EXHIBIT 4.2
RANGE RESOURCES CORPORATION
CERTIFICATE OF DESIGNATION OF THE
5.90% CUMULATIVE CONVERTIBLE PREFERRED STOCK OF
RANGE RESOURCES CORPORATION
Pursuant to Section 151 of the Delaware General Corporation Law
The undersigned, John H. Pinkerton, President and Chief Executive
Officer of Range Resources Corporation, a Delaware corporation (the "COMPANY"),
does hereby certify that by unanimous written consent of a duly authorized and
appointed committee of the Board of Directors of the Company effective September
15, 2003, the following resolution was duly adopted:
RESOLVED, that pursuant to the authority vested in the Board of
Directors of the Company by Article Fourth of the Company's Certificate of
Incorporation and delegated to this Committee of the Board of Directors by
resolutions duly and validly adopted and approved by the Board of Directors at a
special meeting thereof on September 12, 2003, a series of preferred stock of
the Company be, and it hereby is, created out of the authorized but unissued
shares of the preferred stock of the Company, such series to be designated 5.90%
Cumulative Convertible Preferred Stock, to consist of 1,500,000 shares, par
value $1.00 per share, of which the preferences and relative and other rights,
and the qualifications, limitations or restrictions thereof, shall be (in
addition to those set forth in the Company's Certificate of Incorporation) as
follows:
1. Designation and Amount; Ranking.
(a) There shall be created from the 10,000,000 shares of
preferred stock, par value $1.00 per share, of the Company authorized
to be issued pursuant to the Certificate of Incorporation, a series of
preferred stock, designated as the "5.90% Cumulative Convertible
Preferred Stock," par value $1.00 per share (the "PREFERRED STOCK"),
and the number of shares of such series shall be 1,500,000. Such number
of shares may be decreased by resolution of the Board of Directors;
provided that no decrease shall reduce the number of shares of
Preferred Stock to a number less than that of the shares of Preferred
Stock then outstanding plus the number of shares issuable upon exercise
of options or rights then outstanding.
(b) The Preferred Stock will, with respect to dividend rights
or rights upon the liquidation, winding-up or dissolution of the
Company rank (i) senior to all Junior Stock, (ii) on a parity with all
other Parity Stock and (iii) junior to all Senior Stock.
2. Definitions. As used herein, the following terms shall have
the following meanings:
(1) "ACCRUED DIVIDENDS" shall mean, with respect to any
share of Preferred Stock, as of any date, the accrued and unpaid
dividends on such share from and including the most recent Dividend
Payment Date (or the Issue Date, if such date is prior to the first
Dividend Payment Date) to but not including such date.
(2) "ACCUMULATED DIVIDENDS" shall mean, with respect to
any share of Preferred Stock, as of any date, the aggregate accumulated
and unpaid dividends on such share from the Issue Date until the most
recent Dividend Payment Date on or prior to such date. There shall be
no Accumulated Dividends with respect to any share of Preferred Stock
prior to the first Dividend Payment Date.
(3) "AFFILIATE" shall have the meaning ascribed to it, on
the date hereof, under Rule 405 of the Securities Act of 1933, as
amended.
(4) "BOARD OF DIRECTORS" shall mean the Board of
Directors of the Company or, with respect to any action to be taken by
the Board of Directors, any committee of the Board of Directors duly
authorized to take such action.
(5) "BUSINESS DAY" shall mean any day other than a
Saturday, Sunday or other day on which commercial banks in The City of
New York are authorized or required by law or executive order to close.
(6) "CHANGE OF CONTROL" shall mean any of the following
events: (i) the sale, lease or transfer, in one or a series of related
transactions, of all or substantially all of the Company's assets
(determined on a consolidated basis) to any Person or group (as such
term is used in Section 13(d)(3) of the Exchange Act); (ii) the
adoption of a plan the consummation of which would result in the
liquidation or dissolution of the Company; or (iii) the acquisition,
directly or indirectly, by any Person or group (as such term is used in
Section 13(d)(3) of the Exchange Act), of beneficial ownership (as
defined in Rule 13d-3 under the Exchange Act) of more than 50% of the
aggregate voting power of the Voting Stock of the Company.
(7) "CHANGE OF CONTROL DATE" shall mean the date on which
the Change of Control event occurs.
(8) "CONVERSION PRICE" shall mean $8.50, subject to
adjustment as set forth in Section 8(d).
