EXHIBIT 3.11
RESTATED CERTIFICATE OF INCORPORATION
OF
COUNTRYWIDE CREDIT INDUSTRIES, INC.
(Pursuant to Section 245)
Countrywide Credit Industries, Inc. a corporation organized and existing under
the laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is Countrywide Credit Industries, Inc.
The date of filing its original Certificate of Incorporation with the Secretary
of State was December 2, 1986.
2. This Restated Certificate of Incorporation only restates and
integrates and does not further amend the provisions of the Certificate of
Incorporation of this corporation as heretofore amended or supplemented and
there is no discrepancy between those provisions and the provisions of this
Restated Certificate of Incorporation.
3. The text of the Certificate of Incorporation as amended or
supplemented heretofore is hereby restated without further amendments or changes
to read as herein set forth in full:
FIRST: The name of the Corporation is Countrywide Credit Industries,
Inc.
SECOND: The purposes for which the Corporation is formed are:
To purchase, own, and hold the stock of other corporations, and to do
every act and thing covered generally by the denomination "holding corporation",
and especially to direct the operations of other corporations through the
ownership of
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stock therein; to purchase, subscribe for, acquire, own, hold, sell, exchange,
assign, transfer, mortgage pledge, or otherwise dispose of shares or voting
trust certificates for shares of the capital stock of, or any bonds, notes,
securities, or evidences of indebtedness created by, any other corporation or
corporations organized under the laws of this state or any other state or
district or country, nation, or government and also bonds or evidences of
indebtedness of the United States or of any state, district, territory,
dependency, or country or subdivision or municipality thereof; to issue in
exchange therefor shares of the capital stock, bonds, notes, or other
obligations of this Corporation and while the owner thereof to exercise all the
rights, powers, and privileges of ownership including the right to vote any
shares of stock or voting trust certificates so owned; to promote, lend money
to, and guarantee the dividends, stocks, bonds, notes, evidences of
indebtedness, contracts, or other obligations of and otherwise aid, in any
manner which shall be lawful, any corporation or association of which any bonds,
stocks, voting trust certificates, or other securities or evidences of
indebtedness shall be held by or for this Corporation, or in which, or in the
welfare of which, this Corporation shall have any interest, and to do any acts
and things permitted by law and designed to protect, preserve, improve, or
enhance the value of any such bonds, stocks, or other securities or evidences of
indebtedness or the property of this Corporation.
To acquire, and pay for in cash, stock or bonds of this Corporation or
otherwise, the goodwill, rights, assets and property, and to undertake or assume
the whole or any part of the obligations or liabilities of any person, firm,
association or corporation.
To manufacture, purchase, or otherwise acquire, invest in, own,
mortgage, pledge, sell, assign, and transfer or otherwise dispose of, trade,
deal in and deal with goods, wares and merchandise and personal property of
every class and description.
To purchase, hold, lease, mortgage, pledge and otherwise acquire,
dispose of, and encumber real and personal property of any and every kind and
description in all of the states, territories, colonies, dependencies and
districts of the United States of America and in any and all foreign countries.
To borrow money and contract debts, when necessary for the transaction
of the business of the Corporation or for the exercise of its corporate rights,
privileges or franchises, or for any other lawful purpose of its incorporation
and to issue and dispose of obligations for any amount so borrowed and to
mortgage or pledge its property and franchises to secure the payment of such
obligations, or of any debt contracted for such purposes, in the manner
authorized by law.
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To purchase or otherwise acquire, hold, exchange, pledge, hypothecate,
sell, deal in, and dispose of mortgages covering any kind of property, tax
liens, and transfers of tax liens on real estate.
To exercise all or any of the corporate powers and to carry out all or
any of the purposes, enumerated herein or otherwise granted or permitted by law,
while acting as agent, nominee, or attorney in fact for any persons or
corporations, and to perform any service under the contract or otherwise for any
corporation, joint stock company, association, partnership, firm, syndicate,
individual, to other entity, and in such capacity or under such arrangement, to
develop, improve, stabilize, strengthen, or extend the property and commercial
interest thereof, and to aid, assist, or participate in any lawful enterprises
in connection therewith or incidental to such or assistance insofar as it
lawfully may under the General Corporation Law of the State of Delaware.
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
The foregoing clauses shall be construed both as objects and powers,
and it is hereby expressly provided that the foregoing enumeration of specific
powers shall not be held to limit or restrict in any manner the powers of this
Corporation.
THIRD: The aggregate number of shares which the Corporation shall have
authority to issue is forty million (40,000,000) shares of Common Stock, of the
par values of Five Cents ($.05) per share, and One Million, Five Hundred
Thousand (1,500,000) shares of Preferred Stock, of the par value of Five Cents
($.05) per share. The Preferred Stock may be issued in one or more series at
such time or times and for such consideration or considerations as the Board of
Directors may determine. With respect to the Preferred Stock, the Board of
Directors of this Corporation is authorized to determine or alter the voting
rights, dividend privileges, liquidation preferences, and all other rights,
preferences, privileges and restrictions, including without limitation,
conversion rights into Common Stock, granted to or imposed upon any wholly
unissued series of Preferred Stock and, within the limitations of restrictions
stated in any resolution of the Board of Directors originally fixing the number
of shares of Preferred Stock constituting any series, to increase or decrease
(but not below the number of shares of such series then outstanding) the number
of shares of such series subsequent to the issue of shares of that series, to
determine the designation of any series and to fix the number of shares of any
series.
FOURTH: The address of the Corporation's registered office in the State
of Delaware is Corporation Trust Center, 1209 Orange Street, County of New
Castle, Wilmington, Delaware 19801. The name of the registered agent of the
Corporation at
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such address is The Corporation Trust Company.
FIFTH: No holder of any shares of any class of the Corporation shall be
entitled, as such, as a matter of right, to subscribe for or purchase or receive
any part of any unissued shares of any class of the Corporation, or of any
shares of any class issued and thereafter acquired by the Corporation, whether
now authorized or hereafter created, or of any securities of any kind
convertible into or evidencing the right to subscribe for or purchase or receive
any shares of any class of the Corporation, whether not authorized or hereafter
created, and in each case whether issued for cash, property, services or any
other consideration, but such shares or other securities may be issued or
disposed of by the board of directors to such persons and on such terms as in
its discretion it shall deem advisable.
SIXTH: The Corporation may indemnify its directors and officers to the
full extent permitted by the laws of the State of Delaware.
SEVENTH: A director of the Corporation shall have no personal liability
to the Corporation or its stockholders for monetary damages for breach of his
fiduciary duty as a director to the full extent permitted by the Delaware
General Corporation Law as it may be amended from time to time.
EIGHTH: The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal bylaws of the Corporation. In addition to
any requirements of the Delaware General Corporation Law (and notwithstanding
the fact that a lesser percentage may be specified by the Delaware General
Corporation Law), the affirmative vote of the holders of at least two-thirds (66
2/3%) of the voting power of all of the shares of capital stock of the
Corporation then entitled to vote generally in the election of directors, voting
together as a single class, shall be required for stockholders of the
Corporation to amend, alter, change, adopt or repeal any bylaws of the
Corporation unless such amendment, alteration, change adoption or repeal of the
bylaws is determined to be advisable by the Board of Directors by the
affirmative vote of (a) two thirds of the entire Board of Directors and (b) a
majority of those directors who became members of the Board of Directors prior
to the time when any stockholder who then is the "beneficial owner" (as such
terms defined in rule 13d-3 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as amended) of 10% or more of the then
outstanding shares of capital stock of the Corporation then entitled to vote
generally in the election of directors, first became the beneficial owner of 10%
or more of such outstanding shares of such capital stock (the "Continuing
Directors"), even if such directors do not constitute a quorum of the entire
Board of Directors.
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NINTH: Elections of directors need not be by written ballot except and
to the extent provided in the bylaws of the Corporation.
TENTH: (a) The number of directors shall be as provided in the bylaws.
The Board of Directors shall be divided into three classes, designated Class I,
Class II, and Class III, such classes to be as nearly equal in number as
possible. At the annual meeting of stockholders in 1987, directors of Class I
shall be elected to hold office for a term expiring at the next succeeding
annual meeting, directors of Class II shall be elected to hold office for a term
expiring at the second succeeding annual meeting and directors of Class III
shall be elected to hold office for a term expiring at the third succeeding
annual meeting. Thereafter at each annual meeting of stockholders, directors
shall be chosen for a term of three years to succeed those whose terms then
expire and shall hold office subject to their earlier death, resignation or
removal, until the third following annual meeting of stockholders and until the
election of their respective successors.
(b) any director may be removed from office only for cause and only by
the affirmative vote of the holders of two-thirds (66 2/3%) of the voting power
of the outstanding shares of Common Stock.
(c) any vacancy on the Board of Directors, whether arising through
death, resignation or removal of a director or through the increase in the
number of directors of any class, shall be filled by a majority vote of all the
remaining directors, though less than a quorum. The term of office of any
director elected to fill such a vacancy shall expire at the expiration of the
term of office of directors of the class to which such director was elected.
(d) Notwithstanding any other provisions in this Article, and except as
otherwise required by law, whenever the holders of any one or more series of
Preferred Stock or other securities of the corporation shall have the right,
voting separately as a class, to elect one or more directors of the Corporation,
the term of office, the filling of vacancies and other features of such
directorships shall be governed by the terms of this Certificate of
Incorporation applicable thereto, and unless the terms of this Certificate of
Incorporation expressly provide otherwise, such directorships shall be in
addition to the number of directors provided in the bylaws, and such directors
shall not be classified pursuant to this Article.
ELEVENTH: Any action required or permitted to be taken by the
stockholders of this Corporation shall be taken at an annual or special meeting
of the stockholders. No action may be taken by stockholders by written consent.
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TWELFTH: (a) Any direct or indirect purchase by the Corporation, or any
subsidiary of the Corporation of any Voting Stock (as herein defined) from a
person or persons known by the Board of Directors of the Corporation to be an
Interested stockholder (as herein defined) who has beneficially owned such
Voting Stock for less than two years prior to the date of such purchase or any
agreement in respect thereof, at a price in excess of the fair market value (as
herein defined), shall require the affirmative vote of no less than a majority
of the votes cast by the holders, voting together as a single class, of all then
outstanding shares of capital stock of the Corporation entitled to vote
generally on matters relating to the Corporation, excluding for this purpose the
votes by the Interested Stockholder, unless a greater vote shall be required by
law.
(b) Such affirmative vote shall not be required for a purchase or other
acquisition of securities of the same class made on substantially the same terms
to all holders of such securities and complying with the applicable requirements
of the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (or any subsequent provisions replacing such Act, rules
or regulations). Furthermore, such affirmative vote shall not be required for
any purchase effected on the open market and not the result of a
privately-negotiated transaction.
(c) For the purposes of this Article:
(i) A "person" shall mean any individual, firm, corporation or
other entity.
(ii) "Voting Stock" shall mean any class or series of the
capital stock of the Corporation having the right to vote generally on matters
relating to the Corporation and any security which is convertible into such
stock.
(iii) "Interested Stockholder" shall mean any person (other
than the Corporation or any corporation of which a majority of any class of
equity security is owned, directly or indirectly, by the Corporation or profit
sharing, employee stock ownership or other employee benefit plan of the
Corporation or any subsidiary thereof, or any trustee or other fiduciary with
respect to any such plan when acting in such capacity) who or which:
A. is the beneficial owner, directly or indirectly,
of 5% or more of the outstanding Voting Stock; or
B. is an Affiliate of the Corporation and at any time
within the two-year period immediately prior to the date in
question was the beneficial owner, directly or indirectly, of
5% or more of the outstanding Voting Stock; or
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C. is an assignee or has otherwise succeeded to any
shares of Voting Stock which were at any time within the
two-year period immediately prior to the date in question
beneficially owned by an Interested Shareholder, if such
assignment or succession shall have occurred in the course of
a transaction or transactions not involving a public offering
within the meaning of the Securities Act of 1933, as amended.
(iv) A person shall be a "beneficial owner" of any Voting
Stock of the Corporation:
A. which such person or any of its Affiliates or
Associates beneficially owns, directly or indirectly, or
B. which such person or any of its Affiliates or
Associates has (i) the right to acquire (whether such right is
exercisable immediately or only after the passage of time),
pursuant to any agreement, arrangement or understanding or
upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (ii) any right to vote
pursuant to any agreement, arrangement or understanding; or
C. which are beneficially owned, directly or
indirectly, by any other person with which such person or any
of its affiliates or Associates has any agreement, arrangement
or understanding for the purpose of acquiring, holding, voting
or disposing any Voting Stock of the Corporation.
(v) For the purposes of determining whether a person is an
Interested Stockholder pursuant to subparagraph (ii) hereof, Voting Stock
outstanding shall be deemed to comprise all Voting Stock deemed owned through
application of subparagraph (iii) hereof, but shall not include other Voting
Stock which may be issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights, warrants or options, or
otherwise.
(vi) "Affiliate" or "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended.
(vii) "Fair Market Value" shall mean as to each class of stock
or other security which constitutes Voting Stock, the highest closing sale price
during the thirty-day period immediately preceding the date in question of a
share of such stock on the composite tape for New York Stock Exchange-listed
stocks, or, if such stock is not quoted on such composite tape or if such stock
is not listed on such exchange, on the
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principal United States securities exchange registered under the Exchange Act on
which such stock is listed, or, if such stock is not listed on any such
exchange, the highest closing bid quotation with respect to a share of such
stock during the thirty-day period preceding the date in question on the
National Association of Securities Dealers, Inc., Automated Quotations System or
any system then in use. Or if no such quotations are available, the fair market
value on the date in question of a share of such stock as determined by the
Board of Directors of the Corporation in good faith.
(d) The Board of Directors shall have the power and duty to determine,
for purposes of this Article, on the basis of information known to the Board:
(i) the amount of Voting Stock beneficially owned by any
person;
(ii) when such person acquired a beneficial interest in
such Voting Stock;
(iii) whether such person owns 5% or more of the Voting
Stock;
(iv) the aggregate number of shares of stock and the
aggregate amount any other security outstanding at
any time;
(v) whether a person is an Affiliate or Associate of
another; and
(vi) whether paragraphs (a) or (b) above are or have
become applicable in respect of a proposed purchase
of Voting Stock by the Corporation.
and any such determination made in good faith shall be conclusive and binding
for all purposes of this Article.
THIRTEENTH: The Corporation hereby reserves the right to amend, alter,
change or repeal any provision contained in this Certificate of Incorporation in
the manner now or hereafter prescribed by the Delaware General Corporation Law
and all rights conferred on stockholders therein granted are subject to this
reservation; provided, however, that, notwithstanding the fact that a lesser
percentage may be specified by the Delaware General Corporation Law, the
affirmative vote of the holders of at least two-thirds (66 2/3%) of the voting
power of all of the shares of capital stock of the Corporation then entitled to
vote generally in the election of directors, voting together as a single class,
shall be required to amend, alter, change or repeal, or adopt any provision or
provisions inconsistent with, any provision of Article Eighth, Tenth, Eleventh,
Twelfth, or Thirteenth hereof, unless such amendment, alteration, change, repeal
or
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adoption of any inconsistent provision or provisions is declared advisable by
the Board of Directors by the affirmative vote of (a) two-thirds of the entire
Board of Directors and (b) a majority of the Continuing Directors ( as defined
in Article Eighth).
4. This Restated Certificate of Incorporation was duly adopted by the
Board of Directors in accordance with Section 245 of the General Corporation Law
of the State of Delaware.
IN WITNESS WHEREOF, said Countrywide Credit Industries, Inc. has caused
this certificate to be signed by David S. Loeb, its President, and
attested by Paul H. Moeller, it s Secretary, this 14th day of July,
1987.
By /s/ David S. Loeb
----------------------------------
David S. Loeb
President
ATTEST:
By /s/ Paul H. Moeller
-------------------------
Paul H. Moeller
Secretary
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS
OF SERIES A PARTICIPATING PREFERRED STOCK
of
COUNTRYWIDE CREDIT INDUSTRIES, INC.
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
We, David Loeb, Chairman of the Board and President and Dennis
Slattery, Secretary, of Countrywide Credit Industries, Inc., a corporation
organized and existing under the General Corporation Law of the State of
Delaware, in accordance with the provisions of Section 3 thereof, DO HEREBY
CERTIFY:
That pursuant to the authority conferred upon the Board of Directors by
the Certificate of Incorporation of the said Corporation, the said Board of
Directors on February 10, 1988, adopted the following resolution creating a
series of 250,000 shares of Preferred Stock designated as Series A Participating
Preferred Stock:
RESOLVED, that pursuant to the authority vested in the Board of
Directors of this Company in accordance with the provisions of its Certificate
of Incorporation, a series of Preferred Stock of the Company be and it hereby is
created, and that the designation and amount thereof and the powers, preferences
and relative, participating, optional and other special rights of the shares of
such series, and the qualifications, limitations or restrictions thereof are as
follows:
Section 1. Designation and Amount. The shares of such series shall be
designated as "Series A Participating Preferred Stock" $0.05 par value per
share, and the number of shares constituting such series shall be 250,000. Such
number of shares may be increased or decreased by resolution of the Board of
Directors; provided, that no decrease shall reduce the number of shares of
Series A Participating Preferred Stock to a number less than that of the shares
then outstanding plus the number of shares issuable upon exercise of outstanding
rights, options or warrants or upon conversion of outstanding securities issued
by the Corporation.
Section 2. Dividends and Distribution.
