalent Value thereof.
(v) "Reference Silver Price", when used to
calculate the amount of any dividend payable on any
Dividend Payment Date or of any annual or optional
redemption payment with respect to the shares of this
Series means the arithmetic average of the London silver
fixing spot price for an ounce of silver in the London
bullion market on each of the twenty trading days ending
on the second trading day prior to the last day of the
calendar quarter immediately preceding such quarterly
date, as published in The Wall Street Journal (Eastern
Edition) (or, if such prices are not published in The
Wall Street Journal (Eastern Edition), as published in
the Financial Times). When used to calculate any other
amount payable with respect to the shares of this Series
or to purchase any shares of this Series on any date, the
"Reference Silver Price" means the arithmetic average of
the London silver fixing spot price for an ounce of
silver on the London bullion market on each of the twenty
trading days ending on the second trading day prior to
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(i) in the case of any Reserve Coverage Offer, the date
of commencement thereof and (ii) in the case of a
liquidation event, the date 30 days prior to the date
fixed for the liquidating distribution. If for any
reason silver is not traded during any relevant period in
the London bullion market or is not quoted in U.S.
dollars in such market, silver will be valued during such
period or portion thereof, as the case may be, on the
basis of trading prices, quoted in U.S. dollars, in the
then principal international trading market for silver as
determined by the corporation's Board of Directors.
(vi) "Required Coverage Multiplier" means (x) 2.0
with respect to this Series, (y) with respect to any
other series of Silver Parity Stock having the benefit of
a provision requiring an offer similar to the Reserve
Coverage Offer, the multiplier applicable thereto by the
terms of such other series, and (z) 1.0 with respect to
any other series of Silver Parity Stock.
(vii) "Reserve Amount" as of any Calculation Date
means the corporation's Proportionate Interest in the
estimated proved and probable silver reserves of the
corporation and of any entity in which the corporation
has a direct or indirect beneficial ownership interest.
The estimated proved and probable silver reserves shall
be determined based upon evaluation methods generally
applied by the mining industry. The corporation's
"Proportionate Interest" in any estimated proved and
probable silver reserves shall be the corporation's
direct or indirect beneficial ownership interest in such
reserves, giving effect to reductions required to reflect
any beneficial ownership interest of any person other
than the corporation in such reserves.
(viii) "Reserve Coverage Requirement" with respect
to any series of Silver Parity Stock shall mean the
product of (x) the aggregate liquidation preference of
all outstanding shares of such series (expressed in
ounces of silver) times (y) the Required Coverage
Multiplier applicable to such series. With respect to
any series with respect to which depositary shares have
been issued, the aggregate liquidation preference of such
series shall be determined on the basis of the number of
such depositary shares as are issued and outstanding as
of the applicable Calculation Date (excluding any
depositary shares which have been acquired by the
corporation on or prior to the date of the preparation of
the Corporation Certificate with respect to such
Calculation Date).
5. Voting Rights. (a) Except for the voting rights
described below and except as otherwise required by law, the
holders of shares of this Series shall not be entitled to vote on
any matter or to receive notice of, or to participate in, any
meeting of the stockholders of the corporation. Each share of
Preferred Stock of this Series will be entitled to one vote on
matters which holders of such Series are entitled to vote.
(b) The shares of this Series shall be entitled to vote
with respect to the election of directors in accordance with
Sections (b)(4) and (b)(5) of Article FOURTH of the certificate
of incorporation.
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(c) Whenever dividends payable on shares of this Series
shall be in default in an aggregate amount equal to or exceeding
six full quarterly dividends on all shares of this Series at the
time outstanding, the number of directors then constituting the
Board of Directors of the corporation shall be increased by two,
and holders of shares of this Series shall, in addition to any
other voting rights, have the right, voting separately as a class
together with holders of all other series of stock of the Company
ranking on a parity with shares of this Series either as to
dividends or the distribution of assets upon liquidation,
dissolution or winding up and upon which like voting rights have
been conferred and are exercisable (such other series of stock
being herein referred to as "Other Voting Stock"), to elect such
two additional directors. In such case, the Board of Directors
will be increased by two directors, and the holders of shares of
this Series (either alone or with the holders of Other Voting
Stock) will have the exclusive right as members of such class, as
described above, to elect two directors at the next annual
meeting of stockholders. Whenever such right of the holders of
shares of this Series shall have vested, such right may be
exercised initially either at a special meeting of such holders
as provided in Section 5(d) hereof or at any annual meeting of
stockholders held for the purpose of electing directors, and
thereafter at such annual meetings. The right of the holders of
shares of this Series to vote together as a class with the
holders of shares of any Other Voting Stock shall continue until
such time as all dividends accrued on outstanding shares of this
Series to the Dividend Payment Date next preceding the date of
any such determination shall have been paid in full, or declared
and set apart in trust for payment, at which time the right of
the holders of shares of this Series so to vote shall terminate,
except as herein or by law expressly provided, subject to
revesting upon the occurrence of a subsequent default of the
character mentioned above.
