EXHIBIT 3.3
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
INTEREP NATIONAL RADIO SALES, INC.
_________________________________________________
Under Section 805 of the Business Corporation Law
_________________________________________________
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
INTEREP NATIONAL RADIO SALES, INC.
_________________________________________________
Pursuant to Section 805 of the
Business Corporation Law of the State of New York
_________________________________________________
The undersigned President of INTEREP NATIONAL RADIO SALES, INC., for the
purpose of amending its Certificate of Incorporation, CERTIFIES that:
FIRST: The name of the corporation is INTEREP NATIONAL RADIO SALES, INC.,
(the "Corporation"). The name under which the Corporation was formed was
McGavron-Quinn Corporation.
SECOND: The Certificate of Incorporation of the Corporation was filed by
the Department of State on March 31, 1958, a Restated Certificate of
Incorporation was filed on May 28, 1985, a Certificate of Change thereof was
filed on June 13, 1991 and a Certificate of Amendment thereof was filed on June
26, 1993.
THIRD: The Certificate of Incorporation of the Corporation is to be
amended by the addition of provision stating the number, designation, relative
rights, preferences and limitations of the shares of the Series A Cumulative
Redeemable Preferred Stock of the Corporation and Series B Cumulative Redeemable
Preferred Stock of the Corporation, as fixed by the Board of Directors of the
Corporation pursuant to authority to do so set forth in ARTICLE FOURTH of the
Certificate of Incorporation of the Corporation, which provision shall read in
its entirety as follows:
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I. SERIES A CUMULATIVE REDEEMABLE PREFERRED STOCK
A series of Series A Cumulative Redeemable Preferred Stock, consisting of
25,000 shares of Preferred Stock which the Corporation has authority to issue,
is created, and the designated and relative rights, preferences and limitations
of the shares of such series are fixed as follows:
Series A Cumulative Redeemable Preferred Stock
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1. Designation. The designation of such series is "Series A
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Cumulative Redeemable Preferred Stock" (hereinafter in this Certificate of
Amendment called the "Series A Preferred Stock") and the number of shares
constituting such series shall be 25,000, which number may be decreased (but not
increased) by the Board of Directors without a vote of stockholders; provided,
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however, that such number may not be decreased below the number of then
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currently outstanding shares of Series A Preferred Stock, plus the number of
shares of Series A Preferred Stock, required to be issued in connection with the
payment of dividends thereon. All capitalized terms used in this part I and not
otherwise defined shall have the meaning given to such terms in Section 12
hereof.
2. Dividends. (a). The holders of shares of Series A Preferred
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Stock, on a parity with the holders of shares of Series B Preferred Stock (as
hereinafter defined) and otherwise in preference to the holders of the Junior
Securities, shall be entitled to receive, when, as and if declared by the Board
of Directors out of funds legally available for the purpose, cumulative
dividends as provided in this Section 2. Dividends on each share of Series A
Preferred Stock shall accrue at the rate of 10% per annum of the sum of (i) the
Liquidation Value and (ii) all accumulated and unpaid dividends thereon. Such
dividend rate shall be increased to accrue at the rate of 15% per annum of the
sum of (i) the Liquidation Value and (ii) all accumulated and unpaid dividends
thereon from and after the occurrence of a Trigger Event; provided, however,
that the dividend rate shall be restored to 10% per annum for any period
thereafter during which no Trigger Events exist, subject to being increased
again to 15% per annum upon the occurrence of a Trigger Event. An authorized
officer of the Corporation shall deliver to the holders of Series A Preferred
Stock a certificate certifying the date as of which the Corporation believes
that any Trigger Event has been cured or has otherwise ceased to exist,
specifying in reasonable detail the basis for such belief. Such dividends shall
commence to accrue on each share of Series A Preferred Stock from the date of
issuance thereof whether or not declared by the Board of Directors and shall
continue to accrue thereon until the date the Liquidation value of such share
(plus all accrued and unpaid dividends thereon) is paid. For purposes of
determining the amount of dividends accrued on the Series A Preferred Stock
pursuant to this Section 2 in connection with the sale, redemption or repurchase
of any Series A Preferred Stock which may occur prior to December 31 of any
year, the applicable dividend rate(s) for such period shall be multiplied by a
fraction, the numerator of which is the actual number of days elapsed in the
then current year and the denominator of which is 365. Such dividends shall be
payable annually to the record holders of the Series A Preferred Stock on
December 31 of each year commencing December 31, 1993 which dividends shall be
payable in cash, by wire transfer of immediately available federal funds or, to
the extent the Board of
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Directors of the Corporation in its sole discretion so desires, in additional
shares of Series A Preferred Stock valued at $1,000 per share which shares shall
be deemed fully paid and non-assessable.