(A) Subject to the prior and superior rights of the holders of any
shares of any series of Preferred Stock ranking prior and superior to the shares
of Series A Participating Preferred Stock with respect to the dividends, the
holders of shares of Series A Participating Preferred Stock in preference to the
holders of shares of Common Stock, par value $.05 per share (the "Common
Stock"), of the Corporation and any other junior stock, shall be entitled to
receive, when, as and if declared by the Board of Directors out of funds legally
available for the purpose, quarterly dividends payable in cash on the first day
of March, June, September and December in each year (each such date being
referred to herein as a "Quarterly Dividend Payment Date"), commencing on the
first Quarterly Dividend Payment Date after the first issuance of a share or
fraction of a share of Series A Participating Preferred Stock in an amount per
share (rounded to the nearest cent) equal to the greater of (a) $1.00, or (b)
subject to the provision for adjustment hereinafter set forth, 100 times the
aggregate per share amount of all cash dividends, and 100 times the aggregate
per share amount (payable in kind) of all non-cash dividends or other
distributions other than a dividend payable in shares of Common Stock or a
subdivision of the outstanding shares of common stock (by reclassification or
otherwise), declared on the Common Stock, since the immediately preceding
Quarterly Dividend Payment Date, or, with respect to the first Quarterly
Dividend Payment Date, since the first issuance of any share or fraction of a
share of Series A Participating Preferred Stock. In the event the Corporation
shall at any time after February 26, 1988 (the "Rights Declaration Date") (i)
declare any dividend on Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock, or (iii) combine the outstanding Common
Stock into a smaller number of shares, then in each such case the amount to
which holders of shares of Series A Participating Preferred Stock were entitled
immediately prior to such event under clause (b) of the preceding sentence shall
be adjusted by multiplying such amount 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 that were
outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on the
Series A Participating Preferred Stock as provided in paragraph (A) above
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock); provided that, in the
event no dividend or distribution shall
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have been declared on the Common Stock during the period between any Quarterly
Dividend Payment Date and the next subsequent Quarterly Dividend Payment Date, a
dividend of $1.00 per share on the Series A Participating Preferred Stock shall
nevertheless be payable on such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Participating Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issue of such shares of Series A
Participating Preferred Stock unless the date of issue of such shares is prior
to the record date for the first Quarterly Dividend Payment Date, in which case
dividends on such shall begin to accrue from the date of issue of such shares,
or unless the date of issue is a Quarterly Dividend Payment Date or is a date
after the record date for the determination of holders of shares of Series A
Participating Preferred Stock entitled to receive a quarterly dividend and
before such Quarterly Dividend Payment Date in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends
paid on the shares of Series A Participating Preferred Stock in the an amount
less than the total amount of such dividends at the time accrued and payable on
such shares shall be allocated pro rata on a share-by-share basis among all such
shares at the time outstanding. The Board of Directors may fix a record date for
the determination of holders of shares of Series A Participating Preferred stock
entitled to receive payment of a dividend or distribution declared thereon,
which record date shall be no more than 30 days prior to the date fixed for the
payment thereof.
Section 3. Voting Rights. The holders of shares of Series A
Participating Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each
share of Series A Participating Preferred Stock shall entitle the holder thereof
to 100 votes on all matters submitted to a vote of the shareholders of the
Corporation.
(B) Except as otherwise provided herein or by law, the holders of
shares of Series A Participating Preferred Stock and the holders of shares of
Common Stock shall vote together as one class on all matters submitted to a vote
of shareholders of the Corporation.
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(C) (i) If at any time dividends on any Series A Participating
Preferred Stock shall be in arrears in an amount equal t six (6) quarterly
dividends thereon, the occurrence of such contingency shall mark the beginning
of a period (herein called a "default period") which shall extend until such
time when all accrued and unpaid dividends for all previous quarterly dividend
periods and for the current quarterly period on all shared of Series A
Participating Preferred Stock then outstanding shall have been declared and paid
or set apart for payment. During each default period, all holders of Preferred
Stock (including holders of the Series A Participating Preferred Stock) with
dividends in arrears in an amount equal to six (6) quarterly dividends thereon,
voting as a class, irrespective of series, shall have the right to elect (2)
Directors.
(ii) During any default period, such voting right of the holders of
Series A Participating Preferred Stock may be exercised initially at a special
meeting called pursuant to subparagraph (iii) of this Section 3(C) or at any
annual meeting of shareholders, and thereafter at annual meeting of shareholders
provided that neither such voting right nor the right of the holders of any
other series of Preferred Stock, if any, to increase, in certain cases, the
authorized number of Directors shall be exercised unless the holders of ten
percent (10%) in number of shares of Preferred Stock outstanding shall be
present in person or by proxy. The absence of a quorum of the holders of Common
Stock should not affect the exercise by the holders of Preferred Stock of such
voting right. At any meeting at which the holders of Preferred Stock shall
exercise such voting right initially during an existing default period, they
shall have the right, voting as a class, to elect Directors to fill such
vacancies, if any, in the Board of Directors as may then exist up to two (2)
Directors or, if such right is exercised at an annual meeting, to elect two (2)
Directors. If the number which may be so elected at any special meeting does not
amount to the required number, the holders of the Preferred Stock shall have the
right to make such increase in the number of Directors as shall be necessary to
permit the election by them of the required number. After the holders of the
Preferred Stock shall have exercised their right to elect Directors in any
default period and during the continuance of such period, the number of
Directors shall not be increased of decreased except by vote of the holders of
the Preferred Stock as herein provided or pursuant to the rights of any equity
securities ranking senior to or pari passu with the Series A Participating
Preferred Stock.
(iii) Unless the holders of Preferred Stock shall, during an
existing default
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period, have previously exercised their right to elect Directors, the Board of
Directors may order, or any shareholder or shareholders owning in the aggregate
not less than ten percent (10%) of the total number of shares of Preferred Stock
outstanding, irrespective if series, may request, the calling of a special
meeting of the holders of Preferred Stock, which meeting shall thereupon be
called by the President, a Vice-President or the Corporate Secretary of the
Corporation. Notice of such meeting and of any annual meeting at which holders
of Preferred Stock are entitled to vote pursuant to this paragraph (C)(iii)
shall be given to each holder of record of Preferred Stock by mailing a copy of
such notice to him at his last address as the same appears on the books of the
Corporation. Such meeting shall be called for a time not earlier than 10 days
and not later than 60 days after such order or request or in default of the
calling of such meeting within 60 days of such order or request, such meeting
may be called on similar notice by any shareholder or shareholders owning in the
aggregate not less than ten percent (10%) of the total number of shares of
Preferred Stock outstanding. Notwithstanding the provisions of this paragraph
(C)(iii), no such special meeting shall be called during the period within 60
days immediately preceding the date fixed for the next annual meeting of the
shareholders.
(iv) In any default period, the holders of Common Stock, and other
classes of stock of the Corporation if applicable, shall continue to be entitled
to elect the whole number of Directors until the holders of Preferred Stock
shall have exercised their right to elect two (2) Directors voting as a class,
after the exercise of which right (x) the Directors so elected by the holders of
Preferred Stock shall continue in office until their successors shall have been
elected by such holders or until the expiration of the default period, and (y)
any vacancy in the Board of Directors may (except as provided in paragraph
(C)(ii) of this Section 3) be filled by vote of a majority of the remaining
Directors theretofore elected by the holders of the class of stock which elected
the director whose office shall have become vacant. References in this paragraph
(C) to Directors elected by the holders of a particular class of stock shall
include Directors elected by such Directors to fill vacancies as provided in
clause (y) of the foregoing sentence.
(v) Immediately upon the expiration of a default period, (x) the right
of the holders of Preferred Stock as a class to elect Directors shall cease, (y)
the term of any Directors elected by the holders of Preferred Stock as a class
shall terminate, and (z) the number of Directors shall be such number as may be
provided for in, or pursuant to, the Restated Certificate of Incorporation or
By-Laws irrespective of any increase made
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pursuant to the provisions of paragraph (C)(ii) of this Section 3 (such number
being subject, however to change thereafter in any manner provided by law or in
the Restated Certificate of Incorporation of By-Laws). Any vacancies in the
Board of Directors effected by the provisions of clauses (y) and (z) in the
preceding sentence may be filled by a majority of the remaining Directors, even
though less than a quorum.
(D) Except as set forth herein, holders of Series A Participating
Preferred Stock shall have no special voting rights and their consent shall not
be required (except to the extent they are entitled to vote with holders of
Common Stock as set forth herein) for taking any corporate action.
Section 4. Certain Restrications.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Participating Preferred Stock as provided in Section 2
are in arrears thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A Participating
Preferred Stock outstanding shall have been paid in full, the Corporation shall
not
(i) declare or pay dividends on, make any other distributions
on, or redeem or purchase or otherwise acquire for consideration any
shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up)to the Series A Participating
Preferred Stock;
(ii) declare any pay dividends on or make any other
distributions on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series A Participating Preferred Stock except dividends paid ratably on
the Series A Participating Preferred Stock and all such parity stock on
which dividends are payable or in arrears in proportion to the total
amounts to which the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking on a parity (either as to
dividends or upon liquidation, dissolution, or winding up) with the
Series A Participating Preferred Stock provided that the Corporation
may at any time redeem, purchase or otherwise acquire shares of any
such parity stock in exchange for shares of any stock of the
Corporation ranking junior (either as to dividends or upon
6
dissolution, liquidation or winding up) to the Series A Participating
Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any
shares of Series A Participating Preferred Stock or any shares of stock
ranking on a parity with the Series A Participating Preferred Stock
except in accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors) to all holders of
such shares upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates and other
relative rights and preferences of the respective series and classes,
shall determine in good faith will result in fair and equitable
treatment among the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (A) of this Section 4
purchase or otherwise acquire such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A Participating
Preferred Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and cancelled promptly after the acquisition
thereof. All such shares shall upon their cancellation become authorized but
unissued shares of Preferred Stock and may be reissued as part of new series of
Preferred Stock to be created by resolution or resolutions of the Board of
Directors, subject to the conditions and restrictions on issuance set forth
herein.
Section 6. Liquidation, Dissolution or Winding Up. (A) Upon any
liquidation (voluntary or otherwise), dissolution or winding up of the
Corporation, no distribution shall be made to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Participating Preferred Stock unless, prior thereto,
the holders of shares of Series A Participating Preferred Stock shall have
received per share, the greater of 100 times $35 or 100 times the payment made
per share of Common Stock, plus and amount equal to accrued and unpaid dividends
and distributions thereon, whether or not declared, to the date of such payment
(the "Series A Liquidation Preference"). Following the payment of the full
amount of the Series A Liquidation Preference, no additional distributions shall
be made to the holders of shares of Series A Participating Preferred Stock
unless, prior thereto, the holders of shares of
7
Common Stock shall have received an amount per share (the "Common Adjustment"
equal to the quotient obtained by dividing (i) the Series A Liquidation
Preference by (ii) 100 (as appropriately adjusted as set forth in subparagraph C
below to reflect such events as stock splits, stock dividends and
recapitalizations with respect to the Common Stock) (such number in clause (ii),
the "Adjustment Number"). Following the payment of the full amount of the Series
A Liquidation Preference and the Common Adjustment in respect of all outstanding
shares of Series A Participating Preferred Stock and Common Stock, respectively,
holders of Series A Participating Preferred Stock and holders of shares of
Common Stock shall receive their retable and proportionate share of the
remaining assets to be distributed in the ratio of the Adjustment Number to 1
with respect to such Preferred Stock and Common Stock, on a per share basis,
respectively.
(B) In the event there are not sufficient assets available to permit
payment in full of the Series A Liquidation Preference and liquidation
preferences of all other series of Preferred Stock, if any, which rank on a
parity with the Series A Participating Preferred Stock then such remaining
assets shall be distributed ratably to the holders of such parity shares in
proportion to their respective liquidation preferences. In the event there are
not sufficient assets available to permit payment in full of the Common
Adjustment, then such remaining assets shall be distributed ratably to the
holders of Common Stock.
(C) In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such case
the Adjustment Number in effect immediately prior to such event shall be
adjusted by multiplying such Adjustment Number by a fraction the numerator of
which is the number of shares of Common Stock that were outstanding immediately
after such event and the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc. In case the Corporation shall
enter into any consolidation, merger, combination or other transaction in which
the shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case the shares of
Series A Participating Preferred Stock shall at the same time be similarly
exchanged or changed in an amount per share
8
(subject to the provision for adjustment hereinafter set forth) equal to 100
times the aggregate amount of stock, securities, cash and/or any other property
(payable in kind), as the case may be, into which or for which each share of
Common Stock is change or exchanged. In the event the Corporation shall at any
time after the Rights Declaration Date (i) declare any dividend on Common Stock
payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock,
or (iii) combine the outstanding Common Stock into a smaller number of shares,
then in each such case the amount set forth in the preceding sentence with
respect to the exchange or change of shares of Series A Participating Preferred
Stock shall be adjusted by multiplying such amount 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
that are outstanding immediately prior to such event.
Section 8. Redemption. The shares of Series A Participating Preferred
Stock shall not be redeemable.
Section 9. Ranking. The Series A Participating Preferred Stock shall
rank junior to all other series of the Corporation's Preferred Stock as to the
payment of dividends and the distribution of assets, unless the terms of any
such series shall provide otherwise.
Section 10. Amendment. The Restated Certificate of Incorporation of the
Corporation shall not be further amended in any manner which would materially
alter or change the powers, preferences or special rights of the Series A
Participating Preferred Stock so as to affect them adversely without the
affirmative vote of the holders of a majority or more of the outstanding shares
of Series A Participating Preferred Stock voting separately as a class.
Section 11. Fractional Shares. Series A Participating Preferred Stock
may be issued in fractions of a share which shall entitle the holder, in
proportion to such holders fractional shares, to exercise voting rights, receive
dividends, participate in distributions and to have the benefit of all other
rights of holders of Series A Participating Preferred Stock.
RESOLVED FURTHER, that the proper officers of the Corporation be, and
each of them hereby is, authorized to execute a Certificate of Designation with
respect to the Series A Participating Preferred Stock pursuant to Section 151 of
the General Corporation Law of the State of Delaware and to take all appropriate
action to cause such Certificate to become effective, including, but not limited
to, the filing and recording of such Certificate with and/or by the Secretary of
State of the State of Delaware.
9
IN WITNESS WHEREOF, we have executed and subscribed this Certificate and do
affirm the foregoing as true under the penalties of perjury this 11th day of
February, 1988.
/s/ David Loeb
-----------------------------
Chairman of the Board
and President
Attest:
/s/ Dennis Slattery
- ---------------------------------
Secretary
10
CERTIFICATE OF DESIGNATION
OF
$23.75 CONVERTIBLE PREFERRED STOCK
OF
COUNTRYWIDE CREDIT INDUSTRIES, INC.
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
COUNTRYWIDE CREDIT INDUSTRIES, INC., a corporation organized and
existing under the laws of the State of Delaware (the "Corporation"), does
hereby certify that, pursuant to the authority conferred on the Board of
Directors of the Corporation by the Restated Certificate of Incorporation, as
amended, of the Corporation and in accordance with Section 151 of the General
Corporation Law of the State of Delaware, the Board of Directors of the
Corporation (and, as to certain matters allowed by law, a duly authorized
committee thereof) adopted the following resolution establishing a series of
184,000 shares of Preferred Stock of the Corporation designated as $23.75
Convertible Preferred Stock":
RESOLVED, that pursuant to the
authority conferred on the Board of
Directors of this Corporation by the
Certificate of Incorporation, a series of
Preferred Stock, par value $.05 per share,
of the Corporation be and hereby is
established and created, and that the
designation and numb40er of shares thereof
and the voting and other powers, preferences
and relative, participating, optional or
other rights of the shares of such series
and the qualifications, limitations and
restrictions thereof are as follows:
$23.75 Convertible Preferred Stock
1. Designation and Amount: There shall be a series of Preferred Stock
designated as "$23.75 Convertible Preferred Stock" and the number of shares
constituting such series shall be 184,000. Such series is referred to herein as
the "Preferred Stock".
2. Stated Capital. The amount to be represented in stated capital at
all times for each share of Preferred Stock shall be $.05.
3. Rank. All shares of Preferred Stock shall rank prior to all of the
Corporation's Common Stock, par value $.05 per share (the "Common Stock"), now
or hereafter issued and all of the Corporation's Series A Participating
Preferred Stock (the "Series A Preferred Stock"), both as to payment of
dividends and as to distributions of assets upon liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary.
4. Dividends. The holders of the shares of Preferred Stock shall be
entitled to receive, when, as and if declared by the Board of Directors of the
Corporation or a duly authorized committee thereof, out of funds legally
available therefor, cumulative cash dividends at the rate of $23.75 per share
per annum on March 31, June 30, September 30, and December 31 of each year,
commencing September 30, 1990; provided that, if on any such day banks in The
City of New York are authorized or required to close, dividends otherwise
payable on such day shall be payable on the next day that banks in The City of
New York are not authorized or required to close. Each dividend on the Preferred
Stock shall be payable to holders of record as they appear on the stock register
of the Corporation on such record date, which shall be no more than forty days
prior to the payment date therefor, as shall be fixed by the Board of Directors
of the Corporation or a duly authorized committee thereof.
The dividends on the shares of Preferred Stock shall be cumulative from
the date of first issuance and shall be deemed to accrue from day to day
regardless of whether or not the Corporation shall have funds or assets
available for the payment of such dividends. The amount of dividends payable on
each share of Preferred Stock for each quarterly dividend period shall be
computed by dividing the annual dividend rate by four. The amount of dividends
payable for the initial dividend period and for any period shorter than a full
quarterly dividend period shall be computed on the basis of a 360-day year of
twelve 30-day months.
Holders of shares of Preferred Stock shall not be entitled to any
dividend, whether payable in cash, property or stock, in excess of full
dividends (including accrued dividends, if any) on shares of Preferred Stock. No
interest or sum of money in lieu of interest shall be payable in respect of any
dividend or payments which may be in arrears.
2
Dividends in arrears payable, if declared, but not paid on any
quarterly dividend payment date may be declared by the Board of Directors of the
Corporation or a duly authorized committee thereof and paid on any date fixed by
the Board of Directors of the Corporation or a duly authorized committee
thereof, whether or not a quarterly dividend payment date, to the holders of
record of the shares of Preferred Stock, as they appear on the stock register of
the Corporation on such record date, which shall be no more than forty days
prior to the payment date therefor, as shall be fixed by the Board of Directors
of the Corporation or a duly authorized committee thereof.
The Corporation may not declare or pay any dividend or make any
distribution of assets (other than dividends paid or other distributions made in
stock of the Corporation ranking junior to the Preferred Stock as to the payment
of dividends and the distribution of assets upon liquation, dissolution or
winding up) on, or redeem, purchase or otherwise acquire (except upon conversion
or exchange for stock of the Corporation ranking junior to the Preferred Stock
as to the payment of dividends and the distribution of assets upon liquidation,
dissolution or winding up), shares of Common Stock, of Series A Preferred Stock
or of any other Stock of the Corporation ranking junior to the Preferred Stock
as to the payment of dividends or the distribution of assets upon liquidation,
dissolution or winding up, unless all accrued and unpaid dividends on the
Preferred Stock for all prior dividend periods have been or contemporaneously
are declared and paid and the full quarterly dividend on the Preferred Stock for
the current dividend period has been or contemporaneously is declared and set
apart for payment.