(d) At any time when the right of the holders of shares
of this Series to elect directors as provided in Section 5(c)
hereof shall have vested, and if such right shall not already
have been initially exercised, a proper officer of the
corporation, upon the written request of the holders of record of
at least 10% of the aggregate number of shares of this Series and
shares of any Other Voting Stock at the time outstanding,
addressed to the Secretary of the corporation, shall call a
special meeting of the holders of shares of this Series and of
such Other Voting Stock for the purpose of electing directors.
Such meeting shall be held at the earliest practicable date upon
the same form of notice as is required for annual meetings of
stockholders at the place for the holding of annual meetings of
stockholders of the corporation (or such other suitable place as
is designated by such officer). If such meeting shall not be
called by a proper officer of the corporation within 20 days
after personal service of such written request upon the Secretary
of the corporation, or within 20 days after mailing the same
within the United States of America, addressed to the Secretary
of the corporation at its principal office (such mailing to be
evidenced by the registry receipt issued by the postal
authorities), then the holders of record of at least 10% of the
aggregate number of shares of this Series and shares of any Other
Voting Stock at the time outstanding may designate in writing one
of their number to call such a meeting at the expense of the
corporation, and such meeting may be called by such person so
designated upon the same form of notice as is required for annual
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meetings of stockholders and shall be held at the place for the
holding of annual meetings of stockholders of the corporation (or
such other suitable place as is designated by such person). Any
holder of shares of this Series so designated shall have access
to the registry books of the corporation for the purpose of
causing a meeting of stockholders to be called pursuant to this
subsection (d). Notwithstanding anything to the contrary
contained in this subsection (d), no such special meeting shall
be called during the period within 90 days immediately preceding
the date fixed for the next annual meeting of stockholders of the
corporation.
(e) At any meeting held for the purpose of electing
directors at which holders of shares of this Series shall have
the right, voting together as a class with holders of shares of
any Other Voting Stock to elect directors as provided in Section
5(c) hereof, the presence, in person or by proxy, of the holders
of 33 1/3% of the aggregate number of shares of this Series and
shares of such Other Voting Stock at the time outstanding shall
be required and be sufficient to constitute a quorum of such
class for the election of directors pursuant to such Section
5(c). At any such meeting or adjournment thereof, (i) the
absence of a quorum of the shares of this Series and shares of
such Other Voting Stock shall not prevent the election of the
directors to be elected otherwise than pursuant to Section 5(c)
hereof and (ii) in the absence of a quorum, either of the shares
of this Series and shares of such Other Voting Stock or of any
other shares of stock of the corporation, or both, a majority of
the holders, present in person or by proxy, of the class or
classes of stock which lack a quorum shall have the power to
adjourn the meeting for the election of directors whom they are
entitled to elect, from time to time without notice other than
announcement at the meeting, until a quorum shall be present.
(f) During any period when the holders of shares of this
Series shall have the right to vote together as a class with the
holders of shares of any Other Voting Stock for directors as
provided in Section 5(c) hereof, (i) the directors so elected by
such holders shall continue in office until their successors
shall have been elected by such holders or until termination of
the rights of such holders to vote as a class for directors and
(ii) any vacancies in the Board of Directors shall be filled only
by a majority (even if that be only a single director) of the
remaining directors theretofore elected by the holders of the
class or classes of stock which elected the director whose office
shall have become vacant. Immediately upon termination of the
right of holders of this Series and any Other Voting Stock to
vote as a class for directors, (i) the term of office of the
directors so elected shall terminate and (ii) the number of
directors shall be such number as may be provided for in the
by-laws of the corporation irrespective of any increase pursuant
to the provisions of Section 5(c) hereof.