(9) "COMMON STOCK" shall mean the common stock, par value
$0.01 per share, of the Company, or any other class of stock resulting
from successive changes or reclassifications of such common stock
consisting solely of changes in par value, or from par value to no par
value, or as a result of a subdivision, combination, or merger,
consolidation or similar transaction in which the Company is a
constituent corporation.
(10) "DTC" or "DEPOSITORY" means The Depository Trust
Company.
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(11) "DIVIDEND PAYMENT DATE" shall mean March 31, June 30,
September 30 and December 31 of each year, commencing December 31,
2003.
(12) "DIVIDEND RECORD DATE" shall mean March 15, June 15,
September 15 and December 15 of each year.
(13) "EXCHANGE ACT" shall mean the Securities Exchange Act
of 1934, as amended, and the rules and regulations promulgated
thereunder.
(14) "HOLDER" or "HOLDER" shall mean a holder of record of
the Preferred Stock.
(15) "ISSUE DATE" shall mean the original date of issuance
of a particular share or particular shares of Preferred Stock.
(16) "JUNIOR STOCK" shall mean all classes of common stock
of the Company and each other class of capital stock or series of
preferred stock established after the Original Issue Date, by the Board
of Directors, the terms of which do not expressly provide that such
class or series ranks senior to or on parity with the Preferred Stock
as to dividend rights or rights upon the liquidation, winding-up or
dissolution of the Company.
(17) "LIQUIDATION PREFERENCE" shall mean, with respect to
each share of Preferred Stock, $50.
(18) "MARKET VALUE" shall mean the average closing price
of the Common Stock for a five consecutive trading day period on the
NYSE (or such other national securities exchange or automated quotation
system on which the Common Stock is then listed or authorized for
quotation or, if the Common Stock is not so listed or authorized for
quotation, an amount determined in good faith by the Board of Directors
to be the fair value of the Common Stock).
(19) "NYSE" shall mean the New York Stock Exchange, Inc.
(20) "OFFICER" means the Chairman of the Board of
Directors, the President, any Vice President, the Treasurer, the
Secretary or any Assistant Secretary of the Company.
(21) "OFFICERS' CERTIFICATE" means a certificate signed by
two Officers.
(22) "OPINION OF COUNSEL" means a written opinion from
legal counsel who is acceptable to the Transfer Agent. The counsel may
be an employee of or counsel to the Company or the Transfer Agent.
(23) "ORIGINAL ISSUE DATE" means the original date of the
first issuance of shares of Preferred Stock.
(24) "PARITY STOCK" shall mean any class of capital stock
or series of preferred stock established after the Original Issue Date
by the Board of Directors, the terms of
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which expressly provide that such class or series will rank on parity
with the Preferred Stock as to dividend rights or rights upon the
liquidation, winding-up or dissolution of the Company.
(25) "PERSON" shall mean any individual, corporation,
general partnership, limited partnership, limited liability
partnership, joint venture, association, joint-stock company, trust,
limited liability company, unincorporated organization or government or
any agency or political subdivision thereof.
(26) "REDEMPTION DATE" shall mean a date that is fixed for
redemption of the Preferred Stock by the Company in accordance with
Section 4 hereof.
(27) "SEC" or "COMMISSION" shall mean the Securities and
Exchange Commission.
(28) "SECURITIES ACT" means the Securities Act of 1933, as
amended.
(29) "SENIOR STOCK" shall mean each class of capital stock
or series of preferred stock established after the Original Issue Date
by the Board of Directors, the terms of which expressly provide that
such class or series will rank senior to the Preferred Stock as to
dividend rights or rights upon the liquidation, winding-up or
dissolution of the Company.
(30) "SHELF REGISTRATION STATEMENT" shall mean a shelf
registration statement, if any, filed with the SEC to cover resales of
Transfer Restricted Securities by holders thereof.
(31) "TRANSFER AGENT" shall mean Computershare Investor
Services LLC, the Company's duly appointed transfer agent, registrar,
paying and conversion and dividend disbursing agent for the Preferred
Stock. The Company may, in its sole discretion, remove the Transfer
Agent with 10 days' prior notice to the Transfer Agent; provided, that
the Company shall appoint a successor Transfer Agent who shall accept
such appointment prior to the effectiveness or such removal.