Whenever all accrued dividends on the Preferred Stock are not pad in
full, the Corporation may not declare or pay dividends or make any distribution
of assets (other than dividends paid or other distributions made in stock of the
Corporation ranking junior to the Preferred Stock as to the payment of dividends
and the distribution of assets upon liquidation, dissolution or winding up) on
any other stock of the Corporation ranking on a parity with the Preferred Stock
as to the payment of dividends unless (i) all accrued and unpaid dividends on
the Preferred Stock for all prior dividend periods are contemporaneously
declared and paid or (ii) all dividends declared and paid or set aside for
payment or other distributions made on Preferred Stock and any other stock of
the Corporation ranking on a parity with the Preferred Stock as to the payment
of dividends are declared and paid or set apart for payment or made pro rata so
that the amount of dividends declared and paid or set apart for payment or other
distributions made per share on the Preferred Stock and such other stock of the
Corporation will bear the same ratio that accrued and unpaid dividends per share
on the Preferred Stock and such other stock of the Corporation bear to each
other.
3
Whenever all accrued dividends on the Preferred Stock are not paid in
full, the Corporation may not redeem, purchase or otherwise acquire (except upon
conversion or exchange for stock of the Corporation ranking junior to the
Preferred Stock as to the payment of dividends and the distribution of assets
upon liquidation, dissolution or winding up) other stock of the Corporation
ranking on a parity with the Preferred Stock as to the payment of dividends or
the distribution of assets upon liquidation, dissolution or winding up unless
(i) all outstanding shares of the Preferred Stock are contemporaneously redeemed
or (ii) a pro rata redemption is made of shares of Preferred Stock and such
other stock of the Corporation, with the amount allocable to each series of such
stock determined on the basis of the aggregate liquidation preference of the
outstanding shares of each series and the shares of each series being redeemed
only on a pro rata basis.
5. Liquidation of Preference. Upon the dissolution, liquidation or
winding up of the Corporation, whether voluntary or involuntary, the holders of
the shares of Preferred Stock shall be entitled to receive and to be paid out of
the assets of the Corporation available for distribution to its stockholders
(after any payment or distribution on any stock of the Corporation ranking
senior to the Preferred Stock as to the distribution of assets upon liquidation,
dissolution or winding up and before any payment or distribution on the Common
Stock, the Series A Preferred Stock or any other stock of the Corporation
ranking junior to the Preferred Stock as to the distribution of assets upon
liquidation, dissolution or winding up) a liquidation distribution in the amount
of $250.00 per share plus an amount equal to all dividends on such shares
accumulated (whether or not earned or declared) and unpaid thereon to the date
of final distribution.
Neither the sale of all or substantially all the property or business
of the Corporation, nor the merger or consolidation of the Corporation into or
with any other corporation, nor the merger or consolidation of any other
Corporation into or with the Corporation shall constitute a liquidation,
dissolution or winding up, voluntary or involuntary, for the purposes of the
foregoing paragraph. After the payment to the holders of the shares of Preferred
Stock of the full preferential amounts provided for above, the holders of the
shares of Preferred Stock as much shall have no right or claim to any of the
remaining assets of the Corporation.
In the event the assets of the Corporation available for distribution
to the holders of the shares of Preferred Stock upon liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, shall be
insufficient to pay in full all
4
amounts to which such holders are entitled as provided above, no such
distribution shall be made on account of any other stock of the Corporation
ranking on a parity with the Preferred Stock as to the distribution of assets
upon such liquidation, dissolution or winding up unless a pro rata distribution
is made on the Preferred Stock and such other stock of the Corporation, with the
amount allocable to each series of such stock determined on the basis of the
aggregate liquidation preference of the outstanding shares of each series and
distributions to the shares of each series being made on a pro rata basis.
6. Voting Rights.
(a) General. The holders of the Preferred Stock shall have no
voting rights except as described below or as required by law. In exercising any
such vote, each outstanding share of Preferred Stock shall be entitled to one
vote.
(b) Default Voting Rights. Whenever dividends on the shares of
Preferred Stock or on the shares of any other outstanding stock of the
Corporation ranking on a parity with the Preferred Stock as to the payment of
dividends have not been paid in an aggregate amount equal to at least six
quarterly dividends on such shares (whether or not consecutive), the number of
directors of the Corporation shall be increased by two and the holders of the
shares of Preferred Stock, voting separately as a class with the holders of the
shares of such other parity stock of the Corporation on which like voting rights
have been conferred and are exercisable, shall have the exclusive right to vote
for and elect such two additional directors to the Board of Directors of the
Corporation at any meeting of stockholders of the Corporation at which directors
are to be elected held during the period such dividends remain in arrears. Each
class or series of stock entitled to vote for the additional directors shall
have a number of votes proportionate to the aggregate liquidation preference of
its outstanding shares. Such voting right will terminate when all such dividends
accrued and in default have been paid in full or set apart for payment. The term
of office of all directors so elected shall terminate immediately upon such
payment or setting apart for payment.
Whenever such right shall vest, it may be exercised initially
either at a special meeting of holders of Preferred Stock or at any annual
stockholders' meeting, but thereafter it shall be exercised only at annual
stockholders' meetings. Any director who shall have been elected by the holders
of Preferred Stock as a class pursuant to this subparagraph (b) shall hold
office for a term expiring (subject to the earlier termination of the default in
dividends) at the next annual meeting of stockholders, and during such term
5
may be removed at any time, either for or without cause, by, and only by, the
affirmative votes of the holders of record of a majority of the outstanding
shares of Preferred Stock given at a special meeting of such stockholders called
for such purpose, and any vacancy created by such removal may also be filled at
such meeting. Any vacancy caused by the death or resignation of a director who
shall have been elected by the holders of Preferred Stock as a class pursuant to
this subparagraph (b) may be filled only by the holders of all outstanding
Preferred Stock at a meeting called for such purpose.
Whenever a meeting of the holders of Preferred Stock is
permitted or required to be held pursuant to this subparagraph (b), such meeting
shall be held at the earliest practicable date and the Secretary of the
Corporation shall call such meeting, providing written notice to all holders of
record of Preferred Stock in accordance with law, upon the earlier of the
following:
(a) as soon as reasonably practicable following the
occurrence of the event or events permitting or requiring
such meeting hereunder; or
(b) within twenty (20) days following receipt by said
Secretary of a written request for such a meeting, signed
by the holders of record of at least twenty percent (20%)
of the shares of Preferred Stock then outstanding.
In the event that such meeting shall not be called by the
proper corporate officers within twenty (20) days after the receipt of such
request by the Secretary of the Corporation, or within twenty-five (25) after
the mailing of same within the United States of America by registered mail
addressed to the Secretary of the Corporation at its principal office, then the
holders of record of at least twenty percent (20%) of the shares of Preferred
Stock then outstanding may designate of their number to call such a meeting at
the expense of the Corporation, and such meeting may be called by such person in
the manner and at the place provided in this Section 6. Any holder of Preferred
Stock so designated to call such meeting shall have access to the stock books of
the Corporation for the purpose of causing a meeting of such stockholders to be
so called.
Any provision of this subparagraph (b) to the contrary
notwithstanding, no Special meeting of the holders of shares of Preferred Stock:
(i) shall be held during the ninety (90) day period next preceding the date
fixed for the annual meeting of stockholders of the Corporation; or (ii) shall
be required to be called or held in violation of any law, rule or regulation.
6
Any meeting of the holders of all outstanding Preferred Stock
entitled to vote as a class for the election or removal of directors shall be
held at the place at which the last annual meeting of stockholders was held. At
such meeting, the presence in person or by proxy of the holders of a majority of
the outstanding shares of all outstanding Preferred Stock shall be required to
constitute a quorum; in the absence of a quorum, a majority of the holders
present in person or by proxy shall have the power to adjourn the meeting from
time to time without notice, other than announcement at the meeting, until a
quorum shall be present.
(c) Class Voting Rights. In addition, so long as any Preferred
Stock is outstanding, the Corporation shall not, without the affirmative vote or
consent of the holders of at least 66-2/3 percent of all the outstanding shares
of Preferred Stock voting separately as a class, (i) amend, alter or repeal any
provision of the Restated Certificate of Incorporation or the By-Laws of the
Corporation so as adversely to affect the relative rights, preferences,
qualifications, limitations or restrictions of the Preferred Stock, (ii)
authorize, issue or increase the authorized amount of any class or series of
stock, or any security convertible into stock of such class or series, ranking
senior to the Preferred Stock as to the payment of dividends or the distribution
of assets upon liquidation, dissolution or winding up of the Corporation or
(iii) effect any reclassification of the Preferred Stock.
The affirmative vote or consent of the holders of a majority of all the
outstanding shares of Preferred Stock, voting or consenting separately as a
class, shall be required to (A) authorize any sale, lease or conveyance of all
or substantially all of the assets of the Corporation, or (B) approve any
merger, consolidation or compulsory share exchange to which the Corporation is a
party, unless (i) the terms of such merger, consolidation or compulsory share
exchange do not provide for a change in the terms of the Preferred Stock and
(ii) the Preferred Stock is on a parity with or prior to (in respect of the
payment of dividends and the distribution of assets upon liquidation,
dissolution or winding up) any other class or series of capital stock authorized
by the surviving corporation, other than any class or series of stock of the
Corporation ranking senior as to the Preferred Stock either as to the payment of
dividends or the distribution of assets upon liquidation, dissolution or winding
up of the Corporation and previously authorized with the consent of holders of
Preferred Stock as described herein (or other than any capital stock into which
such prior stock is converted as a result of such merger, consolidation or
compulsory share exchange).
7
7. Redemption at Option of the Corporation. The shares of Preferred
Stock shall not be redeemable prior to July 1, 1993. Commencing July 1, 1993,
the shares of Preferred Stock will be redeemable for cash, in whole or in part,
at any time at the option of the Corporation, if redeemed during the 12-month
period beginning July 1 of the year specified below, at the following redemption
prices;
Price
Year Per Share
- ---- ---------
1993...................... $ 273.7500
1994...................... 270.3571
1995...................... 266.9643
1996...................... 263.5714
1997...................... 260.1786
1998...................... 256.7857
1999...................... 253.3929
and thereafter at $250.00 per share, plus in each case accrued and unpaid
dividends to the redemption date (the "Redemption Price")
If less than all the outstanding shares of Preferred Stock are to be
redeemed, the Corporation shall select those to be redeemed pro rata or by lot
or in such other manner as the Board of Directors of the Corporation or a duly
authorized committee thereof may determine. There shall be no mandatory
redemption or sinking fund obligation with respect to the Preferred Stock.
Not more than 60 nor less than 30 days prior to the redemption date,
notice by first class mail, postage prepaid, shall be given to the holders of
record of the Preferred Stock to be redeemed, addressed to such stockholders at
their last addresses as shown on the books of the Corporation. Each such notice
of redemption shall specify the date fixed for redemption, the Redemption Price,
the place or places of payment, that payment will be made upon presentation and
surrender of the shares of Preferred Stock, that on and after the redemption
date, dividends will cease to accumulate on such shares, the then-effective
conversion rate pursuant to Section 9 and that the right of holders to convert
shall terminate at the close of business on the redemption date.
Any notice which is mailed as herein provided shall be conclusively
presumed to have been duly given, whether or not the holder of the 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
8
for the redemption of any other shares of Preferred Stock. On or after the date
fixed for redemption as stated in such notice, each holder of the shares called
for redemption shall surrender the certificate evidencing such shares to the
Corporation at the place designated in such notice and shall thereupon be
entitled to receive payment of the Redemption Price. If less than all the shares
represented by any such surrendered certificate are redeemed, a new certificate
shall be issued representing the unredeemed shares. If, on the date fixed for
redemption, funds necessary for the redemption shall be available therefor and
shall have irrevocably deposited or set aside, then, notwithstanding that the
certificates evidencing any shares so called for redemption shall not have been
surrendered, the dividends with respect to the shares so called shall cease to
accumulate after the date fixed for redemption, the shares shall no longer be
deemed outstanding, the holders thereof shall cease to be stockholders with
respect to the shares so called for redemption (except the right of the holders
to receive the Redemption Price without interest upon surrender of their
certificates therefor) shall terminate.
8. Contingent Redemption at Option of Holder. In the event that there
occurs a Designated Event (as hereinafter defined) with respect to the
Corporation, each holder of shares of Preferred Stock shall have the right, at
the holder's option, to require the Corporation to redeem all or any part of
such holder's shares of Preferred Stock on the date (the "Contingent Redemption
Date") that is 100 days after the rating Decline, at $250.00 per share plus
accrued and unpaid dividends to the Contingent Redemption Date.
On or before the twenty-eighth day after the Designated Event, the
Corporation is obligated to notify the transfer agent for the Preferred Stock of
such event, and promptly thereafter to mail, or cause to be mailed, to each
holder of record of the shares of Preferred Stock notice regarding the
Designated Event and the redemption right. The Corporation shall use its best
efforts to cause such notice to be disseminated to beneficial owners of the
Preferred Stock in accordance with Rule 13e-4(e) (1) under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). The notice shall state
the Contingent Redemption Date, the date by which the redemption right must be
exercised, the applicable price for such shares of Preferred Stock and the
procedure which the holder must follow to exercise this right. The Corporation
will cause a copy of such notice to be published in an English language
newspaper of general circulation in the Borough of Manhattan, The City of New
York. To exercise this right, the holder of shares of Preferred Stock must
deliver at least ten days prior to the Contingent Redemption Date (the
"Contingent Redemption Record Date") written notice to the Corporation (or an
9
agent designated by the Corporation for such purpose) of the holder's exercise
of such right, together with the certificate for the shares with respect to
which the right is being exercised, duly endorsed for transfer. Such written
notice may be withdrawn at any time prior to the Contingent Redemption Record
Date.
As used herein, a "Designated Event" shall be deemed to have occurred
at such times as (i) a "person" or "group" (within the meaning of Sections 13(d)
and 14 (d) (2) of the Exchange Act), other than a holding company created as
permitted by clause (ii)(a) of this paragraph, becomes the "beneficial owner"
(as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
more than 30% of the total voting power of all classes of stock then outstanding
of the Corporation normally entitled to vote in elections of directors ("Voting
Stock"), (ii) the Corporation consolidates with or merges into another
corporation or conveys, transfers or leases all or substantially all of its
assets to any person, or any corporation consolidates with or merges into the
Corporation, in either event pursuant to a transaction in which Voting Stock, of
the Corporation is changed into or exchanged for cash, securities or other
property, provided that such transactions (A) involving solely the creation of a
public holding company or the reincorporation of the Corporation in another
state or (B) involving the exchange of the Corporation's Voting Stock as
consideration in the acquisition of another business or businesses, without
change or exchange of the Corporation's outstanding Voting Stock, shall be
excluded from the operation of this clause (ii); or (iii) the Corporation, any
subsidiary of the Corporation or any employee benefit plan maintained by the
Corporation or any subsidiary of the Corporation purchases or otherwise
acquires, directly or indirectly, beneficial ownership of Voting Stock of the
Corporation if, after giving affect to such purchase or acquisition, the
Corporation (together with its subsidiaries and an such plans) shall have
acquired, within any 12-month period, a number of shares of the Corporation's
Voting Stock equal to 30% or more of the number of shares of the Corporation's
Voting Stock outstanding on the date immediately prior to the first such
purchase or acquisition during such 12-month period (as adjusted in such manner
as the Corporation reasonably deems appropriate to reflect any stock dividends
or stock splits during such period); or (iv) on any date (a "Calculation Date")
the Corporation makes any distribution or distributions of cash, property or
securities (other than regular dividends and distributions of capital stock, or
rights to acquire capital stock, of the Corporation) to holders of Voting Stock
of the Corporation or the Corporation, any subsidiary or any employee benefit
plan maintained by the Corporation or any subsidiary purchases or otherwise
acquires, directly or indirectly, beneficial ownership of Voting Stock of the
Corporation
10
and the sum of the fair market value (as determined in good faith by the
Corporation's Board of Directors, which determination shall be conclusive) of
such distribution or purchase, plus the fair market value of all other such
distributions by the Corporation and purchases by the Corporation together with
its subsidiaries and any such plans which have occurred during the preceding
12-month period, is at least 30% of the fair market value of the outstanding
Voting Stock of the Corporation (based on the closing sale price of the Voting
Stock of the Corporation (based on the closing sale price of the Voting Stock as
reported in The Wall Street Journal). This percentage is calculated on each
Calculation Date by determining the percentage of the fair market value of the
Corporation's outstanding Voting Stock as of such Calculation Date which is
represented by the fair market value of the distributions and purchases which
have occurred on such date and adding to that percentage all of the percentages
which have been similarly calculated on the Calculation Dates of all such
distributions and purchases during the preceding 12-month period.
As used in the preceding paragraph, "Company" shall mean the
Corporation or any holding company permitted under clause (ii) (a) thereof which
may be created.
9. Conversion Rights.
(a) Right to Covert. Subject to and upon compliance with the
provisions of this Section, the holder of any Shares of Preferred Stock shall
have the right, at his option, at any time (except that, with respect to any
Shares of Preferred Stock which shall be called for redemption, such right shall
terminate, except as provided in the third paragraph of Section 9(b) hereof, at
the close of business on the date fixed for redemption of such shares of
Preferred Stock unless the Corporation shall default in payment due upon
redemption thereof) to convert any number of shares of Preferred Stock that is
an integral multiple of 1/10th of one share into fully paid and nonassessable
shares of Common Stock (as such shares shall be constituted) initially at the
conversion price of $9.375 per share of Common Stock, subject to adjustment as
described below (such price or adjusted price being referred to herein as the
"Conversion Price"), by surrender of the Preferred Stock so to be converted in
whole or in part in the manner provided in Section 9(b) below. For purposes of
conversion, each share of Preferred Stock shall be valued at $250, which shall
be divided by the then current Conversion Price in effect to determine the
number of full shares issuable upon conversion thereof.
For the purpose of this Section 9, the term "Common Stock" shall
initially mean the class designated as Common Stock, par value $.05 per share,
of the Corporation as of the date hereof, subject to adjustment as hereinafter
provided.