(b) If in any fiscal year, the Corporation assigns to the trustees of
the ESOP the Corporation's obligations to repurchase shares of the Corporation's
stock from the ESOP in connection with distributions to or stock repurchase from
plan participants, and the trustees of the ESOP assume such obligation, and the
amount of the Corporation's direct or indirect contributions to the ESOP in
connection with such assignment and assumption exceeds the Threshold Amount
(the "Excess Contributions"), each holder of Series A Preferred Stock shall be
entitled to receive, in addition to the dividends provided for in subsection (a)
above, a dividend equal to (i) the Excess Contributions divided by the number of
shares of Common Stock then held by the ESOP (before giving effect to any
repurchases effected or to be effected with such Excess Contributions),
multiplied by (ii) the number of shares of Common Stock then held by such holder
of the Series A Preferred Stock (the "Additional Dividend"). For purpose of
this subsection (b), the "Threshold Amount" shall mean for fiscal years 1993
and 1994, any contributions to the ESOP in excess of $800,000 which amount shall
be increased by Forty Thousand Dollars ($40,000) per annum effective as of
January 1, 1995 and on each January 1 thereafter. Such Additional Dividends
shall be payable no later than March 31 of each year with respect to any Excess
Contributions paid during the preceding calender year and shall be paid in cash,
by wire transfer of immediately available federal funds or, if such cash payment
is not then permitted by the Corporation's institutional lender(s), in
additional shares of Series A Preferred Stock valued at $1,000 per share which
shares shall be deemed fully paid and non-assessable. Upon payment of any
Additional Dividend, the Corporation shall provide to Providence Media a written
explanation of the calculation of such Additional Dividend.
(c) Except as otherwise provided herein, if at any time the
Corporation pays less than the total amount of dividends then accrued with
respect to the Series A Preferred Stock, such payment shall be distributed
ratably among the holders thereof based upon the aggregate accrued but unpaid
dividends on the Series A Preferred Stock held by each holder.
(d) Except as otherwise provided in this Certificate of Amendment, the
Purchase Agreement or the Shareholders' Agreement, so long as any shares of
Series A Preferred Stock are outstanding, the Corporation will not declare, pay
or set apart for payment any dividends or make any other distribution on or
redeem any Junior Securities and will not permit any subsidiary or other
affiliate to redeem, purchase or otherwise acquire for value, or set apart for
any sinking or other analogous fund for the redemption or purchase of, any
Junior Securities.
3. Liquidation Preference. (a) In the event of any liquidation,
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dissolution or winding up of the affairs of the Corporation, either voluntarily
or involuntarily, each holder of Series A Preferred Stock shall be entitled,
after provision for the payment of the Corporation's debts and other
liabilities, to be paid in cash by wire transfer of immediately available
federal funds the aggregate Liquidation value of all shares of Series A
Preferred Stock held by such holder plus an amount equal to the sum of all
accrued and unpaid dividends thereon and all
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unpaid Additional Dividends, whether or not declared to the date of such
payment, before any distribution is made on any Junior Securities. If, upon any
such liquidation, dissolution or other winding up of the affairs of the
Corporation, the net assets of the Corporation distributable among the holders
of all outstanding shares of the Series A Preferred Stock shall be insufficient
to permit the payment in full to such holders of the preferential amounts to
which they are entitled, then the entire net assets of the Corporation remaining
after the provision for the payment of the Corporation's debts and other
liabilities shall be distributed among the holders of the Series A Preferred
Stock ratably in proportion to the full amounts to which they would otherwise be
respectively entitled.
(b) Holders of Series A Preferred Stock shall not be entitled to any
additional distribution in the event of any liquidation, dissolution or winding
up of the affairs of the Corporation in excess of the preferential amount
referred to in Section 3(a) above.
4. Voting Rights. (a) The holders of Series A Preferred Stock
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shall not have or be entitled to any voting rights or powers, either general or
special, except as required by law and subparagraph (b) of this Section 4.