(32) "TRANSFER RESTRICTED SECURITIES" shall mean each
share of Preferred Stock (or the shares of Common Stock into which such
share of Preferred Stock is convertible) until (i) the date on which
such security or its predecessor has been effectively registered under
the Securities Act and disposed of in accordance with the Shelf
Registration Statement or (ii) the date on which such security or
predecessor is distributed to the public pursuant to Rule 144 under the
Securities Act or is saleable pursuant to Rule 144(k) under the
Securities Act.
(33) "VOTING RIGHTS TRIGGERING EVENT" shall mean the
failure of the Company to pay dividends on the Preferred Stock with
respect to six or more quarterly periods (whether or not consecutive).
(34) "VOTING STOCK" shall mean, with respect to any
Person, securities of any class or classes of Capital Stock in such
Person entitling the holders thereof (whether at
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all times or only so long as no senior class of stock has voting power
by reason of contingency) to vote in the election of members of the
Board of Directors or other governing body of such Person. For purposes
of this definition, "CAPITAL STOCK" shall mean, with respect to any
Person, any and all shares, interests, participations or other
equivalents (however designated) of corporate stock or partnership
interests and any and all warrants, options and rights with respect
thereto (whether or not currently exercisable), including each class of
common stock and preferred stock of such Person.
3. Dividends.
(a) The holders of shares of the outstanding Preferred
Stock shall be entitled, when, as and if declared by the Board of
Directors out of funds of the Company legally available therefor, to
receive cumulative cash dividends at the rate per annum of 5.90% per
share on the Liquidation Preference (equivalent to $2.95 per annum per
share), payable quarterly in arrears (the "DIVIDEND RATE"). Dividends
payable for each full dividend period will be computed by dividing the
Dividend Rate by four and shall be payable in arrears on each Dividend
Payment Date (commencing December 31, 2003) for the quarterly period
ending immediately prior to such Dividend Payment Date, to the holders
of record of Preferred Stock at the close of business on the Dividend
Record Date applicable to such Dividend Payment Date. Such dividends
shall be cumulative from the most recent date as to which dividends
shall have been paid or, if no dividends have been paid, from the Issue
Date (whether or not in any dividend period or periods there shall be
funds of the Company legally available for the payment of such
dividends) and shall accrue on a day-to-day basis, whether or not
earned or declared, from and after the Issue Date. Dividends payable
for any partial dividend period shall be computed on the basis of days
elapsed over a 360-day year consisting of twelve 30-day months.
Accumulations of dividends on shares of Preferred Stock shall not bear
interest.
(b) No dividend will be declared or paid upon, or any sum
set apart for the payment of dividends upon, any outstanding share of
the Preferred Stock with respect to any dividend period unless all
dividends for all preceding dividend periods have been declared and
paid or declared and a sufficient sum set apart for the payment of such
dividend, upon all outstanding shares of Preferred Stock.
(c) No dividends or other distributions (other than a
dividend or distribution payable solely in shares of Parity Stock or
Junior Stock (in the case of Parity Stock) or Junior Stock (in the case
of Junior Stock) and other than cash paid in lieu of fractional shares)
may be declared, made or paid, or set apart for payment upon, any
Parity Stock or Junior Stock, nor may any Parity Stock or Junior Stock
be redeemed, purchased or otherwise acquired for any consideration (or
any money paid to or made available for a sinking fund for the
redemption of any Parity Stock or Junior Stock) by or on behalf of the
Company (except by conversion into or exchange for shares of Parity
Stock or Junior Stock (in the case of Parity Stock) or Junior Stock (in
the case of Junior Stock)), unless full Accumulated Dividends shall
have been or contemporaneously are declared and paid, or are declared
and a sum sufficient for the payment thereof is set apart for such
payment, on the Preferred Stock and any Parity Stock for all dividend
payment periods terminating on or prior to the date of such
declaration, payment, redemption, purchase or acquisition.
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Notwithstanding the foregoing, if full dividends have not been paid on
the Preferred Stock and any Parity Stock, dividends may be declared and
paid on the Preferred Stock and such Parity Stock so long as the
dividends are declared and paid pro rata so that the amounts of
dividends declared per share on the Preferred Stock and such Parity
Stock will in all cases bear to each other the same ratio that
accumulated and unpaid dividends per share on the shares of Preferred
Stock and such other Parity Stock bear to each other.