11
(b) Exercise of Conversion Privilege; Issuance of Common Stock
on Conversion; No Adjustment for Interest or Dividends. In order to exercise the
conversion privilege, the holder of any shares of Preferred Stock to be
converted in whole or in part shall surrender the certificate representing such
shares of Preferred Stock (the "Preferred Stock Certificate") at the office of
the transfer agent for the Preferred Stock, and shall give written notice of
conversion in the form provided on the Preferred Stock Certificates (or such
other notice which is acceptable to the Corporation) to the Corporation at such
office or agency that the holder elects to convert such shares of Preferred
Stock represented by the Preferred Stock Certificates so surrendered or the
portion thereof specified in said notice. Such notice shall also state the name
or names (with address) in which the certificate or certificates for shares of
Common Stock which shall be issuable on such conversion shall be issued, and
shall be accompanied by transfer taxes, if required pursuant to Section 9(f)
hereof. Each Preferred Stock Certificate surrendered for conversion shall,
unless the shares issuable on conversion are to be issued in the same name as
the registration of such Preferred Stock Certificate, by duly endorsed by, or be
accompanied by instruments of transfer in form satisfactory to the Corporation
duly executed by, the holder or his duly authorized attorney.
As promptly as practicable after the surrender of such Preferred Stock
Certificate and the receipt of such notice and funds, if any, as aforesaid, the
Corporation shall issue and shall deliver at such office or agency to such
holder, or on his written order, a certificate or certificates for the number of
full shares issuable upon the conversion of such shares Preferred Stock
represented by the Preferred Stock Certificates so surrendered or portion
thereof in accordance with the provisions of this Section and a check or cash in
respect of any fractional interest in respect of a share of Common Stock arising
upon such conversion as provided in Section 9(c) hereof. In case less than all
of the shares of Preferred Stock represented by a Preferred Stock Certificate
surrendered for conversion are to be converted, the Corporation shall deliver to
or upon the written order of the holder of such Preferred Stock Certificate a
new Preferred Stock Certificate representing the shares of Preferred Stock not
converted. If a holder fails to notify the Corporation of the number of shares
which such holder wishes to convert, such holder shall be deemed to have elected
to covert all shares represented by the certificate or certificates surrendered
for conversion.
Each conversion shall be deemed to have been effected on the date on
which such Preferred Stock Certificate shall have been surrendered and such
notice shall have been received by the Corporation, as aforesaid, and the person
in whose name any certificate
12
or certificates for shares of Common Stock shall be issuable upon such
conversion shall be deemed to have become on said date the holder of record of
the shares represented thereby; provided, however, that any such surrender on
any date when the stock transfer books of the Corporation shall be closed shall
constitute the person in whose name the certificates are to be issued as the
record holder thereof for all purposes on the next succeeding day on which such
stock transfer books are open, but such conversion shall be at the conversion
price in effect on the date upon which such Preferred Stock Certificate shall
have been surrendered.
The dividends due on any Preferred Stock surrendered for conversion
during the period from the close of business on the record date for any dividend
payment date to the opening of business on such dividend payment date shall be
paid to the record holder of such Preferred Stock, notwithstanding such
conversion.
(c) Cash Payments in Lieu of Fractional Shares. No fractional shares of
Common Stock or scrip representing fractional shares shall be issued upon
conversion of Preferred Stock. The number of full shares of Common Stock which
shall be issuable to a holder of Preferred Stock upon conversion shall be
computed on the basis of the whole number of shares of Preferred Stock (or
specified portions thereof to the extent permitted hereby) surrendered by such
holder for conversion. If any fractional share of Common Stock would be issuable
upon the conversion of any shares of Preferred Stock, the Corporation shall make
an adjustment therefor in cash at the current market value thereof. The current
market value of a share of Common Stock shall be the last reported price on the
first day (which is not a legal holiday as defined below) immediately preceding
the day on which the shares of Preferred Stock are deemed to have been converted
and such last reported price shall be determined as provided in the last
sentence of subsection (D) of Section 9(d).
The term "Legal Holiday" shall mean a legal holiday or a day on which
banking institutions in Los Angeles or any national securities exchanges are
authorized by law or by executive order to close.
(d) Adjustment of Conversion Price. The conversion price shall be
adjusted from time to time as follows:
(A) In case the Corporation shall (i) pay a dividend or make a
distribution in shares of its capital stock (whether shares of Common Stock or
of capital stock of any other class), (ii) subdivide its outstanding Common
Stock or (iii) combine its outstanding Common Stock into a smaller number of
shares, the conversion price in effect
13
immediately prior thereto shall be adjusted so that the holder of any share of
Preferred Stock thereafter surrendered for conversion shall be entitled to
receive the number of shares of capital stock of the Corporation which he would
have owned or have been entitled to receive after the happening of any of the
events described above had such share of Preferred Stock been converted
immediately prior to the happening of such event. An adjustment made pursuant to
this subsection (A) shall become effective immediately after the record date in
the case of a dividend and shall become effective immediately after the
effective date in the case of subdivision or combination. If, as a result of an
adjustment made pursuant to this subsection (A), the holder of any share of
Preferred Stock thereafter surrendered for conversion shall become entitled to
receive shares of two or more classes of capital stock of the Corporation, the
Board of Directors (whose determination shall be conclusive and shall be
described in a written statement filed with the transfer agent for the Preferred
Stock) shall determine the allocation of the adjusted conversion price between
or among shares of such classes of capital stock.
(B) In case the Corporation shall issue rights or warrants (other than
rights pursuant to the Rights Agreement, dated as of February 10, 1988, between
the company and Bank of America NT&SA, as such agreement may be amended from
time to time (the "Rights")) to all holders of its Common Stock entitling them
(for a period expiring within 90 days after the record date mentioned below) to
subscribe for or purchase Common Stock at a price per share less than the
current market price per share of Common Stock (as defined in subsection (D)
below) at the record date of the determination of stockholders entitled to
receive such rights or warrants, the conversion price in effect immediately
prior thereto shall be adjusted so that the same shall equal the price
determined by multiplying the conversion price in effect immediately prior to
the date of issuance of such rights or warrants by a fraction of which the
numerator shall be the number of shares of Common Stock outstanding on the date
of issuance of such rights or warrants plus the number of shares which the
aggregate offering price of the total number of shares so offered would purchase
at such current market price, and of which the denominator shall be the number
of shares of Common Stock outstanding on the date of issuance of such rights or
warrants plus the number of additional shares of Common Stock offered for
subscription or purchase. Such adjustment shall be made successively whenever
any such rights or warrants are issued, and shall become effective immediately
14
after such record date. In determining whether any rights or warrants entitle
the holders to subscribe for or purchase shares of Common Stock at less than
such current market price, and in determining the aggregate offering price of
such shares, there shall taken into account any consideration received by the
Corporation for such rights or warrants, the value of such consideration, if
other than cash, to be determined by the Board of Directors.
(C) In case the Corporation shall distribute to all holders of its
Common Stock evidences of its indebtedness or assets (excluding cash dividends
or distributions paid from retained earnings of the Corporation) or rights or
warrants (other than the Rights) to subscribe for or purchase Common Stock
(excluding those referred to in subsection (B) above), then in each such case
the conversion price shall be adjusted so that the same shall equal the price
determined by multiplying the conversion price in effect immediately prior to
the date of such distribution by a fraction of which the numerator shall be the
current market price per share (as defined in subsection (D) below) of the
Common Stock on the record date mentioned below less the then fair market value
(as determined by the Board of Directors of the Corporation, whose determination
shall be conclusive), of the portion of the assets or evidences of indebtedness
so distributed or of such rights or warrants applicable to one share of Common
Stock, and the denominator shall be the current market price per share (as
defined in subsection (D) below) of the Common Stock. Such adjustment shall
become effective immediately after the record date for the determination of
shareholders entitled to receive such distribution.
(D) For the purpose of any computation under subsections (B) and (C)
above, the current market price per share of Common Stock at any date shall be
deemed to be the average of the last reported prices for the ten consecutive
days (which are not Legal Holidays as defined in Section 9(b)) next preceding
the day in question. The last reported price for each day shall be the last
reported sale price of Common Stock on the New York Stock Exchange (or, if not
listed on the New York Stock Exchange, then on such other exchange on which the
Common Stock is listed as the Corporation may designate) on such day (which is
not a Legal Holiday as defined in Section 9(b)), or it there shall not have been
a sale on such day, on the basis of the average of the bid and asked quotations
therefor on such exchange on such day, or if the Common Stock shall not then be
listed on any exchange, at the highest bid quotation in the over-the-counter
market on such as reported by National Quotation Bureau, Incorporated or similar
quotation service.
15
(E) No adjustment in the conversion price shall be required unless such
adjustment would require an increase or decrease of at least 1% in such price;
provided, however, that any adjustments which by reason of this subsection (E)
are not required to be made shall be carried forward and taken into account in
any subsequent adjustment. All calculations under this Section 9 shall be made
to the nearest cent or to the nearest one-thousandth of a share, as the case may
be. Anything in this Section 9(d), to the contrary notwithstanding, the
Corporation shall be entitled to make such reductions in the conversion price,
in additional to those required by this Section 9(d), as it in its discretion
shall determine to be advisable in order that any stock dividends, subdivision
of shares, distribution of rights to purchase stock or securities, or a
distribution of securities convertible into or exchangeable for stock hereafter
made by the Corporation to its stockholders shall not be taxable. The Board of
Directors shall have the power to resolve any ambiguity or correct any error in
this Section 9(d) and to authorize the filing of a Certificate of Correction
with respect to any such ambiguity or error.
(F) Whenever the conversion price is adjusted, as herein provided, the
Corporation shall promptly file with the transfer agent of the Preferred Stock
an Officers' Certificate setting forth the conversion price after such
adjustment and setting forth a brief statement of the facts requiring such
adjustment. Promptly after delivery of such certificate, the Corporation shall
prepare a notice of such adjustment of the conversion price setting forth the
adjusted conversion price and the date on which such adjustment becomes
effective and shall mail such notice of such adjustment of the conversion price
to the holders of Preferred Stock at their address as appearing in the stock
transfer books of the Corporation.
(G) In any case in which this Section 9(d) provides that an adjustment
shall become effective immediately after a record date for an event, the
Corporation may defer until the occurrence of such event (i) issuing to the
holder of any shares of Preferred Stock converted after such record date and
before the occurrence of such event the additional shares of Common Stock
issuable upon such conversion by reason of the adjustment required by such event
over and above the Common Stock issuable upon such conversion before giving
effect to such adjustment and (ii) paying to such holder any amount in cash in
lieu of any fraction pursuant to Section 9(c).
16
(H) The Corporation at any time may reduce the Conversion Price,
temporarily or otherwise, by any amount but in no event shall such Conversion
Price be less than the par value of the Common Stock at the time of such
reduction is made.
Whenever the Conversion Price is reduced pursuant to
this paragraph (H), the Corporation shall mail to the holders
of shares of Preferred Stock a notice of the reduction. The
Corporation shall mail the notice at least 15 days before the
date the reduced Conversion Price takes effect. The notice
shall state the reduced Conversion Price and the period in
which it will be in effect. A reduction in the Conversion
Price pursuant to this paragraph (H) shall not change or
affect the Conversion Price otherwise in effect for purposes
of paragraphs A, B and C of this Section 9 (d).
(e) Reclassification, Consolidation, Merger or Sale of Assets.
In case of any reclassification of the Common Stock, any consolidation of the
Corporation with, or merger of the Corporation into, any other person, any
merger of another person into the Corporation (other than a merger which does
not result in any reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock of the Corporation), any sale or transfer of
all or substantially all of the assets of the Corporation or any compulsory
share exchange pursuant to which share exchange the Common Stock is converted
into other securities, cash or other property, then lawful provision shall be
made as part of the terms of such transaction whereby the holder of each share
of Preferred Stock then outstanding shall have the right thereafter, during the
period such share shall be convertible, to convert such share only into the kind
and amount of securities, cash and other property receivable upon such
reclassification, consolidation, merger, sale, transfer or share exchange by a
holder of the number of shares of Common Stock of the Corporation into which
such share of Preferred Stock might have been converted immediately prior to
such reclassification, consolidation, merger, sale, transfer or share exchange
assuming such holder of Common Stock of the Corporation (i) is not a person with
which the Corporation consolidated or into which the Corporation merged or which
merged into the Corporation, to which such sale or transfer was made or a party
to such share exchange, as the case may be ("constituent person"), or an
affiliate of a constituent person and (ii) failed to exercise his rights of
election, if any, as to the kind or amount of securities, cash and other
property receivable upon such reclassification, consolidation, merger, sale,
transfer or share exchange (provided that if the kind or amount of securities,
cash and other property receivable upon such
17
reclassification, consolidation, merger, sale, transfer or share exchange is not
the same for each share of Common Stock of the Corporation held immediately
prior to such consolidation, merger, sale or transfer by others than a
constituent person or an affiliate thereof and in respect of which such rights
of election shall not have been exercised (" non-electing share"), then the kind
and amount of securities, cash and other property receivable upon such
reclassification, consolidation, merger, sale, transfer or share exchange by
each non-electing share shall be deemed to be the kind and amount so receivable
per share by a plurality of the non-electing shares). The Corporation, the
person formed by such consolidation or resulting from such merger or which
acquires such assets or which acquires the Corporation's shares, as the case may
be, shall make provisions in its certificate or articles of incorporation or
other constituent document to establish such right. Such certificate or articles
of incorporation or other constituent document shall provide for adjustments
which, for events subsequent to the effective date of such certificate or
articles of incorporation or other constituent document, shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Section
9. The above provisions shall similarly apply to successive reclassifications,
consolidations, mergers, sales, transfers or share exchanges.
(f) Taxes on Shares Issued. The issue of stock certificates on
conversions of Preferred Stock shall be made without charge to the converting
holder of Preferred Stock for any tax in respect of the issue thereof. The
Corporation shall not, however, be required to pay any tax which may be payable
in respect of any transfer involved in the issue and delivery of stock in any
name other than that of the holder of any Preferred Stock converted, and the
Corporation shall not be required to issue or deliver any such stock certificate
unless and until the person or persons requesting the issue thereof shall have
paid to the Corporation the amount of such tax or shall have established to the
satisfaction of the Corporation that such tax has been paid.
(g) Reservation of Shares; Shares to Be Fully Paid; Compliance
with Governmental Requirements; Listing of Common Stock. The Corporation shall
at all times reserve and keep available out of its authorized Common Stock the
full number of shares of Common Stock deliverable upon the conversion of all
outstanding shares of Preferred Stock and shall take all such corporate action
as may be required from time to time in order that it may validly and legally
issue fully paid and non-assessable shares of Common Stock upon conversion of
the Preferred Stock.
Before taking any action which would cause an adjustment
reducing the
18
conversion price below the then par value, if any, of the shares of Common
Stock issuable upon conversion of the Preferred Stock, the Corporation will take
all corporate action which may, in the opinion of its counsel, be necessary in
order that the Corporation may validly and legally issue shares of such Common
Stock at such adjusted conversion price.
All share of Common Stock which may be issued upon conversion of
Preferred Stock will upon issue be fully paid and nonassessable by the
Corporation and free from all taxes, liens and charges with respect to the issue
thereof.
If any share of Common Stock to be provided for the purpose of
conversion of Preferred Stock hereunder require registration with or approval of
any governmental authority under any Federal or state law before such shares may
be validly issued upon conversion, the Corporation will in good faith and as
expeditiously as possibly endeavor to secure such registration or approval, as
the case may be.
So long as the Common Stock shall be listed on the New York Stock
Exchange or any other national securities exchange the Corporation will, if
permitted by the rules of such exchange, list and keep listed and for sale so
long as the Stock issuable upon conversion of the Preferred Stock.
(h) Notice to Holder Prior to Certain Actions. In case:
(A) the Corporation shall declare a dividend (or any other
distribution) of its Common Stock (other than in cash out of retained earnings);
or
(B) the Corporation shall authorize the granting to the
holders of its Common Stock of rights or warrants to subscribe for or purchase
any share of any class or any other rights or warrants; or
(C) of any reclassification of the Common Stock of the
Corporation (other than a subdivision or combination of its outstanding Common
Stock, or a change in par value, or from par value to no par value, or from no
par value to par value) or, of any consolidation or merger to which the
Corporation is a party and for which approval of any shareholders of the
Corporation is required, or of the sale or transfer of all or substantially all
of the assets of the Corporation; or
(D) of the voluntary or involuntary dissolution, liquidation
or winding
19
up of the Corporation; the Corporation shall cause to be filed with the
transfer agent for the Preferred stock and to be mailed to each holder of
Preferred Stock at their address appearing on the stock transfer books of the
Corporation, as promptly as possible but in any event at least fifteen days
prior to the applicable date hereinafter specified, a notice stating (x) the
date on which a record is to be taken for the purpose of such dividend,
distribution or rights or warrants, or, if a record is not to be taken, the date
as of which the holders of Common Stock of record to be entitled to such
dividend, distribution or rights are to be determined, or (y) the date on which
such reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up is expected to become effective, and the date as of
which it is expected that holders of Common Stock of record shall be entitled to
exchange their Common Stock for securities or other property deliverable upon
such reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up. Failure to give such notice, or any defect therein,
shall not affect the legality or validity of such dividend, distribution,
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding-up.
10. Outstanding Shares. For purposes of this Certificate of
Designation, all shares of Preferred Stock shall be deemed outstanding except
(i) from the date fixed for redemption pursuant to Section 7 or 8 hereof, all
shares of Preferred Stock that have been so called for redemption under Section
7 or have been required to be redeemed by the holder thereof under Section 8 if
funds necessary for the redemption of such shares are available and shall have
been irrevocably deposited or set aside and, in the case of a redemption under
Section 8, have been deposited in trust with a bank having a combined capital
and surplus in excess of $10,000,000, as trustee, for the benefit of the holders
of such shares to be redeemed for payment of the relevant redemption price; (ii)
from the date of surrender of certificates representing shares of Preferred
stock, all shares of Preferred Stock converted into Common Stock; and (iii) from
the date of registration of transfer, all shares of Preferred Stock held of
record by the Corporation or any subsidiary of the Corporation.
11. Partial Payments. If at any time the Corporation does not
pay amounts sufficient to redeem all Preferred Stock required to be redeemed by
the Corporation at such time pursuant to Section 8 hereof, then such funds which
are paid shall be applied to redeem such Preferred Stock as the Corporation may
designate by lot.
12. Status of Acquired Shares. Shares of Preferred Stock
redeemed by the Corporation, received upon conversion pursuant to Section 9 or
20
otherwise acquired by the Corporation will be restored to the status of
authorized but unissued shares of Preferred Stock, without designation as to
class, and may thereafter be issued, but not as shares of Preferred Stock.
13. Preemptive Rights. The Preferred Stock is not entitled to
any preemptive or subscription rights in respect of any securities of
the Corporation.