(b) The holders of shares of Series A Preferred Stock shall have the
following voting rights:
(i) The affirmative vote of the holders of a majority of the
outstanding shares of Series A Preferred Stock, voting separately as a
single series, in person or by proxy, at a special or annual meeting of
stockholders called for the purpose, shall be necessary to (i) authorize,
or increase the authorized number of shares of, or issue, any class or
series of the Corporation's capital stock ranking (either as to dividends
or upon liquidation, dissolution or winding up) prior to, or on a parity
with, the Series A Preferred Stock, including shares of Series A Preferred
Stock authorized pursuant to this Certificate of Amendment and issued after
the date of original issuance of the Series A Preferred Stock, provided
that no such vote shall be required to issue additional shares of Series A
Preferred Stock as a dividend to the holders of Series A Preferred Stock in
accordance with Section 2 hereof or to issue shares of Series B Preferred
Stock having a liquidation value of up to $2,000,000 in the aggregate
including dividends on such Series B Preferred Stock payable solely in
additional shares of Series B Preferred Stock in accordance with this
Certificate of Amendment, or (ii) amend, repeal or change, directly or
indirectly, any of the provisions of the Certificate of Incorporation of
the Corporation, as amended, in any manner which would alter or change the
powers, preferences or special rights of the shares of Series A Preferred
Stock so as to affect them adversely.
(ii) The rights of holders of shares of Series A Preferred Stock to
vote or take any other actions as provided in this Section 4 may be
exercised at any annual meeting of stockholders or at a special meeting of
stockholders held for such purposes. At each meeting of stockholders at
which the holders of shares of Series A Preferred Stock shall have the
right, voting separately as a single series, to take any action as provided
in this
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Section 4, the presence in person or by proxy of the holders of record of a
majority of the total number of shares of Series A Preferred Stock then
outstanding and entitled to vote on the matter shall be necessary and
sufficient to constitute a quorum. At any such meeting or at any
adjournment thereof, in the absence of a quorum of the holders of shares of
Series A Preferred Stock, a majority of the holders of such shares present
in person or by proxy shall have the power to adjourn the meeting as to the
actions to be taken by the holders of shares of Series A Preferred Stock
from time to time and place to place without notice other than announcement
at the meeting until a quorum shall be present.
(iii) For the taking of any action as provided in this Section 4 by
the holders of shares of Series A Preferred Stock, each such holder shall
have one vote for each share of such stock standing in his name on the
transfer books of the Corporation as of any record date fixed for such
purpose or, if no such date be fixed, at the close of business on the
business day next preceding the day on which notice is given, or if notice
is waived, at the close of business on the business day next preceding the
day on which the meeting is held. "Business Day" shall mean any date other
than a Saturday, Sunday or a day on which banking institutions in the State
of Rhode Island are authorized or obligated by law or executive order to
close.
5. Redemption. (a) The Series A Preferred Stock then outstanding
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shall be redeemed in whole on or after October 31, 2003 (the "Mandatory
Redemption"). The Corporation shall give each holder of Series A Preferred
Stock not less than 10 nor more than 20 days notice of such redemption (the date
set forth in such notice for the redemption of said shares of Series A Preferred
Stock shall hereinafter be referred to as the "Mandatory Redemption Date"). The
Corporation shall redeem on the Mandatory Redemption Date all shares of Series A
Preferred Stock held by the holders of Series A Preferred Stock in cash by wire
transfer of immediately available funds at the Liquidation Value plus an amount
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equal to the sum of all accrued and unpaid dividends including unpaid Additional
Dividends (whether or not declared by the Board of Directors) on the Series A
Preferred Stock to be redeemed as of the Mandatory Redemption Date.
(b) The Series A Preferred Stock may be redeemed at the option of the
holder(s) of a majority of the then outstanding Series A Preferred Stock on the
earlier to occur of (i) the Sale of the Corporation or (ii) a Trigger Event
(each an "Optional Redemption"). In either case, the holders of a majority of
the outstanding Series A Preferred Stock shall notify the Corporation in writing
of its or their intent to exercise the rights afforded by this Section 5(b) and
specify a date not less than 10 nor more than 60 days from the date of such
notice on which the Series A Preferred Stock shall be redeemed (the "Optional
Redemption Date"). Upon receipt of such notice, the Corporation shall promptly
notify the remaining holders of the Series A Preferred Stock of the Optional
Redemption Date and offer such shareholders the opportunity to redeem their
shares of Series A Preferred Stock on such Optional Redemption Date. The
recipients of such notice may participate in the Optional Redemption by giving
prompt written notice to the Corporation to such effect. The Corporation shall
redeem on the Optional
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Redemption Date all shares of Series A Preferred Stock held by the holders of
the Series A Preferred Stock electing to participate in such Optional Redemption
in cash by wire transfer of immediately available funds at the Liquidation Value
plus an amount equal to the sum of all accrued and unpaid dividends including
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unpaid Additional Dividends (whether or not declared by the Board of Directors)
on the Series A Preferred Stock to be redeemed on such Optional Redemption Date.