(d) Holders of shares of Preferred Stock shall not be
entitled to any dividends on the Preferred Stock, whether payable in
cash, property or stock, in excess of full cumulative dividends. No
interest, or sum of money in lieu of interest, shall be payable in
respect of any dividend payment or payments on the Preferred Stock
which may be in arrears.
(e) The holders of shares of Preferred Stock at the close
of business on a Dividend Record Date will be entitled to receive the
dividend payment on those shares on the corresponding Dividend Payment
Date notwithstanding the subsequent conversion thereof or the Company's
default in payment of the dividend due on that Dividend Payment Date.
However, shares of Preferred Stock surrendered for conversion during
the period between the close of business on any Dividend Record Date
and the close of business on the Business Day immediately preceding the
applicable Dividend Payment Date must be accompanied by payment of an
amount equal to the dividend payable on the shares on that Dividend
Payment Date. A holder of shares of Preferred Stock on a Dividend
Record Date who (or whose transferee) tenders any shares for conversion
on the corresponding Dividend Payment Date will receive the dividend
payable by the Company on the Preferred Stock on that date, and the
converting holder need not include payment in the amount of such
dividend upon surrender of shares of Preferred Stock for conversion.
Except as provided above with respect to a voluntary conversion
pursuant to Section 8, the Company shall make no payment or allowance
for unpaid dividends, whether or not in arrears, on converted shares or
for dividends on the shares of Common Stock issued upon conversion.
4. Optional Redemption by the Company. Shares of Preferred Stock
shall be redeemable by the Company as provided below.
(a) Except as otherwise provided herein, the Company may
not redeem any shares of Preferred Stock before September 30, 2007. On
or after September 30, 2007, the Company may redeem any or all shares
of the Preferred Stock in accordance with this Section 4. Any
redemption pursuant to this Section 4 will be made upon not less than
30 days nor more than 60 days notice to the holders of the Preferred
Stock, at the following prices per share, together with Accumulated
Dividends and Accrued Dividends thereon to, but excluding, the
Redemption Date (collectively, the "REDEMPTION PRICE"), if redeemed
during the 12-month period beginning September 30:
Year Price per Share
---- ---------------
2007 $ 51.50
2008 $ 51.20
2009 $ 50.90
2010 $ 50.60
2011 $ 50.30
2012 and thereafter $ 50.00
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(b) In the event the Company elects to redeem shares of
Preferred Stock, the Company shall:
(i) send a written notice to the Transfer Agent
of the Redemption Date, stating the number of shares to be
redeemed and the Redemption Price, at least 35 days before the
Redemption Date (unless a shorter period shall be satisfactory
to the Transfer Agent).
(ii) send a written notice by first class mail to
each holder of record of the Preferred Stock at such holder's
registered address, not fewer than 30 nor more than 60 days
prior to the Redemption Date stating:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the Conversion Price;
(4) the name and address of the Transfer Agent;
(5) that shares of Preferred Stock called for
redemption may be converted at any time before 5:00 p.m., New
York City time on the Business Day immediately preceding the
Redemption Date;
(6) that holders who want to convert shares of
the Preferred Stock must satisfy the requirements set forth in
Section 8 of this certificate;
(7) that shares of the Preferred Stock called
for redemption must be surrendered to the Transfer Agent to
collect the Redemption Price;
(8) if fewer than all the outstanding shares of
the Preferred Stock are to be redeemed by the Company, the
number of shares to be redeemed;
(9) that, unless the Company defaults in making
payment of such Redemption Price, dividends in respect of the
shares of Preferred Stock called for redemption will cease to
accrue on and after the Redemption Date;
(10) the CUSIP number of the Preferred Stock; and
(11) any other information the Company wishes to
present.
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(c) If the Company gives notice of redemption, then, by
12:00 p.m., New York City time, on the Redemption Date, to the extent
funds are legally available, the Company shall, with respect to:
(i) shares of the Preferred Stock held by DTC or
its nominees, deposit or cause to be deposited, irrevocably
with DTC funds sufficient to pay the Redemption Price and
shall give DTC irrevocable instructions and authority to pay
the Redemption Price to holders of such shares of the
Preferred Stock; and
(ii) shares of the Preferred Stock held in
certificated form, deposit or cause to be deposited,
irrevocably with the Transfer Agent funds sufficient to pay
the Redemption Price and shall give the Transfer Agent
irrevocable instructions and authority to pay the Redemption
Price to holders of such shares of the Preferred Stock upon
surrender of their certificates evidencing their shares of the
Preferred Stock.