14. Severability of Provisions. Whenever possible, each
provision hereof shall be interpreted in a manner as to be effective
and valid under applicable law, but if any provision hereof is held to
be prohibited by or invalid under applicable law, such provision shall
be ineffective only to the extent of such prohibition or invalidity,
without invalidating or otherwise adversely affecting the remaining
provisions hereof. If a court of competent jurisdiction should
determine that a provision hereof would be valid or enforceable if a
period of time were extended or shortened or a particular percentage
were increased or decreased, then such court may make such change as
shall be necessary to render the provision in question effective and
valid under applicable law.
15. Fractional Shares. The Preferred Stock may be issued in
fractions of a share which shall entitle the holder, in proportion to
such holder's fractional shares, to exercise voting rights, receive
dividends, participate in distributions and to have the benefit of all
other rights of holders of Preferred Stock.
16. Reversion to Corporation. Subject to applicable escheat
laws, any monies set aside by the Corporation in respect of any payment
with respect to shares of the Preferred Stock, or dividends thereon,
and unclaimed at the end of two years from the date upon which such
payment is due and payable shall revert to the general funds of the
Corporation, after which reversion the holders of such shares shall
look only to the general funds of the Company for the payment thereof.
Any interest accrued on funds so deposited shall be paid to the
Corporation from time to time.
21
IN WITNESS WHEREOF, Countrywide Credit Industries, Inc. has caused this
certificate to be signed by Angelo R. Mozilo, its Executive Vice President, and
its corporate seal to be hereunto affixed and attested by Sandor E. Samuels, its
Secretary, this 11th day of July, 1990
COUNTRYWIDE CREDIT INDUSTRIES, INC.
By: /s/ Angelo R. Mozilo
----------------------------------------
Name: Angelo R. Mozilo
Title: Vice Chairman and Executive
Vice President
Attest:
/s/ Sandor E. Samuels
- ------------------------------------
Name: Sandor E. Samuels
Title: Secretary
22
CERTIFICATE OF CORRECTION
FILED TO CORRECT CERTAIN ERRORS
IN THE
CERTIFICATE OF DESIGNATION OF
$23.75 CONVERTIBLE PREFERRED STOCK
OF
COUNTRYWIDE CREDIT INDUSTRIES, INC.
FILED IN THE OFFICE OF THE SECRETARY OF STATE OF DELAWARE
ON JULY 12, 1990
COUNTRYWIDE CREDIT INDUSTRIES, INC., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware
(the "Corporation"),
DOES HEREBY CERTIFY:
1. The name of the Corporation is Countrywide Credit Industries, Inc.
2. A Certificate of Designation of $23.75 Convertible Preferred Stock
(the "Certificate") was filed with the Secretary of State of Delaware
on July 12, 1990 and said Certificate requires correction as permitted
by subsection (f) of Section 103 of the General Corporation Law of the
State of Delaware.
3. The inaccuracies or defects of said Certificate to be corrected are as
follows:
A. The words, ", as amended (including this Certificate of
Designation)" should be inserted following the words
"Restated Certificate of Incorporation" in the first
sentence of Section 6(c) of the Certificate, so that the
first sentence of Section 6(c) of the Certificate is
corrected to read in its entirety as follows:
(c) Class Voting Rights. In addition so long as any
Preferred Stock is outstanding the Corporation
shall not, without the affirmative vote or consent
of the holders of at least 66-2/3 percent of all
the outstanding shares of Preferred Stock voting
separately as a class, (i) amend, alter or repeal
any provision of the Restated certificate of
Incorporation, as amended (including this
Certificate of Designation)
or the By-Laws of the Corporation so as adversely
to affect the relative rights, preferences,
qualifications, limitations or restrictions of the
Preferred Stock, (ii) authorize, issue or increase
the authorized amount of any class or series of
stock, or any security convertible into stock of
such class or series, ranking senior to the
Preferred Stock as to the payment of dividends or
the distribution of assets upon liquidation,
dissolution or winding up of the Corporation or
(iii) effect any reclassification of the Preferred
Stock.
B. The words "Rating Decline" contained in the first
sentence of Section 8 of the Certificate should be
deleted and replaced with the words "Designated Event,"
so that the first sentence of Section 8 of the
Certificate is corrected to read in its entirety as
follows:
8. Contingent Redemption at Option of Holder. In
the event that there occurs a Designated Event (as
hereinafter defined) with respect to the
Corporation, each holder of shares of Preferred
Stock shall have the right, at the holder's option,
to require the Corporation to redeem all or any
part of such holder's shares of Preferred Stock on
the date (the "Contingent Redemption Date" that is
100 days after the Designation Event, at $250.00
per share plus accrued and unpaid dividends to the
Contingent Redemption Date.
C. The word "Company" in the last sentence of Section 8 of
the Certificate should be deleted and replaced with the
word "Corporation" so that the last sentence of Section
8 of the Certificate is corrected to read in its
entirety as follows:
As used in the preceding paragraph, "Corporation"
shall mean the Corporation or any holding company
permitted under clause (ii) (a) thereof which may
be created.
D. The word "or" should be inserted in the second sentence
of Section 9(e) of the Certificate so that the second
sentence of Section 9(e) of the Certificate is
corrected to read in its entirety as follows:
2
The Corporation, or the person formed by such
consolidation or resulting from such merger or
which acquires such assets or which acquires the
Corporation's shares, as the case may be, shall
make provisions in its certificate or articles of
incorporation or other constituent document to
establish such right.
E. The words "Preferred Stock" in the second-to-last line
of Section 12 of the Certificate should be deleted and
replaced with the words "preferred stock of the
Corporation" so that Section 12 of the Certificate is
corrected to read in its entirety as follows:
12. Status of Acquired Shares. Shares of Preferred
Stock redeemed by the Corporation, received
upon conversion pursuant to Section 9 or
otherwise acquired by the Corporation will be
restored to the status of authorized but
unissued shares of preferred stock of the
Corporation, without designation as to class,
and may thereafter be issued, but not as shares
of Preferred Stock.
4. As of the date hereof, no shares of $23.75 Convertible Preferred Stock
have been issued by the Corporation.
3
IN WITNESS WHEREOF, Countrywide Credit Industries, Inc. has caused this
certificate to be signed by Angelo R. Mozilo, its Executive Vice President, and
its corporate seal to be hereunto affixed and attested by Sandor E. Samuels, its
Secretary, this 16th day of July, 1990.
COUNTRYWIDE CREDIT INDUSTRIES, INC.
By: /s/ ANGELO R. MOZILO
---------------------------------------
Name: Angelo R. Mozilo
Title: Vice Chairman and
Executive Vice President
Attest:
/s/ SANDOR E. SAMUELS
- -------------------------
Name: Sandor E. Samuels
Title: Secretary
4
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
COUNTRYWIDE CREDIT INDUSTRIES, INC.
Countrywide Credit Industries, Inc., a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware, hereby
certifies as follows:
1. That at a meeting of the Board of Directors of Countrywide
Credit Industries, Inc., (the "Corporation" or "company")
resolutions were duly adopted setting forth a proposed
amendment of the Certificate of Incorporation of said
corporation, declaring said amendment to be advisable and
calling for the proposal to be presented to the shareholders
of the Corporation at the next Annual Meeting of the
Shareholders. The resolution setting forth the proposed
amendment is as follows:
RESOLVED, That the Company's Certificate of Incorporation be amended to
Increase the authorized Common Stock, and for this purpose the Third
article be amended to read as follows:
THIRD: The aggregate number of shares which the Corporation
shall have authority to issue is two hundred forty million
(240,000,000) shares of Common Stock, of the par value of five cents
($.05) per share, and one million, five hundred thousand (1,500,000)
shares of Preferred Stock, of the par value of five cents ($.05) per
share. The Preferred Stock may be issued in one or more series at such
time or times and for such consideration or considerations as the Board
of directors may determine. With respect to the Preferred Stock, the
Board of Directors of this Corporation is authorized to determine or
alter the voting rights, dividend privileges, liquidation preferences,
and all other rights, preferences, privileges, liquidation preferences,
and all other rights, preferences, privileges and restrictions,
including without limitation, conversion rights into Common Stock,
granted to or imposed upon any wholly unissued series of Preferred
Stock and, within the limitations or restrictions stated in any
resolution of the Board of Directors originally fixing the number of
shares of Preferred Stock constituting any series, to increase or
decrease (but not below the number of shares of such series then
outstanding) the number of shares of any such series subsequent to the
issue of shares of that series, to determine the designation of any
series and to fix the number of shares of any series.
2. That thereafter, the Annual Meeting of the Stockholders, of
said corporation was duly called and held, upon notice in
accordance with Section 222 of the General Corporation Law of
the State of Delaware on June 24, 1992, at which meeting the
necessary number of shares as required by statue were voted in
favor of the amendment.
3. That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, said Countrywide Credit Industries, Inc. has cause
this certificate to be signed by David S. Loeb, its President, and
Sandor E. Samuels, its Secretary, this 25th day of June, 1992.
BY: /s/ DAVID S. LOEB
-----------------------------
David S. Loeb
President
ATTEST:
/s/ SANDOR E. SAMUELS
- --------------------------
Sandor E. Samuels
Secretary
CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE
AND OF REGISTERED AGENT
It is hereby certified that:
1. The name of the corporation (hereinafter called the "corporation") is
COUNTRYWIDE CREDIT INDUSTRIES, INC.
2. The registered office of the corporation within the State of Delaware
is hereby changed to 32 Loockerman Square, Suite L-100, City of Dover
19901, County of Kent.
3. The registered agent of the corporation within the State of Delaware is
hereby changed to The Prentice-Hall Corporation System, Inc., the
business office of which is identical with the registered office of the
corporation as hereby changed.
4. The corporation has authorized the changes hereinbefore set forth by
resolution of its Board of Directors.
Signed on 1/19, 1993.
/s/ GWEN J. EELLS
---------------------------------
Gwen J. Eells, Vice President
Attest:
/s/ PATRICIA I. POE
- ----------------------------------
Patricia I. Poe Secretary
COUNTRYWIDE CREDIT INDUSTRIES, INC
CERTIFICATE OF DESIGNATIONS
PURSUANT TO SECTION 151 OF THE GENERAL CORPORATION LAW
OF THE STATE OF DELAWARE
SERIES B CUMULATIVE CONVERTIBLE
PREFERRED STOCK
I, Stanford L. Kurland, Senior Managing Director and Chief
Operating Officer, of Countrywide Credit Industries, Inc., a
corporation organized and existing under the General Corporation Law of
the State of Delaware (the "Corporation"), in accordance with the
provisions of Section 103 thereof, DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of
Directors by the Restated Certificate of Incorporation, as amended, of
the said Corporation, the said Board of Directors on January 26, 2000,
adopted the following resolutions creating a series of 1,000,000 shares
of Preferred Stock designated as Series B Cumulative Convertible
Preferred Stock:
RESOLVED, that, pursuant to the authority vested in the Board of
Directors of the Corporation in accordance with the provisions of its
Restated Certificate of Incorporation, as amended, a series of
Preferred Stock of the Corporation be, and hereby is, created and that
the designation and amount thereof and the voting powers, preferences
and relative, participating, optional or other special rights of the
shares of such series, and the qualifications, limitations or
restrictions thereon, are as follows:
SECTION 1. DESIGNATION. The series of Preferred Stock established
hereby shall be designated the "Series B Cumulative Convertible
Preferred Stock" (the "Series B Convertible Preferred Shares") and the
authorized number of Series B Convertible Preferred Shares shall be
1,000,000 shares.
SECTION 2. DIVIDENDS.
(a) Holders of outstanding Series B Convertible Preferred Shares
will be entitled to received, when and as declared by the Board of
Directors out of funds legally available therefore, cash dividend
payments in the amount of the Dividend Yield on each Series B
Convertible Preferred Share, payable quarterly for each of the quarters
ending February, May, August and November of each year, payable on the
last business day of each such quarter (each such date being
hereinafter referred to as "Preferred Dividend Payment Date"). The
first dividend shall be payable on the Preferred Dividend Payment Date
during the quarter in which the Issuance Date falls. Each such dividend
will be payable to
holders of record as they appear on the stock books of the Corporation
on such record dates, not less than 10 nor more than 50 days preceding
the related Preferred Dividend Payment Date, as shall be fixed by the
Board of Directors. Dividends on each Series B Convertible Preferred
Share shall accrue on a daily basis and compound quarterly commencing
on the Issuance Date for such share and continuing to, but not
including, the Redemption Date, Change of Control Redemption Date or
Conversion Date for such share (or other date on which such Series B
Convertible Preferred Share is no longer outstanding) and accrued
dividends for each quarterly dividend period shall accumulate as Unpaid
Dividend Yield, to the extent not paid, on the Preferred Dividend
Payment Date for the quarter in which they accrued. Dividend payments
under this paragraph (a) shall accrue whether or not the Corporation
shall have earnings, whether or not there shall be funds legally
available for the payment of such dividends and whether or not such
dividends are declared. The Unpaid Dividend Yield will earn interest
until paid at the Interest Rate, compounded quarterly from the date
payable until the date actually paid.
(b) So long as any Series B Convertible Preferred Shares shall
remain outstanding, no dividend (other than a dividend payable in
shares of Common Stock or rights to obtain Common Stock or any class of
capital stock of the Corporation which is junior to the Series B
Convertible Preferred Shares) shall be declared, nor shall the
Corporation make any other distribution or payment or set aside
anything of value for distribution or payment on, or redeem, repurchase
or otherwise acquire any shares of, the Common Stock of the Corporation
or any other class of stock or series thereof ranking junior to the
Series B Convertible Preferred Shares in the payment of dividends
(other than a redemption or purchase of shares of Common Stock of the
Corporation made for purposes of an employee incentive or benefit plan
of the Corporation or any of its subsidiaries) unless the full amount
of Unpaid Dividend Yield, if any, accumulated on all outstanding Series
B Convertible Preferred Shares through all past Preferred Dividend
Payment Dates plus accrued interest thereon shall have been paid in
full and not refunded. No dividend shall be declared on any share or
shares on any class of stock of the Corporation or series thereof
ranking on a parity with the Series B Convertible Preferred Shares in
respect of payment of dividends for any prior dividend payment period
of said parity stock unless there shall have been declared on all
shares then outstanding of the Series B Convertible Preferred Shares
terminating with or before such prior dividend payment period of such
parity stock, like proportional dividends determined ratably in
proportion to the respective Unpaid Dividend Yield accumulated to date
for all previous quarterly dividend periods on all outstanding Series B
Convertible Preferred Shares and the dividends accumulated on all
outstanding shares of said parity stock.
(c) CHANGE IN TAX LAWS.
(i) If because of an increase or decrease (up to and
including full elimination), effective on or after January 1, 2000, of
the dividends received deduction ("DRD") with respect to dividend
payments on the Series B Convertible Preferred Shares presently
permitted by any Tax Law (a "change in the DRD Tax Law"), corporate
holders of Series B Convertible Preferred Shares ("Corporate Holders")
would realize a greater or lesser after-tax yield from dividend
payments on a Series B Convertible
2
Preferred Shares than would have been the case had such change in the
DRD Tax Law not occurred (a positive or negative "Tax Effect,"
respectively), then a dividend adjustment shall be calculated on the
Series B Convertible Preferred Shares (whether or not held by Corporate
Holders) so that a Corporate Holder's net after-tax yield would be the
same as if there has been no change in the DRD Tax Law. Calculation of
the dividend adjustment pursuant to this paragraph (c) of Section 2
shall be made (1) without regard to any other changes in Tax laws
except those affecting the deductibility of dividends received by
Corporate Holders (including changes in the characterization of Series
B Convertible Preferred Shares dividends which impact their
deductibility under any DRD related Tax Law); and (2) assuming that
Corporate Holders pay federal income tax at the highest marginal
corporate income tax rate effective at January 1, 2000.
(ii) For purposes of calculating the Preferred Dividend
Yield Rate as set forth in Section 8 herein, any adjustment in
dividends required pursuant to paragraph (c) (1) of this Section 2
shall be expressed as (1) the dividend payment required, after
considering the change in DRD Tax law, to equalize a Corporate Holder's
net after tax yield, expressed as a percentage (in decimals) of (2)
dividends which would have accrued to such Corporate Holder had the
change in DRD Tax law not occurred (such percentage to be referred to
as the "Preferred Dividend Tax Adjustment Factor"). Therefore, if in
equalization of any negative Tax Effect, the Corporation were required
to pay $15.25 in extra dividends for each $100.00 of dividends that
would have accrued and been payable without regard to any changes in
the DRD Tax Law, the Preferred Dividend Tax Adjustment Factor would be
1.1525 ($115.25/$100.00). Conversely, if in equalization of any
positive Tax Effect, the Corporation were entitled to pay $8.25 less in
dividends for each $100.00 of dividends that would have accrued and
been payable without regard to any changes in the DRD Tax Law, the
Preferred Dividend Tax adjustment Factor would be 0.9175
($91.75/$100.00).
(iii) Upon the occurrence of any change in the DRD Tax Law
resulting in a positive or negative Tax Effect, dividends accruing on
each Series B Convertible Preferred Share shall be calculated using the
Preferred Dividend Tax Adjustment Factor, effective as of the first day
of the quarterly dividend period in which such change in the DRD Tax
Laws become effective, or from the Issuance Date, if such Issuance Date
occurred for such Series B Convertible Preferred Share from the date of
adoption of this Certificate until the end of the quarterly dividend
period in which the change in the DRD Tax Law occurred. Dividends
calculated using the adjusted Preferred Dividend Yield Rate shall
continue to be payable on the Preferred Dividend Payment Date
immediately following the end of such quarterly dividend period. To the
extent not paid on any Series B Convertible Preferred Share outstanding
on the record date corresponding to the Preferred Dividend Payment Date
for such quarterly dividend period, any additional dividend shall
accumulate as Unpaid Dividend Yield of such share and shall remain a
part thereof until (but only until) such additional dividend is paid.
The Preferred Dividend Tax Adjustment Factor shall be calculated for
each change in the DRD Tax Law resulting in a positive or negative Tax
Effect.
3
SECTION 3. CASH REDEMPTION BY THE CORPORATION.
(a) REDEMPTION AT OPTION OF CORPORATION. At any time, the
Corporation may, at its option, with proper notice as set forth in
paragraph (b) of this Section 3, redeem all of the outstanding Series B
Convertible Preferred Shares, as of a Proposed Redemption Date
Specified in the notice to holders, for cash in an amount equal to the
Redemption Price per share.