(c) On and after any Mandatory Redemption Date or any Optional
Redemption Date, dividends will cease to accumulate on shares of Series A
Preferred Stock to be redeemed and the holders of the Series A Preferred Stock
shall cease to have any rights as stockholders of the Corporation except the
right to receive, without interest, the Liquidation Value thereof and an amount
equal to the sum of all accrued and unpaid dividends, including unpaid
Additional Dividends, upon the surrender of the certificate(s) representing the
Series A Preferred Stock to the Corporation; provided, however, that in the
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event any holder of Series A Preferred Stock tenders its shares to the
Corporation on any Mandatory Redemption Date or any Optional Redemption Date,
the Corporation shall be obligated to pay interest on the Liquidation Value at
the maximum rate allowable under applicable law in the event the Corporation
defaults in its obligation to pay the Liquidation Value on any such Mandatory
Redemption Date or Optional Redemption Date. If less than all of the
outstanding shares of Series A Preferred Stock are to be redeemed, such shares
shall be redeemed pro rata in accordance with the number of Series A Preferred
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Stock owned by each holder of Series A Preferred Stock.
(d) The redemption by the Corporation of all or any part of the Series
A Preferred Stock pursuant this Section 5 is subject to the provisions of
applicable corporate law.
6. Redemption Notice. The notice described in Section 5 hereof
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shall be sent, if by or on behalf of the Corporation to the holders of the
Series A Preferred Stock at their respective addresses as shall then appear on
the records of the Corporation, or if by any holder of Series A Preferred Stock
to the Corporation at 100 Park Avenue, New York, New York 10017, Attention:
Chief Financial Officer, by first class mail, postage prepaid, a. notifying
such recipient of the redemption, the date of such redemption, the number of
shares of Series A Preferred Stock to be redeemed, and the redemption price
therefor and b. in the case of any notice by or on behalf of the Corporation,
stating the place or places at which the shares called for redemption shall,
upon presentation and surrender of such certificates representing such shares,
by redeemed.
7. Status of Reacquired Shares. Shares of Series A Preferred Stock
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which have been issued and reacquired in any manner shall (upon compliance with
any applicable provisions of the laws of the State of New York) have the status
of authorized and unissued shares of Series A Preferred Stock issuable in series
undesignated as to series and may be redesignated and reissued.
8. Exclusion of Other Rights. Except as may otherwise be required
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by law, the shares of Series A Preferred Stock shall not have any preferences or
relative, participating,
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optional or other special rights, other than those specifically set forth in
this Certificate of Amendment. The shares of Series A Preferred Stock shall have
no preemptive or subscription rights.
9. Rank. The Series A Preferred Stock shall rank senior as to
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dividends and upon liquidation, dissolution or winding up to all Junior
Securities, whenever issued, provided, however, that the Series B Preferred
Stock shall be on a parity with the Series A Preferred Stock as to dividends.
10. Identical Rights. Each share of the Series A Preferred Stock
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shall have the same relative rights and preferences as, and shall be identical
in all respects with, all other shares of the Series A Preferred Stock.
11. Certificates. So long as any shares of the Series A Preferred
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Stock are outstanding, there shall be set forth on the face or back of each
stock certificate issued by the Corporation a statement that the Corporation
shall furnish without charge to each shareholder who so requests, a full
statement of the designation and relative rights, preferences and limitations of
each class of stock or series thereof that the Corporation is authorized to
issue and of the authority of the Board of Directors to designate and fix the
relative rights, preferences and limitations of each series.
12. Definitions.
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"ESOP" means the Interep National Radio Sales Employee Stock
Ownership Plan and Trust.
"401(k) Plan" means The Interep National Radio Store Wealth
Attainment Plan and Trust.