(g) In addition to any other vote required by law, the
corporation shall not (i) amend, alter or repeal, whether by
merger, consolidation or otherwise, the provisions of its
certificate of incorporation (including the terms of this Series)
so as to materially and adversely affect any right, preference,
privilege or voting power of this Series or (ii) create,
authorize or issue any series or class of stock ranking prior,
either as to payment of dividends or distributions of assets upon
liquidation, dissolution or winding up, to this Series, without
the affirmative vote or consent of the holders of at least two-
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thirds of the aggregate number of shares of this Series at the
time outstanding, voting as a separate class; provided, that any
increase in the total number of authorized shares of Common Stock
(or any series thereof) or Preferred Stock (or any series
thereof), or the creation, authorization or issuance of any
series of stock ranking, as to dividends or distribution of
assets upon liquidation, dissolution or winding up of the affairs
of the corporation, on a parity with the shares of this Series
will not be deemed to materially and adversely affect such
rights, preferences, privileges or voting powers; provided,
further, that no class vote of the holders of shares of this
Series shall be required if, at or prior to the time when the
actions described in clause (i) or (ii) of this Section 5(g)
shall become effective, provision is made in accordance with
Section 4 hereof for the redemption of all shares of this Series
at the time outstanding.
6. Preference upon Liquidation. (a) In the event of
any voluntary or involuntary liquidation, dissolution or winding
up of the affairs of the corporation, after payment or provision
for payment of the debts and other liabilities of the corporation
and of dividends and liquidation preferences in respect of any
other stock of the corporation ranking senior to the shares of
this Series as to such payments, the holders of shares of this
Series shall be entitled to receive, out of the remaining net
assets of the corporation, the Dollar Equivalent Value of 160
ounces of silver in cash for each share of this Series, plus an
amount equal to all dividends (whether or not earned or declared)
accrued and unpaid on each such share up to the date fixed for
distribution, before any distribution shall be made to or set
apart for the holders of any Junior Stock. If, after payment or
provision for payment of the debts and other liabilities of the
corporation and of dividends and liquidation preferences in
respect of any other stock of the corporation ranking senior to
the shares of this Series as to such payments, the remaining net
assets of the corporation are not sufficient to pay to the
holders of shares of this Series the full amount of their
preference set forth above, then the remaining net assets of the
corporation shall be divided among and paid to the holders of
shares of this Series, holders of shares of any other class or
series of Preferred Stock and holders of shares of any other
stock of the corporation on a parity with this Series as to
dividends and distribution of assets upon liquidation,
dissolution or winding up of the affairs of the corporation
ratably per share in proportion to the full per share amounts to
which they respectively are entitled. For purposes of this
subsection (a) and Section 6(b) hereof, a consolidation or merger
of the corporation with one or more other corporations or the
sale of all or substantially all of the assets of the corporation
shall not be deemed to be a voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the corporation.
(b) Subject to the rights of the holders of shares of
any series or class of stock ranking prior to this Series and of
the holders of shares any stock of the corporation ranking on a
parity as to dividends and distribution of assets upon
liquidation, dissolution or winding up of the affairs of the
corporation, after payment shall have been made in full to the
holders of this Series as provided in Section 6(a) hereof and
this subsection (b), the holders of any Junior Stock shall,
subject to the respective terms and provisions (if any) applying
thereto, be entitled to receive any and all assets remaining to
be paid or distributed, and shares of this Series shall not be
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entitled to share therein.
7. Taxes. The corporation will pay any and all
documentary, stamp or similar taxes payable to the United States
of America or any political subdivision or taxing authority
thereof or therein in respect of the issue or delivery of
certificates for shares of this Series on redemption of less than
all of the shares represented by any certificate for such shares
surrendered for redemption or pursuant to a Reserve Coverage
Offer; provided, that the corporation shall not be required to
pay any tax which may be payable in respect of any transfer
involved in the issue or delivery of certificates for shares of
this Series in a name other than that of the holder of shares of
this Series to be redeemed or repurchased and no such issue or
delivery shall be made unless and until the person requesting
such issue or delivery has paid to the corporation the amount of
any such tax or has established, to the satisfaction of the
corporation, that such tax has been paid. The corporation
extends no protection with respect to any other taxes imposed in
connection with such redemption or repurchase of shares of this
Series.
8. No Other Rights. The shares of this Series shall not
have any relative, participating, optional or other special
rights and powers other than as set forth herein and other than
any which may be provided by law.
9. Miscellaneous. Capitalized terms which are defined
in this Exhibit are defined only for the purposes of this
Exhibit, and not for the purposes of other Exhibits to the
certificate of incorporation. Unless otherwise indicated,
section references contained in this Exhibit refer to the
corresponding sections of this Exhibit.
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