(b) NOTICE OF REDEMPTION. In order to properly effect the
redemption of Series B Convertible Preferred Shares, the Corporation
will provide notice to holders of record of the Series B Convertible
Preferred Shares not less than forty-five (45) days prior to the
Proposed Redemption Date. Such notice may be provided by registered
mail, first class postage prepaid, to the holders of record of the
Series B Convertible Preferred Shares at their respective addresses as
the same shall appear on the books of the Corporation or any transfer
agent for the Series B Convertible Preferred Shares, or by facsimile or
telecopy, as set forth in paragraph (a) of Section 9 herein. Each such
notice shall state, as appropriate: (1) the Proposed Redemption Date;
(2) the total number of Series B Convertible Preferred Shares to be
redeemed; (3) the Redemption Price; (4) the place or places where
certificates for such shares are to be surrendered for redemption; and
(5) that dividends on the Series B Convertible Preferred Shares to be
redeemed will cease to accrue on the Proposed Redemption Date.
Each holder of Series B Convertible Preferred Shares shall
surrender the certificates evidencing such shares to the Corporation at
the place designated in such notice and shall thereupon be entitled to
receive the cash payable upon such redemption. If proper notice of
redemption shall have been duly provided to holders of the Series B
Convertible Preferred Shares in accordance with this paragraph (b), and
payment therefor has been made or duly provided for, then,
notwithstanding that the certificates evidencing any of such shares so
called for redemption shall not have been surrendered, as of the close
of business on the Redemption Date the shares represented thereby shall
be deemed no longer outstanding, dividends with respect to such
redeemed Series B Convertible Preferred Shares shall cease to accrue
and all rights of the holder with respect to such Series B Convertible
Preferred Shares shall forthwith cease and terminate, except for the
right of the holders to receive the cash payable upon such redemption,
without interest, upon surrender of the certificates therefor.
(c) REVOCATION OF NOTICE TO REDEEM. The Corporation's
election to redeem the Series B Convertible Preferred Shares pursuant
to paragraph (a) of this Section 3 shall be revocable, and any notice
to holders of Series B Convertible Preferred Shares provided in
accordance with paragraph (b) of this Section 3 shall be subject to
revocation or amendment by the Corporation. In order to properly effect
the revocation or amendment of such notice, the Corporation will
provide notice of its revocation or amendment, not less than one
business day prior to the Proposed Redemption Date, to holders of
record of the Series B Convertible Preferred Shares previously notified
of the proposed redemption. Such notice may be provided in any of the
manners permissible for providing notice of redemption under paragraph
(b) of this
4
Section 3. Such notice of revocation or amendment shall clearly state
that: (1) on the Proposed Redemption Date, the Corporation will not
redeem any of the Series B Convertible Preferred Shares; and (2)
dividends on the Series B Convertible Preferred Shares will continue to
accrue on and after the Proposed Redemption Date without interruption.
Notwithstanding the foregoing, in the event that a notice of conversion
has been delivered in accordance with paragraph (e) of Section 4 below
(which notice of conversion then remains unrevoked), the Corporation
shall not issue a notice of redemption under paragraph (b) of this
Section 3, or revoke a previously issued notice of redemption, within
thirty (30 days prior to the Proposed Conversion Date set forth in such
notice of conversion.
(d) CHANGE OF CONTROL. Notwithstanding anything to the
contrary in this Section 3, for a period of ninety (90) days after the
occurrence of a Change of Control, any holder of Series B Convertible
Preferred Shares shall be entitled, at the option of such holder, to
cause all of the Series B Convertible Preferred Shares held by such
holder to be redeemed by the Corporation for cash in the amount of the
Redemption Price per share as of a Change of Control Redemption Date.
To properly effect the redemption of any Series B Convertible Preferred
Shares pursuant to this paragraph (d) of Section 3, the holder of
Series B Convertible Preferred Shares shall provide notice to the
Corporation not less than ten (10) business days prior to the proposed
Change of Control Redemption Date. Such notice must be provided by
first class, registered mail, postage prepaid, to the Corporation at
its principal executive offices, or by facsimile or telecopy, at the
address or number set forth in paragraph (a) of Section 9 herein. Each
such notice shall state, as appropriate: (1) the proposed Change of
Control Redemption Date; and (2) a statement setting forth the facts
and circumstances under which the holder believes a Change of Control
has occurred. The Corporation shall give notice of the occurrence of a
Change of control to all holders of Series B Convertible Preferred
Shares promptly upon the occurrence of such Change of Control.
(e) CANCELLATION OF SHARES. All Series B Convertible
Preferred shares redeemed by the Corporation as provided in this
Section 3 (or otherwise acquired by the Corporation) shall be retired
and thereupon restored to the status of authorized but unissued but
unissued Series B Convertible Preferred Shares.
SECTION 4. CONVERSION BY HOLDERS INTO COMMON STOCK.
(a) RIGHT OF CONVERSION. At any time, on the terms and
subject to the conditions set forth in this Section 4, any holder of
Series B Convertible Preferred Shares shall be entitled, at the option
of such holder, to cause any or all of such shares to be converted into
shares of Common Stock of the Corporation at the conversion rate set
forth in paragraph (c) of this Section 4, as of the Proposed Conversion
Date specified in such holder's notice to the Corporation delivered
pursuant to paragraph (d) of this Section 4. The minimum number of
Series B Convertible Preferred Shares for which conversion may be
elected by such holder shall be 100,000 or such lesser number which
constitutes all of the outstanding Series B Convertible Preferred
Shares held by such holder.
5
(b) PRIORITY OF CORPORATION'S RIGHT OF REDEMPTION.
Notwithstanding paragraph (a) of this Section 4, no Series B
Convertible Preferred Shares shall be converted on or after the close
of business on any Redemption Date for which notice has been properly
delivered in accordance with Section 3 hereof. The Corporation's right
to redeem all shares of Series B Convertible Preferred Stock on or
prior to any Proposed Conversion Date shall supersede any holder's
right of conversion under this Section 4, whether or not such holder's
notice of conversion was properly delivered prior to the Corporation's
notice to redeem, so long as the Corporation's notice to redeem was
properly delivered in accordance with Section 3 hereof at least
forty-five (45) days prior to the Proposed Conversion Date and the
Proposed Conversion Date is on or after the Proposed Redemption Date.
(c) CONVERSION RATE. For purposes of conversion of Series
B Convertible Preferred Shares to shares of Common Stock pursuant to
this Section 4, each Series B Convertible Preferred Share shall be
converted into the number of Common Stock shares resulting from
dividing (i) the Original Value of such Series B Convertible Preferred
Share plus Unpaid Dividend Yield to and including the Conversion Date,
by (ii) the Conversion Price. The Conversion Price is subject to
adjustment from time to time pursuant to paragraph (m) of this Section
4.
(d) NOTICE OF CONVERSION. In order to properly effect the
conversion of Series B Convertible Preferred Shares, the holder of such
shares will provide notice to the Corporation not less than thirty (30)
days prior to the Proposed Conversion Date. Such notice must be
provided by first class, registered mail, postage prepaid, to the
Corporation at its principal executive offices, or by facsimile or
telecopy, at the address or number set forth in paragraph (a) of
Section 9 herein. Each such notice shall state, as appropriate; (1) the
Proposed Conversion Date; (2) the number of Series B Convertible
Preferred Shares (which must be a whole number of shares) to be
converted; and (3) the name or names in which such holder wishes the
certificate or certificates for Common Stock and for any Series B
Convertible Preferred Shares not to be so converted to be issued and
the address to which such holder wishes delivery to be made of the new
certificates to be issued upon conversion. A Notice of Conversion with
a Proposed Conversion Date on or after a Proposed Redemption Date or
provided less than thirty (30) days prior to the Proposed Conversion
Date shall be of no force and effect.
(e) REVOCATION OF NOTICE TO CONVERT. The right of any
holder of Series B Convertible Preferred Shares electing to convert the
Series B Convertible Preferred Shares pursuant to paragraph (a) of this
Section 4 shall be fully or partially revocable, and any notice to the
Corporation provided in accordance with paragraph (d) of this Section 4
shall be subject to revocation or amendment by the holder of the shares
to which such notice relates. In order to properly effect the
revocation or amendment of such notice, the holder shall provide notice
to the Corporation of its revocation or amendment not less than three
(3) business days prior to the Proposed Conversion Date. Such notice
shall be provided in the same manner specified as permissible for
providing notice of conversion under paragraph (d) of this Section 4,
and shall clearly state that the holder of such Series B Convertible
Preferred Shares will not
6
convert any of such shares, or if notice of partial revocation, the
amended number of Series B Convertible Preferred Shares held by such
holder that are to be converted.
(f) SURRENDER OF SERIES B CONVERTIBLE PREFERRED SHARES.
Any holder of Series B Convertible Preferred Shares desiring to convert
any such shares into shares of Common Stock shall surrender the
certificate or certificates representing the Series B Convertible
Preferred Shares being converted, duly assigned or endorsed for
transfer to the Corporation (or accompanied by duly executed stock
powers relating thereto), at the principal executive office of the
Corporation or the offices of the transfer agent for the Series B
Convertible Preferred Shares or such office or offices in the
continental United States of an agent for conversion as may from time
to time be designated by notice to the holders of the Series B
Convertible Preferred Shares by the Corporation or the transfer agent
for the Series B Convertible Preferred Shares, accompanied by a copy of
the written notice of conversion previously provided to the Corporation
in accordance with paragraph (d) of this Section 4.
(g) DELIVERY OF COMMON STOCK. Upon the effectiveness of a
conversion of Series B Convertible Preferred Shares on the Conversion
date for such shares, the Corporation, subject to the provisions of
paragraph (i) of this Section 4 regarding fractional shares and
paragraph (k) of this Section 4 regarding payment of taxes, shall issue
and send by first-class mail, postage prepaid, to the holder thereof,
or to such holder's designee, at the address designated by such holder
a certificate or certificates for the number of whole shares of Common
Stock to which such holder shall be entitled upon conversion. In case
there shall have been surrendered a certificate or certificates
representing Series B Convertible Preferred Shares only part of which
are to be converted, the Corporation, subject to the provisions of
paragraph (k) of this Section 4 regarding payment of taxes, shall issue
and deliver to such holder or such holder's designee a new certificate
or certificates for the number of Series B Convertible Preferred Shares
which shall not have been converted.
(h) EFFECTIVENESS OF CONVERSION. Any conversion of Series
B Convertible Preferred Shares into shares of Common Stock made at the
option of the holder thereof shall be effective immediately following
the close of business on the Conversion Date. At and after the
effective time on the Conversion Date, 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.
(i) FRACTIONAL SHARES. No fractional shares of Common
Stock shall be issued upon conversion of any series B Convertible
Preferred Shares but, in lieu of any fraction of a share of Common
Stock which would otherwise be issuable in respect of the aggregate
number of Series B Convertible Preferred Shares surrendered for
conversion at one time by the same holder, the Corporation shall pay an
amount in cash equal to the same fraction of the Conversion Price
(based on the Market Price at Conversion).
(j) RESERVATION OF SHARES. The Corporation shall at all
times reserve and keep available out of the authorized but unissued
shares of Common Stock
7
the maximum number of shares of Common Stock into which all Series B
Convertible Preferred Shares from time to time outstanding are
convertible, but shares of Common Stock held in the treasury of the
Corporation may in its discretion be delivered upon any conversion of
Series B Convertible Preferred Shares.
(k) TAXES. 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 Common Stock or any other
securities issued upon conversion of the Series B Convertible Preferred
Shares pursuant hereto. The Corporation shall not, however, be required
to pay any additional tax which may be payable in respect of any
transfer involved in the issuance and delivery of shares of Common
Stock or other securities in a name other than that in which the Series
B Convertible Preferred Shares with respect to which such shares are
issued were registered, or any payment to any person other than the
registered holder thereof, and shall not be required to make any such
issuance or delivery unless and until the person otherwise entitled to
such issuance or payment has paid to the Corporation the amount of any
such additional tax or has established, to the satisfaction of the
Corporation, that such additional tax has been paid or is not payable.
(l) CANCELLATION OF SHARES. All Series B Convertible
Preferred Shares converted into shares of Common Stock, other capital
stock or other securities of the Corporation as provided in this
Section 4 (or otherwise acquired by the Corporation) shall be retired
and thereupon restored to the status of authorized but unissued shares
of preferred stock, par value $0.05 per share, undesignated as to
series.
(m) ADJUSTMENTS TO THE CONVERSION PRICE. The conversion
Price shall be adjusted from time to time as follows:
(i) In case the Corporation shall (x) subdivide
its outstanding Common Stock, (y) combine its outstanding Common Stock
into a smaller number of shares or (z) reclassify or reorganize its
capital stock, the Conversion Price in effect immediately prior thereto
shall be adjusted so that the holder of any Series B Convertible
Preferred Shares thereafter surrendered for conversion shall be
entitled to receive the number of shares of capital stock of the
Corporation which he would have owned or have been entitled to receive
after the happening of any of the events described above had such
Series B Convertible Preferred Shares been converted immediately prior
to the happening of such event. An adjustment made pursuant to this
subsection (i) shall become effective immediately after the effective
date in the case of subdivision, combination, reclassification or
reorganization.
(ii) No adjustment in the Conversion Price shall
be required unless such adjustment would require an increase or
decrease of at least 1% in such price; provided, however, that any
adjustment which by reason of this subsection (ii) is not required to
be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Section 4 shall be
made to the nearest cent or to the nearest one-thousandth of a share,
as the case may be. Anything in this Section 4(m)
8
to the contrary notwithstanding, the Corporation shall be entitled to
make (but shall not be required to make) such reductions in the
Conversion Price, in addition to those required by this Section 4(m),
as it in its discretion shall determine to be advisable in order that
any of the actions referred to in subsection (i) above shall not be
taxable. Notwithstanding any provision to the contrary in this Section
4(m), in no event shall the Conversion Price be adjusted so that, after
giving effect to such adjustment, the Conversion Price would be less
than the par value, if any, of the common Stock.
(iii) Whenever the Conversion Price is adjusted,
the Corporation shall prepare a notice of such adjustment of the
Conversion Price setting forth the adjusted Conversion Price and the
date on which such adjustment becomes effective and shall mail such
notice of such adjustment of the Conversion Price to the holders of
Series B Convertible Preferred Shares at their address as appearing in
the stock transfer books of the Corporation.
(iv) In any case in which this Section 4(m)
provides that an adjustment shall become effective immediately after a
record date for an event, the Corporation may defer until the
occurrence of such event (a) issuing to the holder of any Series B
Convertible Preferred Shares converted after such record date and
before the occurrence of such event the additional shares of Common
Stock issuable upon such conversion by reason of the adjustment
required by such event over and above the Common Stock issuable upon
such conversion before giving effect to such adjustment and (b) paying
to such holder any amount in cash in lieu of any fraction pursuant to
Section 4(i).
SECTION 5. LIQUIDATION RIGHTS.
(a) In the event of any Liquidation, after payment or
provision for payment has been made for the debts and other liabilities
of the Corporation, the holders of Series B Convertible Preferred
Shares shall be entitled to receive, out of the net assets of the
Corporation, for each Series B Convertible Preferred Share its Original
Value plus an amount equal to the sum of Unpaid Dividend yield (whether
or not declared) accrued and unpaid plus accrued interest thereon for
all previous periods and the current period, whether or not
accumulated, and no more. After such amount is paid in full, no further
distributions or payments shall be made in respect of Series B
Convertible Preferred Shares, such series B Convertible Preferred
Shares shall no longer be deemed to be outstanding or be entitled to
any other powers, preferences, rights or privileges, including voting
rights, and such Series B Convertible Preferred Shares shall be
surrendered for cancellation to the Corporation.
(b) The full amount payable to the holders of Series B
Convertible Preferred Shares shall be paid before any distribution
shall be made to the holders of any class of common stock of the
Corporation or any other class of stock or series thereof ranking
junior to the series B Convertible Preferred Shares with respect to the
distribution of assets upon a Liquidation. No payment on account of any
Liquidation shall be made to the holders of any class or series of
stock ranking on a parity with the Series B
9
Convertible Preferred Shares in respect of the distribution of assets
upon Liquidation unless there shall likewise be paid at the same time
to the holders of the Series B Convertible Preferred Shares like
proportionate amounts determined ratably in proportion to the full
amounts to which the holders of all outstanding Series B Convertible
Preferred Shares and the holders of all outstanding shares of such
parity stock are respectively entitled with respect to such
distribution.
(c) If the assets distributed to the holders of Series B
Convertible Preferred Shares upon any Liquidation shall be insufficient
to permit the payment to such holders of the full amount to which they
are entitled in such circumstances, then such assets or the proceeds
thereof shall be distributed among such holders ratably in proportion
to the sums which would be payable to such holders if all sums were
paid in full.
(d) Once any payment required upon any Liquidation is made
to any holder of Series B Convertible Preferred Shares, there shall not
be any conversion rights in respect of such shares pursuant to Section
4 hereof unless the full amount of all such distributions and payments
made in respect of such shares being converted is remitted to the
Corporation prior to or concurrently with the conversion of such
shares.
(e) Neither the merger nor consolidation of the
Corporation into or with any other corporation, nor the merger or
consolidation of any other corporation into or with the Corporation,
nor a sale, transfer or lease of all or any part of the assets of the
Corporation, shall be deemed to be a Liquidation for purposes of this
Section 5.
(f) Written notice of any Liquidation, stating the payment
date or dates when and the place or places where the amounts
distributable in such circumstances shall be payable, shall be given by
first class mail, postage prepaid, not less than thirty (30) days prior
to any payment date stated therein, to the holders of record of the
series B Convertible Preferred Shares at their respective addresses as
the same shall appear on the books of the Corporation or any transfer
agent for the Series B Convertible Preferred Shares.
SECTION 6. VOTING RIGHTS.
(a) General. The holders of the Series B Convertible
Preferred Shares shall have no voting rights except as described below
or as required by law. In exercising any such vote, each outstanding
share of Series B Convertible Preferred Shares shall be entitled to one
vote.
(b) Class Voting Rights. So long as any Series B
Convertible Preferred Share is outstanding, the Corporation shall not,
without the affirmative vote or consent of the holders of at least 50
percent of all the outstanding Series B Convertible Preferred Shares
voting separately as a class, (i) amend, alter or repeal any provision
of the Restated Certificate of Incorporation, as amended, or the
By-Laws of the Corporation so as adversely to affect the relative
rights, preferences, qualifications, limitations or restrictions of the
Series B Convertible Preferred Shares, (ii) authorize, issue or
increase the authorized amount of any class or series of stock, or any
security convertible into
10
stock of such class or series, ranking senior to the Series B
Convertible Preferred Shares as to the payment of dividends or the
distribution of assets upon liquidation, dissolution or winding up of
the Corporation or (iii) effect any reclassification of the Series B
Convertible Preferred Shares.