"Junior Securities" means any of the Corporation's equity
securities other than the Series A Preferred Stock.
"Liquidation Value" of any share of Series A Preferred Stock or
Series B Preferred Stock shall be $1,000.
"Person" means an individual, partnership, corporation,
association, trust, joint venture, unincorporated organization and any
government, governmental department or agency or political subdivision thereof.
"Providence Media" means Providence Media Partners L.P., a
Delaware limited partnership.
"Purchase Agreement" means that certain Securities Purchase
Agreement of even date herewith between Providence Media and the Corporation.
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"Sale of the Corporation" means the sale of the Corporation to a
Person or group of Persons in a single transaction or a series of transactions
pursuant to which such Person or Persons acquire (i) capital stock of the
Corporation possessing the voting power to elect a majority of the Corporation's
board of directors (whether by merger, consolidation or sale or transfer of the
Corporation's capital stock, provided, however, that an IPO that results in an
acquisition of voting power shall not be a Sale of the Corporation) or (ii) all
or substantially all of the Corporation's assets determined on a consolidation
basis.
"Shareholders' Agreement" means that certain Shareholders'
Agreement of even date herewith, among the Corporation, Providence Media and
certain other stockholders of the Corporation.
"Trigger Event" means the occurrence of any of the following:
(i) the Corporation shall fail in any material respect to perform or
observe any of the covenants set forth in the Purchase Agreement and such
failure shall continue unremedied for more than 30 days from the occurrence
thereof; or
(ii) the Corporation shall be obligated (which shall include the
obligation to provide funding for purchases by the ESOP and/or THE 401(k)
Plan to repurchase or redeem shares of its common stock constituting more
than 15% of the issued and outstanding common stock of the Corporation,
whether in a single transaction or a series of transactions occurring
during the course of any twelve month period; or
(iii) the Corporation fails to file a registration statement upon the
exercise of Providence Media's rights under the Shareholders' Agreement or
that certain Registration Rights Agreement of even date herewith between
the Corporation and Providence Media; or
(iv) the Corporation fails to purchase the PMP Securities (as
defined in the Shareholders' Agreement) by, and in accordance with Section
3 of such Shareholders' Agreement within 120 days of delivery of a Put
Notice (as defined in the Shareholders' Agreement) regardless of whether
the failure to complete such purchase results from the Corporation's lack
of sufficient capital to tender the Put Purchase Price (as defined in the
Shareholders' Agreement) for such securities; or
(v) violation of the Corporation's Articles of Incorporation or by-
laws with respect to the Series A Preferred Stock; or
(vi) the Corporation violates the terms of that certain side letter
of even date herewith between the Corporation and Providence Media and such
violation shall continue unremedied for more than 30 days after notice of
such violation is provided by Providence Media to the Corporation; or
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(vii) the imposition by the Federal Trade Commission of any material
fine or penalty or other form of relief or enforcement action which has a
material adverse effect on the Company.
II. SERIES B CUMULATIVE REDEEMABLE PREFERRED STOCK
A series of Series B Cumulative Redeemable Preferred Stock, consisting
of 5,000 shares of Preferred Stock which the Corporation has authority to issue,
is created, and the designation and relative rights, preferences and limitations
of the shares of such series are fixed as follows:
Series B Cumulative Redeemable Preferred Stock
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1. Designation. The designation of such series is "Series B
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Cumulative Redeemable Preferred Stock" (hereinafter in this Certificate of
Amendment called the "Series B Preferred Stock") and the number of shares
constituting such series shall be 5,000, which number may be decreased (but not
increased) by the Board of Directors without a vote of stockholders; provided,
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however, that such number may not be decreased below the number of then
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currently outstanding shares of Series B Preferred Stock, plus the number of
shares of Series B Preferred Stock required to be issued in connection with the
payment of dividends thereon. All capitalized terms used in this part II and
not otherwise defined shall have the meaning given to such terms in Section 12
of part I hereof.