(d) If on the Redemption Date, DTC and/or the Transfer
Agent holds or hold money sufficient to pay the Redemption Price for
the shares of Preferred Stock delivered for redemption as set forth
herein, dividends shall cease to accrue on those shares of the
Preferred Stock called for redemption and all rights of holders of such
shares shall terminate except for the right to receive the Redemption
Price.
(e) Payment of the Redemption Price for shares of the
Preferred Stock is conditioned upon book-entry transfer or physical
delivery of certificates representing the Preferred Stock, together
with necessary endorsements, to the Transfer Agent at any time after
delivery of the notice of redemption.
(f) Payment of the Redemption Price for the Preferred
Stock shall be made:
(i) if book-entry transfer or physical delivery
of the Preferred Stock has been made by or on the Redemption
Date, on the Redemption Date, or
(ii) if book-entry transfer or physical delivery
of the Preferred Stock has not been made by or on the
Redemption Date, at the time of book-entry transfer or
physical delivery of the Preferred Stock.
(g) If the Redemption Date falls after a Dividend Record
Date and before the related Dividend Payment Date, holders of the
shares of Preferred Stock at the close of business on that Dividend
Record Date shall be entitled to receive the dividend payable on those
shares on the corresponding Dividend Payment Date. However, the
Redemption Price payable on such Redemption Date shall not include any
amount in respect of dividends declared and payable on any subsequent
Dividend Payment Date.
(h) In the case of any partial redemption, the Company
shall select the shares of Preferred Stock to be redeemed on a pro rata
basis, by lot or any other method that the Board of Directors, in its
discretion, deems fair and appropriate. However, the Company may redeem
all the shares held by holders of fewer than 100 shares or who would
hold fewer than 100 shares as a result of the redemption.
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(i) Upon surrender of a certificate or certificates
representing shares of the Preferred Stock that is or are redeemed in
part, the Company shall execute and the Transfer Agent shall
authenticate and deliver to the holder, a new certificate of
certificates representing shares of the Preferred Stock in an amount
equal to the unredeemed portion of the shares of Preferred Stock
surrendered for partial redemption.
5. Change of Control.
(a) Upon the occurrence of a Change of Control, each
holder of Preferred Stock shall, in the event that the Market Value for
the period ending on the Change of Control Date is less than the
Conversion Price, have a one-time option (the "CHANGE OF CONTROL
OPTION") to convert all of such holder's outstanding shares of
Preferred Stock into fully paid and nonassessable shares of Common
Stock at an adjusted Conversion Price equal to the greater of (i) the
Market Value for the period ending on the Change of Control Date and
(ii) $4.43. The Change of Control Option must be exercised, if at all,
during the period of not less than 30 days nor more than 60 days
commencing on the third Business Day after notice of a Change in
Control has been given by the Company in accordance with Section 5(b).
In lieu of issuing the shares of Common Stock issuable upon conversion
in the event of a Change of Control, the Company may, at its option,
make a cash payment equal to the Market Value for each share of such
Common Stock otherwise issuable determined for the period ending on the
Change of Control Date. Notwithstanding the foregoing, upon the
occurrence of a Change of Control in which (i) each holder of Common
Stock receives consideration consisting solely of common stock of the
successor, acquiror or other third party (and cash paid in lieu of
fractional shares) that is listed on a national securities exchange or
quoted on the NASDAQ National Market and (ii) all the Common Stock has
been exchanged for, converted into or acquired for common stock of the
successor, acquiror or other third party (and cash in lieu of factional
shares), and the Preferred Stock becomes convertible solely into such
common stock, the Conversion Price will not be adjusted as described in
this Section 5(a).
(b) In the event of a Change of Control (other than a
Change of Control described in the last sentence of Section 5(a)),
notice of such Change of Control shall be given, within five Business
Days of the Change of Control Date, by the Company by first-class mail
to each record holder of shares of Preferred Stock, at such holder's
address as the same appears on the books of the Company. Each such
notice shall state (i) that a Change of Control has occurred; (ii) the
last day on which the Change of Control Option may be exercised (the
"EXPIRATION DATE") pursuant to the terms hereof; (iii) the name and
address of the Transfer Agent; and (iv) the procedures that holders
must follow to exercise the Change of Control Option.