SECTION 7. SINKING FUND. No sinking fund or other mechanism for
the segregation of funds shall be established for the purpose of
redemption or repurchase of the Series B Convertible Preferred Shares
or payment of dividends thereon.
SECTION 8. CERTAIN DEFINITIONS. For purposes of this Certificate
of Designations, the following terms shall have the meanings set forth
below.
"AVERAGE MARKET PRICE" means, with respect to a share of Common
Stock on any date of determination, the average of the daily Closing
Prices for the thirty (30) consecutive calendar days ending on the date
of determination without considering the Closing Price on non-Trading
Days; provided, however, that in averaging the daily Closing Prices,
all adjustments shall be made as are necessary to reflect any
subdivision, reclassification, recapitalization or combination of, or
dividend paid or distribution made on, shares of Common Stock during
such period.
"CHANGE OF CONTROL" means, with respect to the Corporation, (i)
the acquisition of ownership (by any Person or "group" within the
meaning of Sections 13(d) and 13(g) of the Securities Exchange Act of
1934, as amended) of greater than 50% of the voting power of the
capital stock of the Corporation (whether by sale or other transfer of
capital stock, merger, consolidation or other reorganization or means,
including a reorganization under bankruptcy or insolvency laws); or
(ii) the consummation of a sale, transfer or other disposition of
greater than 50% of the assets of the Corporation (determined on a
combined and consolidated fair market value basis) in one or a series
of related transactions to any Person or "group" that is not an
affiliate of the Corporation.
"CHANGE OF CONTROL REDEMPTION DATE" shall be the day designated by
any holder of Series B Convertible Preferred Shares for redemption by
the Corporation of all Series B Convertible Preferred Shares held by
such holder, as set forth in the notice of such election, properly
delivered in accordance with paragraph (e) of Section 3, following a
Change of Control.
"CLOSING PRICE" on any day shall mean the closing sales price
regular way on such day for one share of Common Stock or, in case no
such sale takes place on such day, the average of the reported closing
bid and asked prices regular way, in each case on the New York Stock
Exchange, as reported in The Wall Street Journal.
"COMMON STOCK" means common stock of the Corporation, par value
$0.05 per share.
"CONVERSION DATE" shall be the same day as the Proposed Conversion
Date, provided that (i) the holder of Series B Convertible Preferred
Shares requesting such conversion has not delivered a notice of
revocation in accordance with paragraph (e) of
11
Section 4; and (ii) the Corporation has not properly delivered a notice
of redemption pursuant to paragraph (b) of Section 3 naming any date on
or prior to the Proposed Conversion Date as the Proposed Redemption
Date and such notice to redeem has not been revoked prior to such date.
Notwithstanding the foregoing, in the event that the holders of more
than fifty percent (50%) of the outstanding Series B Convertible
Preferred Shares hold registration rights with respect to Common Stock
into which such Series B Convertible Preferred Shares can be converted,
and such holders have delivered to the Corporation, concurrently with
any notice of conversion under paragraph (d) of Section 4, a notice
requesting registration of such Common Stock upon conversion in an
underwritten securities offering, then the Conversion Date shall be
delayed so that it occurs (i) on or after the effective date of such
registration, and (ii) immediately prior to the purchase of such Common
Stock by the underwriter(s) undertaking such offering.
"CONVERSION PRICE" means, with respect to any Series B Convertible
Preferred Share, the product of (i) 1.2 and (ii) the Average Market
Price of the Common Stock at the time of the original purchase of such
Series B Convertible Preferred Share. The Conversion Price is subject
to adjustment from time to time pursuant to Section 4(m).
"DEALER QUOTATION" means a quotation, expressed as an annual
percentage rate, by a Reference Dealer as to the annual dividend rate
that would be required to be paid on a series of perpetual convertible
preferred stock issued for its stated value by the Corporation as of a
date of determination. In determining such annual dividend rate, the
Reference Dealer shall consider, without limitation, the annual
dividend rate that other issuers, with similar credit ratings on
outstanding debt to that of the Corporation and its principal
subsidiary, would be required to pay on a series of perpetual
convertible preferred stock issued for its stated value.
"DIVIDEND YIELD" means, with respect to each Series B Convertible
Preferred Share for each quarter, or such lesser period as may arise in
connection with the issuance, redemption or conversion of such share,
or with any Liquidation, the amount accruing on such share during the
quarter, or such lesser period, at an annual rate equal to the
Preferred Dividend Yield Rate, applied to such share's Original Value.
Dividend Yield for any period shorter than a full quarterly dividend
period shall be computed on the basis of a 360-day year of twelve
30-day months. Dividend Yield will begin accruing on each Series B
Convertible Preferred Share on the Issuance Date of such share and
shall accrue to, but not including, the Preferred Dividend Payment
Date, the Redemption Date, Change of Control Redemption Date or
Conversion Date for such share (or other date on which such Series B
Convertible Preferred Share is no longer outstanding).
"GAAP" means United States generally accepted accounting
principles, consistently applied.
"INTEREST RATE" means the prime rate of interest publicly
announced from time to time by Citibank, N.A. plus 400 basis points.
12
"ISSUANCE DATE" means, for each Series B Convertible Preferred
Share, the date on which such share was originally issued by the
Corporation.
"LIQUIDATION" means any dissolution, liquidation or winding up of
the affairs of the Corporation, whether voluntary or involuntary.
"MARKET PRICE AT CONVERSION" means the Average Market Price of one
share of Common Stock determined as of the Proposed Conversion Date.
"ORIGINAL ISSUANCE DATE" means the date on which a Series B
Convertible Preferred Share was originally issued by the Corporation.
"ORIGINAL VALUE" of each Series B Convertible Preferred Share
shall be equal to $100, as proportionally adjusted for all stock
splits, stock dividends, and any other subdivisions, combinations,
reclassifications, or recapitalization affecting the Series B
Convertible Preferred Shares.
"PERSON" means any individual, partnership, joint venture,
corporation, limited liability company, association, joint stock
company, trust, or unincorporated organization or association, or a
government or any department or agency or political subdivision
thereof.
"PREFERRED DIVIDEND PAYMENT DATE" has the meaning set forth in
paragraph (a) of Section 2.
"PREFERRED DIVIDEND TAX ADJUSTMENT FACTOR" has the meaning set
forth in paragraph (c) of Section 2.
"PREFERRED DIVIDEND YIELD RATE" means an annual dividend rate
equal to the sum of: (i) the average of the Dealer Quotations obtained
by the Corporation from three Reference Dealers, plus (ii) 100 basis
points. Such Preferred Dividend Yield Rate will be calculated by the
Corporation as of the Original Issuance Date and each anniversary
thereof and be provided by the Corporation to holders of Series B
Convertible Preferred Shares in a written notice.
Commencing on the first day of the thirty-seventh (37th) month
after the Original Issuance Date, and on the first day following each
twelve-month period thereafter, the Preferred Dividend Yield Rate shall
be automatically increased by 50 basic points from that which would
otherwise be applicable, provided that under no circumstances hereunder
shall the Preferred Dividend Yield Rate be increased by this automatic
mechanism by more than 200 basis points cumulatively.
"PROPOSED CONVERSION DATE" shall mean the date on which a holder
of Series B Convertible Preferred Shares proposes to convert any or all
of such holder's Series B Convertible Preferred Shares, as set forth in
its notice to the Corporation properly delivered in accordance with
paragraph (d) of Section 4.
13
"PROPOSED REDEMPTION DATE" shall mean the date on which the
Corporation proposes to redeem all of the Series B Convertible
Preferred Shares, as set forth in its notice to holders of Series B
Convertible Preferred Shares properly delivered in accordance with
paragraph (b) of Section 3.
"REDEMPTION DATE" shall be the same day as the Proposed Redemption
Date, provided that (i) the Corporation has not withdrawn its intention
to redeem the Series B Convertible Preferred Shares pursuant to
paragraph (c) of Section 3; and (ii) proper provision for the payment
of the Redemption Price to holders of Series B Convertible Preferred
Shares being redeemed has been made in accordance with paragraph (b) of
Section 3 by the close of business on the Proposed Redemption Date.
"REDEMPTION PRICE" for each Series B Convertible Preferred Share
shall be equal to the sum of (A) the Original Value, plus (B) Unpaid
Dividend Yield plus accrued interest thereon to and including the
Redemption Date or Change of Control Redemption Date on such share.
"REFERENCE DEALER" means a dealer, selected from Goldman, Sachs &
Co., Lehman Brothers, Merrill Lynch & Co. or Morgan Stanley Dean
Witter, or any other nationally recognized dealer in convertible
preferred stock and other similar securities, as designated by the
Corporation.
"TAX LAWS" means the Internal Revenue Code of 1986, as amended, or
any other revenue statute of the United States or in any United States
regulation, ruling, administrative interpretation or judicial or other
official interpretation (including a change in the characterization of
dividends on the Series B Convertible Preferred Shares) applicable to
the Corporation and/or Corporate Holders. For purposes of paragraph (c)
of Section 2, "Tax Laws" does not include the tax laws of any state,
municipality or foreign jurisdiction, or any tax law relating to the
computation of taxes or treatment of income, expenses or deductions, or
characterization of the dividends on the Series B Convertible Preferred
Shares under the Alternative Minimum Tax rules.
"TRADING DAY" shall mean a date on which the New York Stock
Exchange (or if the New York Stock Exchange is not the principal stock
exchange on which the Common Stock is listed or admitted to trading,
the principal national securities exchange on which the Common Stock is
listed or admitted to trading) is open for the transaction of business.
"UNPAID DIVIDEND YIELD" of any Series B Convertible Preferred
Share means, for any particular quarterly period (or lesser period, as
may arise in connection with the issuance, redemption or conversion of
such shares, or payments on such shares in connection with any
Liquidation), an amount equal to the excess, if any, of (A) the
aggregate Dividend Yield accrued on such share in such period, over (B)
the aggregate amount of cash dividends or distributions paid by the
Corporation in satisfaction of Dividend Yield on such share for such
period.
SECTION 9. MISCELLANEOUS.
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(a) Any notice or other communication required or permitted
hereunder shall be in writing and shall be deemed to have been given on
the earlier of (a) the receipt thereof, or (b) five (5) days after
mailing if sent by first class, registered mail, postage prepaid, if
properly addressed or directed to such party at the appropriate address
set forth below, or such address such party may designate by written
notice to the other parties:
(i) if to the Corporation to:
Countrywide Credit Industries, Inc.
4500 Park Granada, MS: CH-11
Calabasas, California 91302-1613
Attn: Managing Director and Chief Financial Officer
(818) 225-4028 - Fax
with a copy to:
Countrywide Credit Industries, Inc.
4500 Park Granada, MS: CH-11
Calabasas, California 91302-1613
Attn: Managing Director and General Counsel
(818) 225-4055 - Fax
with an additional copy to:
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
125 West 55th Street
New York, New York 10019
Attn: Stephen Rooney
(212) 424-8500 - Fax
(ii) if to a holder of the series B Convertible Preferred
Shares: to such holder at the address for such holder as listed in the
stock record books of the Corporation (which may include the records of
any transfer agent for the Series B Convertible Preferred Shares if
appropriate).
(b) In the event a holder of Series B Convertible Preferred Shares
shall not by written notice designate the name to whom payment upon
redemption of Series B Convertible Preferred Shares 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 Series B Convertible Preferred Shares as shown on
the records of the Corporation and send the certificate or certificates
representing such shares, or such payment, to the address of such
holder shown on the records of the Corporation.
15
(c) All payments in the form of dividends and distribution upon
any Liquidation or otherwise made upon the Series B Convertible
Preferred Shares and any other shares of stock ranking on parity with
the Series B Convertible Preferred Shares with respect to such dividend
or distribution shall be made pro rata, so that amounts paid per share
on the Series B Convertible Preferred Shares and such other shares of
stock shall in all cases bear to each other the same ratio that the
required dividends, distributions or payments, as the case may be,
payable per share on the Series B Convertible Preferred Shares and such
other shares of stock bear to each other.
(d) The Corporation may appoint, and from time to time discharge
and change, a transfer agent for the Series B convertible Preferred
Shares.
RESOLVED FURTHER, that the proper officers of the Corporation be, and
each of them hereby is, authorized to execute a Certificate of Designations with
respect to the Series B Convertible Preferred Stock pursuant to Section 151 of
the General Corporation Law of the State of Delaware and to take all appropriate
action to cause such Certificate to become effective, including, but not limited
to, the filing and recording of such Certificate with and/or by the Secretary of
the State of Delaware.
IN WITNESS WHEREOF, we have executed and subscribed this Certificate
and do affirm the foregoing as true under the penalties of perjury this 26th day
of January, 2000.
/s/Stanford L. Kurland
------------------------------------
Stanford L. Kurland
Senior Managing Director and
Chief Operating Officer
Attest:
/s/Sandor E. Samuels
- -------------------------------
Sandor E. Samuels
Managing Director, Legal, General Counsel
and Secretary
16
AMENDED AND RESTATED
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS
OF SERIES A PARTICIPATING PREFERRED STOCK
Of
COUNTRYWIDE CREDIT INDUSTRIES, INC.
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
We, Sandor E. Samuels, Senior Managing Director, Legal, General Counsel
and Secretary, and Susan E. Bow, Assistant Secretary, of Countrywide Credit
Industries, Inc., a corporation organized and existing under the General
Corporation Law of the State of Delaware, in accordance with the provisions of
Section 103 thereof, DO HEREBY CERTIFY:
That (i) pursuant to the authority conferred upon the Board of
Directors by the Certificate of Incorporation of the said Corporation, the said
Board of Directors on February 10, 1988, adopted a resolution creating a series
of 250,000 shares of Preferred Stock designated as Series A Participating
Preferred Stock have been issued.
WE DO FURTHER HEREBY CERTIFY:
That pursuant to the authority conferred upon by the Board of Directors
by the Certificate of Incorporation of the said Corporation and Section 151(g)
of the General Corporation Law of the State of Delaware, the said Board of
Directors on November 15, 2001 adopted the following resolution amending the
voting powers, preferences and relative participating, optional or other special
rights of the shares of the Series A Participating Preferred Stock, and the
qualification, limitations or restrictions thereof while keeping the designation
of such series unchanged:
RESOLVED, that pursuant to the authority vested in the Board of
Directors of this Corporation in accordance with the provisions of its Restated
Certificate of Incorporation, that the series of Preferred Stock of the
Corporation previously designated "Series A Participating Preferred Stock"
remain so designated and that the terms thereof be amended so that the amount
thereof and the voting powers, preferences and relative, participating, optional
and other special rights of the shares of such series, and the qualifications,
limitations or restrictions thereof are as follows:
Section 1. Designation and Amount. The shares of such series shall be
designated as "Series A Participating Preferred Stock", par value $0.05 per
share, and the number of shares constituting such series shall be 250,000. Such
number of shares may be increased or decreased by resolution of the Board of
Directors; provided, that no decrease shall reduce the number of shares of
Series A Participating Preferred Stock to a number less than that of the shares
then outstanding plus the number of shares issuable upon exercise of outstanding
rights, options or warrants or upon conversion of outstanding securities issued
by the Corporation.
Section 2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders of any
shares of any series of Preferred Stock ranking prior and superior to the shares
of Series A Participating Preferred Stock with respect to dividends, the holders
of shares of Series A Participating Preferred Stock, in preference to the
holders of shares of Common Stock, par value $0.05 per share (the "Common
Stock"), of the Corporation and any other junior stock, shall be entitled to
receive, when, as and if declared by the Board of Directors out of funds legally
available for the purpose, quarterly dividends payable in cash on the first day
of March, June, September and December in each year (or, in each case, if not a
date on which the Corporation is open for business, the next succeeding business
day) or such earlier date in any such month on which dividends on the Common
Stock are payable (each such date being referred to herein as a "Quarterly
Dividend Payment Date") commencing on the first Quarterly Dividend Payment Date
after the first issuance of a share or fraction of a share of Series A
Participating Preferred Stock, in an amount per share (rounded to the nearest
cent) equal to the greater of (a) $20.00 or (b) subject to the provision for
adjustment hereinafter set forth, 2,000 times the aggregate per share amount of
all cash dividends, and 2,000 times the aggregate per share amount (payable in
kind) of all non-cash dividends or other distributions other than a dividend
payable in shares of Common Stock or a subdivision of the outstanding shares of
Common Stock (by reclassification or otherwise), declared on the Common Stock,
since the immediately preceding Quarterly Dividend Payment Date, or, with
respect to the first Quarterly Dividend Payment Date, since the first issuance
of any share or fraction of a share of Series A Participating Preferred Stock.
In the event the Corporation shall at any time after November 15, 2001 (the
"Rights Declaration Date") (i) declare any dividend on Common Stock payable in
shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii)
combine the outstanding Common Stock into a smaller number of shares, then in
each such case the amount to which holders of shares of Series A Participating
Preferred Stock were entitled immediately prior to such event under clause (b)
of the preceding sentence shall be adjusted by multiplying such amount 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 that were outstanding immediately prior to such
event.
A-2
(B) The Corporation shall declare a dividend or distribution on the
Series A Participating Preferred Stock as provided in paragraph (A) above
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock); provided that, in the
event no dividend or distribution, shall have been declared on the Common Stock
during the period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $20.00 per share on
the Series A Participating Preferred Stock shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Participating Preferred stock from the Quarterly Dividend
Payment Date next preceding the date of issue of such shares of Series A
Participating Preferred Stock, unless the date of issue of such shares is prior
to the record date for the first Quarterly Dividend Payment Date, in which case
dividends on such shares shall begin to accrue from the date of issue of such
shares, or unless the date of issue is a Quarterly Dividend Payment Date or is a
date after the record date for the determination of holders of shares of Series
A Participating Preferred Stock entitled to receive a quarterly dividend and
before such Quarterly Dividend Payment Date in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends
paid on the shares of Series A Participating Preferred Stock in an amount less
than the total amounts of such dividends at the time accrued and payable on such
shares shall be allocated pro rata on a share-by share basis among all such
shares at the time outstanding. The Board of Directors may fix a record date for
the determination of holders of shares of Series A Participating Preferred Stock
entitled to receive payment of a dividend or distribution declared thereon,
which record date shall be no more than 30 days prior to the date fixed for the
payment thereof.