2. Dividends. (a) The holders of shares of Series B Preferred
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Stock, on a parity with the holders of the Series A Preferred Stock, shall be
entitled to receive, when, as and if declared by the Board of Directors out of
funds legally available for the purpose, cumulative dividends as provided in
this Section 2. Dividends on each share of Series B Preferred Stock shall
accrue at the rate of 10% per annum of the sum of (i) the liquidation Value and
(ii) all accumulated and unpaid dividends thereon. Such dividends shall
commence to accrue on each share of Series B Preferred Stock from the date of
issuance thereof whether or not declared by the Board of Directors and shall
continue to accrue thereon until the date the Liquidation Value of such share
(plus all accrued and unpaid dividends thereon) is paid. For purposes of
determining the amount of dividends accrued on the Series B Preferred Stock in
connection with the sale, redemption or repurchase of any Series B Preferred
Stock which may occur prior to December 31 of any year, the applicable dividend
rate(s) for such period shall be multiplied by a fraction, the numerator of
which is the actual number of days elapsed in the then current year and the
denominator of which is 365. Such dividends shall be payable annually to the
record holders of the Series B Preferred Stock on December 31 of each year
commencing December 31, 1994 which dividends shall be payable in additional
shares of Series B Preferred Stock valued at $1,000 per share which shares shall
be deemed fully paid and non-assessable; provided, however, in the event the
dividends pursuant to Article Third, part I, Section 2(a) are paid in cash, then
the dividends payable to the holders of the Series B Preferred Stock for such
year may, at the election of the Board of Directors, be paid in cash by wire
transfer of immediately available federal funds.
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(b) Except as otherwise provided herein, if at any time the
Corporation pays less than the total amount of dividends then accrued with
respect to the Series B Preferred Stock, such payment shall be distributed
ratably among the holders thereof based upon the aggregate accrued by unpaid
dividends on the Series B Preferred Stock held by each holder.
(c) Except as otherwise provided in this Amendment, so long as any
shares of Series B Preferred Stock are outstanding, the Corporation will not
declare, pay or set apart for payment any dividends or make any other
distribution on or redeem any Junior Securities other than as may be required
under the Shareholders' Agreement and will not permit any subsidiary or other
affiliate to redeem, purchase or otherwise acquire for value, or set apart for
any sinking or other analogous fund for the redemption or purchase of, any
Junior Securities.
3. Liquidation Preference. (a) In the event of any liquidation,
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dissolution or winding up of the affairs of the Corporation, either voluntarily
or involuntarily, each holder of Series B Preferred Stock shall be entitled,
after provision for the payment of the Corporation's debts and other liabilities
and payment in full of the aggregate Liquidation Value of all shares of Series A
Preferred Stock plus all accrued and unpaid dividends on the Series A Preferred
Stock, including the Additional Dividends, if any, to be paid in cash by wire
transfer of immediately available federal funds the aggregate Liquidation Value
of all shares of Series B Preferred Stock held by such holder plus an amount
equal to the sum of all accrued and unpaid dividends thereon, whether or not
declared to the date of such payment, before any distribution is made on any
Junior Securities. If, upon any such liquidation, dissolution or other winding
up of the affairs of the Corporation, the net assets of the Corporation
distributable among the holders of all outstanding shares of the Series B
Preferred Stock shall be insufficient to permit the payment in full to such
holders of the preferential amounts to which they are entitled, then the entire
net assets of the Corporation remaining after the provision for the payment of
the Corporation's debts and other liabilities shall be distributed among the
holders of the Series B Preferred Stock ratably in proportion to the full
amounts to which they would otherwise be respectively entitled.
(b) Holders of Series B Preferred Stock shall not be entitled to any
additional distribution in the event of any liquidation, dissolution or winding
up the affairs of the Corporation in excess of the preferential amount referred
to in Section 3(a) above.
4. Voting Rights. (a) The holders of Series B Preferred Stock
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shall not have or be entitled to any voting rights or powers, either general or
special, except as required by law and subparagraph (b) of this Section 4.
(b) The holders of shares of Series B Preferred Stock shall have the
following voting rights:
(i) The affirmative vote of the holder of a majority of the
outstanding shares of Series B Preferred Stock voting separately as a
single series, in person or by proxy, at a special or annual meeting of
stockholders called for the purpose, shall be necessary to (i) authorize or
increase the authorized number of shares of, or issue, any class or series
of
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the Corporation's capital stock ranking (either as to dividends or upon
liquidation, dissolution or winding up) prior to or on a parity with the
Series B Preferred Stock, including shares of Series B Preferred Stock
authorized pursuant to this Certificate of Amendment and issued after the
date of original issuance of the Series B Preferred Stock, provided that no
such vote shall be required to authorize or issue additional shares of
Series A Preferred Stock including shares of Series A Preferred Stock
issued as a dividend to the holders of Series A Preferred Stock in
accordance with Section 2 of part I hereof or in accordance with the terms
of the Shareholders' Agreement or (ii) amend, repeal or change, directly or
indirectly, any of the provisions of the Certificate of Incorporation of
the Corporation, as amended, in any manner which would alter or change the
powers, preferences or special rights of the shares of Series B Preferred
Stock so as to affect them adversely.