(c) On or before the Expiration Date, each holder of
shares of Preferred Stock wishing to exercise the Change of Control
Option shall surrender the certificate or certificates representing the
shares of Preferred Stock to be converted, in the manner and at the
place designated in the notice described in Section 5(b), and on such
date the cash or shares of Common Stock due to such holder shall be
delivered to the Person whose name appears on such certificate or
certificates as the owner thereof and the shares represented by each
surrendered certificate shall be returned to authorized but unissued
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shares. Upon surrender (in accordance with the notice described in
Section 5(b)) of the certificate or certificates representing any
shares to be so converted (properly endorsed or assigned for transfer,
if the Company shall so require and the notice shall so state), such
shares shall be converted by the Company at the adjusted Conversion
Price, if applicable, as described in Section 5(a).
(d) The rights of holders of Preferred Stock pursuant to
this Section 5 are in addition to, and not in lieu of, the rights of
holders of Preferred Stock provided for in Section 8 hereof.
6. Voting.
(a) The shares of Preferred Stock shall have no voting
rights except as set forth below or as otherwise required by Delaware
law from time to time:
(i) If and whenever at any time or times a
Voting Rights Triggering Event occurs, then the holders of
shares of Preferred Stock, voting as a single class with any
other preferred stock or preference securities having similar
voting rights that are exercisable (the "VOTING RIGHTS
CLASS"), will be entitled at the next regular or special
meeting of stockholders of the Company to elect two additional
directors of the Company, unless the Board of Directors is
comprised of fewer than six directors at such time, in which
case the Voting Rights Class shall be entitled to elect one
additional director. Upon the election of any such additional
directors, the number of directors that comprise the Board of
Directors shall be increased by such number of additional
directors.
(ii) Such voting rights may be exercised at a
special meeting of the holders of the shares of the Voting
Rights Class, called as hereinafter provided, or at any annual
meeting of stockholders held for the purpose of electing
directors, and thereafter at each such annual meeting until
such time as all dividends in arrears on the shares of
Preferred Stock shall have been paid in full, at which time or
times such voting rights and the term of the directors elected
pursuant to Section 6(a)(i) shall terminate.
(iii) At any time when such voting rights shall
have vested in holders of shares of the Voting Rights Class,
an Officer of the Company may call, and, upon written request
of the record holders of shares representing at least
twenty-five percent (25%) of the voting power of the shares
then outstanding of the Voting Rights Class, addressed to the
Secretary of the Company, shall call a special meeting of the
holders of shares of the Voting Rights Class. Such meeting
shall be held at the earliest practicable date upon the notice
required for annual meetings of stockholders at the place for
holding annual meetings of stockholders of the Company, or, if
none, at a place designated by the Board of Directors.
Notwithstanding the provisions of this Section 6(a)(iii), no
such special meeting shall be called during a period within
the 60 days immediately preceding the date fixed for the next
annual meeting of stockholders in which such case, the
election
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of directors pursuant to Section 6(a)(ii) shall be held at
such annual meeting of stockholders.
(iv) At any meeting held for the purpose of
electing directors at which the holders of the Voting Rights
Class shall have the right to elect directors as provided
herein, the presence in person or by proxy of the holders of
shares representing more than fifty percent (50%) in voting
power of the then outstanding shares of the Voting Rights
Class shall be required and shall be sufficient to constitute
a quorum of such class for the election of directors by such
class. The affirmative vote of the holders of shares of
Preferred Stock constituting a majority of the shares of
Preferred Stock present at such meeting, in person or by
proxy, shall be sufficient to elect any such director.
(v) Any director elected pursuant to the voting
rights created under this Section 6(a) shall hold office until
the next annual meeting of stockholders (unless such term has
previously terminated pursuant to Section 6(a)(iii)) and any
vacancy in respect of any such director shall be filled only
by vote of the remaining director so elected by holders of the
Voting Rights Class, or if there be no such remaining
director, by the holders of shares of the Voting Rights Class
at a special meeting called in accordance with the procedures
set forth in this Section 6, or, if no such special meeting is
called, at the next annual meeting of stockholders. Upon any
termination of such voting rights, the term of office of all
directors elected pursuant to this Section 6 shall terminate.
(vi) So long as any shares of Preferred Stock
remain outstanding, unless a greater percentage shall then be
required by law, the Company shall not, without the
affirmative vote or consent of the holders of at least 66-2/3%
of the outstanding Preferred Stock voting or consenting, as
the case may be, separately as one class, amend the
Certificate of Incorporation so as to affect adversely the
specified rights, preferences, privileges or voting rights of
holders of shares of Preferred Stock.