Section 3. Voting Rights. The holders of shares of Series A
Participating Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each
share of Series A Participating Preferred Stock shall entitle the holder thereof
to 2,000 votes on all matters submitted to a vote of the stockholders of the
Corporation. In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such case
the number of votes per share to which holders of shares of Series A
Participating Preferred Stock were entitled immediately prior to such event
shall be adjusted by multiplying such number by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after such
event and the
A-3
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) Except as otherwise provided herein or by law, the holders of
shares of Series A Participating Preferred Stock and the holders of shares of
Common Stock shall vote together as one class on all matters submitted to a vote
of stockholders of the Corporation.
(C) (i) If at any time dividends on any Series A Participating
Preferred Stock shall be in arrears in an amount equal to six (6) quarterly
dividends thereon, the occurrence of such contingency shall mark the beginning
of a period (herein called a "default period") which shall extend until such
time when all accrued and unpaid dividends for all previous quarterly dividend
periods and for the current quarterly dividend period on all shares of Series A
Participating Preferred Stock then outstanding shall have been declared and paid
or set apart for payment. During each default period, all holders of Preferred
Stock (including holders of the Series A Participating Preferred Stock) with
dividends in arrears in an amount equal to six (6) quarterly dividends thereon,
voting as a class, irrespective of series, shall have the right to elect two (2)
Directors.
(ii) During any default period, such voting right of the
holders of Series A Participating Preferred Stock may be exercised initially at
a special meeting called pursuant to subparagraph (iii) of this Section 3(C) or
at any annual meeting of stockholders, and thereafter at annual meetings of
stockholders, provided that neither such voting right nor the right of the
holders of any other series of Preferred Stock, if any, to increase, in certain
cases, the authorized number of Directors shall be exercised unless the holders
of ten percent (10%) in number of shares of Preferred Stock outstanding shall be
present in person or by proxy. The absence of a quorum of the holders of Common
Stock shall not affect the exercise by the holders of Preferred Stock of such
voting right. At any meeting at which the holders of Preferred Stock shall
exercise such voting right initially during an existing default period, they
shall have the right, voting as a class, to elect Directors to fill such
vacancies, if any, in the Board of Directors as may then exist up to two (2)
Directors or, if such right is exercised at an annual meeting, to elect two (2)
Directors. If the number which may be so elected at any special meeting does not
amount to the required number, the holders of the Preferred Stock shall have the
right to make such increase in the number of Directors as shall be necessary to
permit the election by them of the required number. After the holders of the
Preferred Stock shall have exercised their right to elect Directors in any
default period and during the continuance of such period, the number of
Directors shall not be increased or decreased except by vote of the holders of
Preferred Stock as herein provided or pursuant to the rights of any equity
securities ranking senior to or pari passu with the Series A Participating
Preferred Stock.
A-4
(iii) Unless the holders of Preferred Stock shall, during an
existing default period, have previously exercised their right to elect
Directors, the Board of Directors may order, or any stockholder or stockholders
owning in the aggregate not less than ten percent (10) of the total number of
shares of Preferred Stock outstanding, irrespective of series, may request, the
calling of special meeting of the holders of Preferred Stock, which meeting
shall thereupon be called by the President, a Vice-President or the Secretary of
the Corporation. Notice of such meeting and of any annual meeting at which
holders of Preferred Stock are entitled to vote pursuant to this paragraph
(C)(iii) shall be given to each holder of record of Preferred Stock by mailing a
copy of such notice to him at his last address as the same appears on the books
of the Corporation. Such meeting shall be called for a time not earlier than 20
days and not later than 60 days after such order or request or in default of the
calling of such meeting within 60 days after such order or request, such meeting
may be called on similar notice by any stockholder or stockholders owning in the
aggregate not less than ten percent (10%) of the total number of shares of
Preferred Stock outstanding. Notwithstanding the provisions of this paragraph
(C)(iii), no such special meeting shall be called during the period within 60
days immediately preceding the date fixed for the next annual meeting of the
stockholders.
(iv) In any default period, the holders of Common Stock, and
other classes of stock of the Corporation if applicable, shall continue to be
entitled to elect the whole number of Directors until the holders of Preferred
Stock shall have exercised their right to elect two (2) Directors voting as a
class, after the exercise of which right (x) the Directors so elected by the
holders of Preferred Stock shall continue in office until their successors shall
have been elected by such holders or until the expiration of the default period,
and (y) any vacancy in the Board of Directors may (except as provided in
paragraph (C)(ii) of this Section 3) be filled by vote of a majority of the
remaining Directors theretofore elected by the holders of the class of stock
which elected the Director whose office shall have become vacant. References in
this paragraph (C) to Directors elected by the holders of a particular class of
stock shall include Directors elected by such Directors to fill vacancies as
provided in clause (y) of the foregoing sentence.
(v) Immediately upon the expiration of a default period, (x)
the right of the holders of Preferred Stock as a class to elect Directors shall
cease, (y) the term of any Directors elected by the holders of Preferred Stock
as a class shall terminate, and (z) the number of Directors elected by the
holders of Preferred Stock as a class shall terminate, and (z) the number of
Directors shall be such number as may be provided for in the Certificate of
Incorporation or By-laws irrespective of any increase made pursuant to the
provisions of paragraph (C)(ii) of this Section 3 (such number being subject,
however to change thereafter in any manner provided by law or in the Certificate
of Incorporation or By-laws). Any vacancies in the Board of Directors effected
by the provisions of clauses (y) and (z) in the preceding sentence may be filled
by a majority of the remaining Directors.
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(D) Except as set forth herein, holders of Series A Participating
Preferred Stock shall have no special voting rights and their consent shall not
be required (except to the extent they are entitled to vote with holders of
Common Stock as set forth herein) for taking any corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Participating Preferred Stock as provided in Section 2
are in arrears, thereafter and until all accrued and unpaid dividends and
distribution, whether or not declared, on shares of Series A Participating
Preferred Stock outstanding shall have been paid in full, the Corporation shall
not
(i) declare or pay dividends on, make any other distributions
on, or redeem or purchase or otherwise acquire for consideration any
shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Participating
Preferred Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series A Participating Preferred Stock, except dividends paid ratably
on the Series A Participating Preferred Stock and all such parity stock
on which dividends are payable or in arrears in proportion to the total
amounts to which the holders of all such shares are then entitled
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking on parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series A Participating Preferred Stock, provided that the Corporation
may at any time redeem, purchase or otherwise acquire shares of any
such parity stock in exchange for any stock of the Corporation ranking
junior (either as to dividends or upon dissolution, liquidation or
winding up) to the Series A Participating Preferred Stock;
(iv) purchase or otherwise acquire for consideration any
shares of Series A Participating Preferred Stock, or any shares of
stock ranking on a parity with the Series A Participating Preferred
Stock, except in accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors) to all holders of
such shares upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates and other
relative rights and
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preferences of the respective series and classes, shall determine in
good faith will result in fair and equitable treatment among the
respective series or classes.
(B) The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A Participating
Preferred Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and cancelled promptly after the acquisition
thereof. All such shares shall upon their cancellation become authorized but
unissued shares of Preferred Stock and may be reissued as part of a new series
of Preferred Stock to be created by resolution or resolutions of the Board of
Directors, subject to the conditions and restrictions on issuance set forth
herein.
Section 6. Liquidation, Dissolution or Winding Up. (A) Upon any
liquidation (voluntary or otherwise), dissolution or winding up of the
Corporation, no distribution shall be made to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution, or
winding up) to the Series A Participating Preferred Stock unless, prior thereto,
the holder of shares of Series A Participating Preferred Stock shall have
received $70,000 per share, plus an amount equal to accrued and unpaid dividends
and distribution thereon, whether or not declared, to the date of such payment
(the "Series A Liquidation Preference"). Following the payment of the full
amount of the Series A Liquidation Preference, no additional distributions shall
be made to the holders of shares of Common Stock shall have received an amount
per share (the "Common Adjustment") equal to the quotient obtained by dividing
(i) the Series A Liquidation Preference by (ii) 2,000 (as appropriately adjusted
as set forth in subparagraph C below to reflect such events as stock splits,
stock dividends and recapitalizations with respect to the Common Stock)(such
number in clause (ii), the "Adjustment Number"). Following the payment of the
full amount of Series A Participating Preferred Stock and Common Stock,
respectively, holders of Series A Participating Preferred Stock and holders of
shares of Common Stock shall receive their ratable and proportionate share of
the remaining assets to be distributed in the ration of the Adjustment Number to
1 with respect to such Preferred Stock and Common Stock, on a per share basis,
respectively.
(B) In the event there are not sufficient assets available to permit
payment in full of the Series A Liquidation Preference and the liquidation
preferences of all other series of preferred stock, if any, which rank on a
parity with the Series A Participating Preferred Stock, then such remaining
assets shall be distributed ratably to the holders of such parity shares in
proportion to their respective liquidation preferences.
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In the event there are not sufficient assets available to permit payment in full
of the Common Adjustment, then such remaining assets shall be distributed
ratably to the holders of Common Stock.
(C) In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such case
the Adjustment Number in effect immediately prior to such event shall be
adjusted by multiplying such Adjustment Number 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 that
were outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc. In case the Corporation shall
enter into any consolidation, merger, combination or other transaction in which
the shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case the shares of
Series A Participating Preferred Stock shall at the same time be similarly
exchanged or changed in an amount per share (subject to the provision for
adjustment hereinafter set forth) equal to 2,000 times the aggregate amount of
stock, securities, cash and/or any other property (payable in kind), as the case
may be, into which or for which each share of Common Stock is changed or
exchanged. In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such case
the amount set forth in the preceding sentence with respect to the exchange or
change of shares of Series A Participating Preferred Stock shall be adjusted by
multiplying such amount 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 that are
outstanding immediately prior to such event.
Section 8. No Redemption. The shares of Series A Participating
Preferred Stock shall not be redeemable.
Section 9. Ranking. The Series A Participating Preferred Stock shall
rank junior to all other series of the Corporation's Preferred Stock as to the
payment of dividends and the distribution of assets, unless the terms of any
such series shall provide otherwise.
Section 10. Amendment. The Certificate of Incorporation of the
Corporation shall not be further amended in any manner which would materially
alter or change the powers, preferences or special rights of the Series A
Participating Preferred Stock so as to affect them adversely without the
affirmative vote of the holders of a majority or more of
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the outstanding shares of Series A Participating Preferred Stock, voting
separately as a class.
Section 11. Fractional Shares. Series A Participating Preferred Stock
may be issued in fractions of a share which shall entitle the holder, in
proportion to such holders fractional shares, to exercise voting rights, receive
dividends, participate in distribution and to have the benefit of all other
rights of holders of Series A Participating Preferred Stock.
IN WITNESS WHEREOF, we have executed and subscribed this Certificate
and do affirm the foregoing as true under the penalties of perjury this 5th day
of December, 2001.
/s/Sandor E. Samuels
-------------------------------------
Sandor E. Samuels
Senior Managing Director, Legal,
General Counsel and Secretary
Attest:
/s/Susan E. Bow
- ---------------------------
Susan E. Bow
Assistant Secretary
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CERTIFICATE OF OWNERSHIP AND MERGER
OF
CW MERGER CORP.
A DELAWARE CORPORATION
INTO
COUNTRYWIDE CREDIT INDUSTRIES, INC.
A DELAWARE CORPORATION
(Pursuant to Section 253 of the
Delaware General Corporation Law)
Countrywide Credit Industries, Inc., a Delaware corporation organized
and existing under the laws of the State of Delaware (the "Corporation"), does
hereby certify that:
FIRST: The Corporation was incorporated on December 2, 1986 pursuant to
the General Corporation Law of the State of Delaware.
SECOND: The Corporation is the owner of all of the issued and
outstanding common shares of CW Merger Corp., a Delaware corporation
incorporated on October 16, 2002, pursuant to the General Corporation Law of the
State of Delaware.
THIRD: The Corporation hereby merges CW Merger Corp. into the
Corporation
FOURTH: In a Telephonic Meeting of the Board of Directors of the
Corporation on October 23, 2002, the Board of Directors adopted the following
recitals and resolutions to merge CW Merger Corp. into the Corporation:
WHEREAS, this Board of Directors has previously deemed it advisable and
in the best interest of the Corporation to change its corporate name; and
WHEREAS, it is proposed that CW Merger Corp., a Delaware corporation
and wholly owned subsidiary of the Corporation be merged into the Corporation,
with the Corporation being the surviving entity for the purpose of effectuating
the name change;
NOW THEREFORE, BE IT RESOLVED, That CW Merger Corp., a Delaware
corporation ("CMC") merge and it hereby does merge into the Corporation pursuant
to the provisions of Section 253 of the Delaware General Corporation Law and
Sections 332 and 337 of the Internal Revenue Code of 1986, as amended (the
"IRC"), with the Corporation being the surviving entity (the "Merger");
RESOLVED FURTHER, That the Merger be and it hereby is, approved and
authorized;
RESOLVED FURTHER, That the Merger shall become effective upon the
filing of a Certificate of Ownership and Merger with the Secretary of State of
the State of Delaware in accordance with the Delaware General Corporation Law
(the "Effective Date");
RESOLVED FURTHER, That upon the Effective Date (i) the separate
existence and corporate organization of CMC shall cease and the Corporation
shall thereupon become the surviving corporation and shall continue its
existence under Delaware Law, (ii) the Corporation shall assume all of the
obligations and liabilities of CMC, and (iii) the issued and outstanding shares
of stock of CMC shall not be converted in any manner, but each said share of
stock which is issued as of the Effective Date shall be surrendered and
cancelled;
RESOLVED FURTHER, That upon the Effective Date, the name of the
Corporation shall be changed to "Countrywide Financial Corporation" and ARTICLE
FIRST of the Restated Certificate of Incorporation of the Corporation shall be
amended to read as follows:
"FIRST': The name of the corporation is Countrywide Financial
Corporation".
RESOLVED FURTHER, That, except for the foregoing amendment to ARTICLE
FIRST, the Restated Certificate of Incorporation shall remain unchanged by the
Merger and in full force and effect until further amended in accordance with the
Delaware General Corporation Law;
RESOLVED FURTHER, That the distribution of the assets of CMC pursuant
to the Merger shall constitute a plan of complete liquidation of CMC and shall
in all particulars conform to the requirements of Sections 332 and 337 of the
IRC;
RESOLVED FURTHER, That the officers of the Corporation be, and they
hereby are, authorized, empowered and directed for and on behalf of the
Corporation and in its name (i) to execute and file or cause to be filed with
the Delaware Secretary of State a Certificate of Ownership and Merger evidencing
the Merger pursuant to which the Corporation will change its name as described
above, (ii) to cause to be filed certificates evidencing the Merger and change
of name with such other states where the Corporation is qualified to do business
as may require a filing evidencing the Merger or change of name, and (iii) to
execute and file or cause to be filed any such other documents as may require a
filing evidencing the Merger or change of name,
RESOLVED FURTHER, That all actions taken and documents executed by the
officers or other authorized representative of the Corporation, or any person or
persons designated and authorized to act by any of them, prior to the adoption
of these resolutions in connection with the transaction described above, are
hereby ratified, confirmed, approved and adopted in all respects; and
RESOLVED FURTHER, That the officers of the Corporation, and any of
them, be, and each of them hereby is, authorized, empowered and directed to do
or cause to be done all such
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acts or things and to sign and deliver, or cause to be signed and delivered all
such further agreements, documents, instruments and certificates, required or
permitted to be given or made in connection with the Merger and the change of
name, in the name and on behalf of the Corporation or otherwise (including
without limitation any written consents as the sole stockholder of CMC), as such
officer or officers of the Corporation executing the same shall deem necessary,
advisable or appropriate to carry out the purposes and intent of the foregoing
resolutions with such changes, additions and modifications thereto and any
supplements or amendments thereof, as such officers executing and/or delivering
the same have approved, such approval to be conclusively evidenced by such
officer's execution and delivery thereof and to perform the obligations of the
Corporation.
IN WITNESS WHEREOF, the Corporation has caused this certificate
to be executed by its duly authorized officer this 7th day of November, 2002.
COUNTRYWIDE CREDIT INDUSTRIES, INC.
a Delaware corporation
By: /s/Sandor E. Samuels
------------------------------------
Sandor E. Samuels, Senior Managing Director,
Legal, General Counsel & Secretary
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CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
COUNTRYWIDE FINANCIAL CORPORATION
COUNTRYWIDE FINANCIAL CORPORATION, a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation" or the "Company"), hereby certifies as follows:
1. That at a meeting of the Board of Directors of the Corporation
resolutions were duly adopted setting forth a proposed amendment of the Restated
Certificate of Incorporation, declaring said amendment to be advisable and
calling for the proposal to be presented to the stockholders of the Corporation
at a Special meeting of the Stockholders. The resolution setting forth the
proposed amendment is as follows:
RESOLVED, That the Restated Certificate of Incorporation of the Company
be amended to increase the authorized Common Stock and for this purpose Article
Third thereof shall be struck out in its entirety and shall be replaced with the
following new Article Third:
"THIRD: The aggregate number of shares which the Corporation
shall have authority to issue is five hundred million
(5,000,000) shares of Common Stock, of the par value
five cents ($0.05) per share, and one million five
hundred thousand (1,500,000) shares of Preferred
Stock, of the par value of five cents ($0.05) per
share. The Preferred Stock may be issued in one or
more series at such time or times and for such
consideration or considerations as the Board of
Directors may determine. With respect to the
Preferred Stock, the Board of Directors of this
Corporation is authorized to determine or alter the
voting rights, dividend privileges, liquidation
preferences, and all other rights, privileges and
restrictions, including without limitation,
conversion rights into Common Stock granted to or
imposed upon any wholly unissued series of Preferred
Stock and, within the limitations or restrictions
stated in any resolution of the Board of Directors
originally fixing the number of shares of Preferred
Stock constituting any series, to increase or
decrease (but not below the number of shares of such
series the outstanding) the number of shares of any
such series subsequent to the issue of shares of that
series, to determine the designation of any series
and to fix the number of shares of any series."
2. That thereafter, a Special Meeting of the Stockholders of the
Corporation was duly called and held, upon notice in accordance with Section 222
of the General Corporation Law of the State of Delaware of January 9, 2004, at
which special meeting the necessary number of shares as required by statute were
voted in favor of the amendment of the Restated Certificate of Incorporation
herein certified.
3. That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said Corporation has caused this
certificate to be executed by an authorized officer on this 9th day of January,
2004.
By: /s/Angelo R. Mozilo
----------------------------------
Angelo R. Mozilo
Chairman of the Board and CEO
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