(ii) The rights of holders of shares of Series B Preferred Stock to
vote or take any other actions as provided in this Section 4 may be
exercised at any annual meeting of stockholders or at a special meeting of
stockholders held for such purposes. At each meeting of stockholders at
which the holders of shares of Series B Preferred Stock shall have the
right, voting separately as single series, to take any action as provided
in this Section 4, the presence in person or by proxy of the holders of
record of a majority of the total number of shares of Series B Preferred
Stock then outstanding and entitled to vote on the matter shall be
necessary and sufficient to on the matter shall be necessary and sufficient
to constitute a quorum. At any such meeting or at any adjournment thereof,
in the absence of a quorum of the holders of shares of Series B Preferred
Stock, a majority of the holders of such shares present in person or by
proxy shall have the power to adjourn the meeting as to the actions to be
taken by the holders of shares of Series B Preferred Stock from time to
time and place to place without notice other than announcement at the
meeting until a quorum shall be present.
(iii) For the taking of any action as provided in this Section 4 by
the holders of shares of Series B Preferred Stock, each such holder shall
have one vote for each share of such stock standing in his name on the
transfer books of the Corporation as of any record date fixed for such
purpose or, if no such date be fixed, at the close of business on the
business day next preceding the day on which notice is given, or if notice
is waived, at the close of business on the business day next preceding the
day on which the meeting is held. "Business Day" shall mean any date other
than a Saturday, Sunday or a day on which banking institutions in the State
of Rhode Island are authorized or obligated by law or executive order to
close.
5. Redemption. (a) The Series B Preferred Stock may be redeemed at
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the option of the Corporation or the holder(s) of a majority of the then
outstanding Series B Preferred Stock on the late to occur of (i) the redemption
of all outstanding Series A Preferred Stock or (ii) November 1, 2003 (the
"Series B Optional Redemption"). In either case, the Corporation shall notify
the holders of the Series B Preferred Stock or the holders of majority of the
outstanding Series B Preferred Stock shall notify the Corporation, as the case
may be, in writing of its or their
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intent to exercise the rights afforded by this Section 5(a) and specify a date
not less than 10 nor more than 60 days from the date of such notice on which the
Series B Preferred Stock shall be redeemed (the "Series B Optional Redemption
Date"). Upon receipt of any such notice from a majority of the holders of the
Series B Preferred Stock, the Corporation shall promptly notify the remaining
holders of the Series B Preferred Stock of the Series B Optional Redemption Date
and offer such shareholders the opportunity to redeem their shares of Series B
Preferred Stock on such Series B Optional Redemption Date. The recipients of
such notice may participate in the Series B Optional Redemption by giving prompt
written notice to the Corporation to such effect. The Corporation shall redeem
on the Series B Optional Redemption Date all shares of Series B Preferred Stock
held by the holders of the Series B Preferred Stock electing to participate in
such Series B Optional Redemption in cash by wire transfer of immediately
available funds at the Liquidation Value plus an amount equal to the sum of all
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accrued and unpaid dividends (whether or not declared by the Board of Directors)
on the Series B Preferred Stock to be redeemed on such Series B Optional
Redemption Date.
(b) Up to 100 shares of Series B Preferred Stock may be redeemed
during any calendar year from any holder or holders of Series B Preferred Stock
who is no longer employed by the Corporation (each a "Series B mandatory
Redemption"); provided, however, that the Series B Preferred Stock has been held
by any such holder for at least two (2) years. The Corporation shall give any
such holder of Series B Preferred Stock not less than 10 nor more than 20 days
notice of such redemption (the date set forth in such notice for the redemption
of said shares of Series B Preferred Stock shall hereinafter be referred to as
the "Series B Mandatory Redemption Date"). The Corporation shall redeem on the
Series B Mandatory Redemption Date all shares of Series B Preferred Stock held
by the holders of Series B Preferred Stock entitled to participate in such
Series B Mandatory Redemption in cash by wire transfer of immediately available
funds at the Liquidation Value plus an amount equal to the sum of all accrued
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and unpaid dividends (whether or not declared by the Board of Directors) on the
Series B Preferred Stock to be redeemed as of the Series B Mandatory Redemption
Date.
(c) On and after any Series B Optional Redemption Date or any Series B
Mandatory Redemption Date, dividends will cease to accumulate on shares of
Series B Preferred Stock to be redeemed and the holders of the Series B
Preferred Stock shall cease to have any rights as stockholders of the
Corporation except the right to receive, without interest, the Liquidation Value
thereof and an amount equal to the sum of all accrued and unpaid dividends upon
the surrender of the certificate(s) representing the Series B Preferred Stock to
the Corporation; provided, however, that in the event any holder of Series B
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Preferred Stock tenders its shares to the Corporation on any Series B Optional
Redemption Date or any Series B Mandatory Redemption Date, the Corporation shall
be obligated to pay interest on the Liquidation Value at the maximum rate
allowable under applicable law in the event the Corporation defaults in its
obligation to pay the Liquidation Value on any such Series B Optional Redemption
Date or any Series B Mandatory Redemption Date. If less than all of the
outstanding shares of Series B Preferred Stock are to be redeemed, such shares
shall be redeemed pro rata in accordance with the number of Series B Preferred
--- ----
Stock owned by each holder of Series B Preferred Stock.
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(d) The redemption by the Corporation of all or any part of the Series
B Preferred stock pursuant to this Section 5 is subject to the provisions of
applicable corporate law.
6. Redemption Notice. The notice described in Section 5 hereof
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shall be sent, if by or on behalf of the Corporation to the holders of the
Series B Preferred Stock at their respective addresses as shall then appear on
the records of the Corporation, or if by any holder of Series B Preferred Stock
to the Corporation at 100 Park Avenue, New York, New York 10017, Attention:
Chief Financial Officer, by first class mail, postage prepaid, (i) notifying
such recipient of the redemption, the date of such redemption, the number of
shares of Series B Preferred Stock to be redeemed, and the redemption price
therefor and (ii) in the case of any notice by or on behalf of the Corporation,
stating the place or places at which the shares called for redemption shall,
upon presentation and surrender of such certificates representing such shares,
be redeemed.
7. Status of Reacquired Shares. Shares of Series B Preferred Stock
---------------------------
which have been issued and reacquired in any manner shall (upon compliance with
any applicable provisions of the laws of the State of New York) have the status
of authorized and unissued shares of Series B Preferred Stock issuable in series
undesignated as to series and may be redesignated and reissued.
8. Exclusion of Other Rights. Except as may otherwise be required
-------------------------
by law, the shares of Series B Preferred Stock shall not have any preferences or
relative, participating, optional or other special rights, other than those
specifically set forth in this Certificate of Amendment. The shares of Series B
Preferred Stock shall have no preemptive or subscription rights.
9. Rank. The Series B Preferred Stock shall rank junior upon
----
liquidation, dissolution or winding up to the Series A Preferred Stock, whenever
issued, provided, however, that the Series B Preferred Stock shall be on a
parity with the Series A Preferred Stock as to dividends. The Series B
Preferred Stock shall rank senior upon liquidation, dissolution or winding up to
all other classes of Junior Securities.
10. Identical Rights. Each share of the Series B Preferred Stock
----------------
shall have the same relative rights and preferences as, and shall be identical
in all respects with, all other shares of the Series B Preferred Stock.
11. Certificates. So long as any shares of the Series B Preferred
------------
Stock are outstanding, there shall be set forth on the face or back of each
stock certificate issued by the Corporation a statement that the Corporation
shall furnish without charge to each shareholder who so requests, a full
statement of the designation and relative rights, preferences and limitations of
each class of stock or series thereof that the Corporation is authorized to
issue and of the authority of the Board of Directors to designate and fix the
relative rights, preferences and limitations of each series.
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FOURTH: The foregoing provision and amendment was duly authorized in
accordance with Section 502 of the Business Corporation Law by the unanimous
written consent of the Board of Directors of the Corporation.
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IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Amendment on November 9, 1993 and affirms its contents as true under penalties
of perjury.
/s/ Leslie Goldberg
--------------------------
Leslie Goldberg
President
/s/ John Rykala
-----------------------
John Rykala
Secretary
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