(vii) In exercising the voting rights set forth in
this Section 6(a), each share of Preferred Stock shall be
entitled to one vote.
(b) The Company may authorize, increase the authorized
amount of, or issue any class or series of Senior Stock, Parity Stock
or Junior Stock, without the consent of the holders of Preferred Stock,
and in taking such actions the Company shall not be deemed to have
affected adversely the rights, preferences, privileges or voting rights
of holders of shares of Preferred Stock.
7. Liquidation Rights.
(a) In the event of any liquidation, winding-up or
dissolution of the Company, whether voluntary or involuntary, each
holder of shares of Preferred Stock shall be entitled to receive and to
be paid out of the assets of the Company available for distribution to
its stockholders the Liquidation Preference plus Accumulated Dividends
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and Accrued Dividends thereon in preference to the holders of, and
before any payment or distribution is made on, any Junior Stock,
including, without limitation, on any Common Stock.
(b) Neither the sale, conveyance, exchange or transfer
(for cash, shares of stock, securities or other consideration) of all
or substantially all the assets or business of the Company (other than
in connection with the liquidation, winding-up or dissolution of its
business) nor the merger or consolidation of the Company into or with
any other Person shall be deemed to be a liquidation, winding-up or
dissolution, voluntary or involuntary, for the purposes of this Section
7.
(c) After the payment to the holders of the shares of
Preferred Stock of full preferential amounts provided for in this
Section 7, the holders of Preferred Stock as such shall have no right
or claim to any of the remaining assets of the Company.
(d) In the event the assets of the Company available for
distribution to the holders of shares of Preferred Stock upon any
liquidation, winding-up or dissolution of the Company, whether
voluntary or involuntary, shall be insufficient to pay in full all
amounts to which such holders are entitled pursuant to Section 7(a), no
such distribution shall be made on account of any shares of Parity
Stock upon such liquidation, dissolution or winding-up unless
proportionate distributable amounts shall be paid on account of the
shares of Preferred Stock, ratably, in proportion to the full
distributable amounts for which holders of all Preferred Stock and of
any Parity Stock are entitled upon such liquidation, winding-up or
dissolution.
8. Conversion.
(a) Each holder of Preferred Stock shall have the right,
at its option, exercisable at any time and from time to time from the
Issue Date to convert, subject to the terms and provisions of this
Section 8, any or all of such holder's shares of Preferred Stock. In
such case, the shares of Preferred Stock shall be converted into such
whole number of fully paid and nonassessable shares of Common Stock as
is equal, subject to Section 8(g), to the product of the number of
shares of Preferred Stock being so converted multiplied by the quotient
of (i) the Liquidation Preference divided by (ii) the Conversion Price
(as defined below) then in effect. The Conversion Price initially shall
be $8.50, subject to adjustment as set forth in Section 8(c).
The conversion right of a holder of Preferred Stock shall be
exercised by the holder by the surrender to the Company of the
certificates representing shares to be converted at any time during
usual business hours at its principal place of business or the offices
of its duly appointed Transfer Agent to be maintained by it,
accompanied by written notice to the Company in the form of Exhibit A
that the holder elects to convert all or a portion of the shares of
Preferred Stock represented by such certificate and specifying the name
or names (with address) in which a certificate or certificates for
shares of Common Stock are to be issued and (if so required by the
Company or its duly appointed Transfer Agent) by a written instrument
or instruments of transfer in form reasonably satisfactory to the
Company or its duly appointed Transfer Agent duly
12
executed by the holder or its duly authorized legal representative and
transfer tax stamps or funds therefor, if required pursuant to Section
8(i). Immediately prior to the close of business on the date of receipt
by the Company or its duly appointed Transfer Agent of notice of
conversion of shares of Preferred Stock, each converting holder of
Preferred Stock shall be deemed to be the holder of record of Common
Stock issuable upon conversion of such holder's Preferred Stock
notwithstanding that the share register of the Company shall then be
closed or that certificates representing such Common Stock shall not
then be actually delivered to such holder. On the date of any
conversion, all rights with respect to the shares of Preferred Stock so
converted, including the rights, if any, to receive notices, will
terminate, except only the rights of holders thereof to (i) receive
certificates for the number of whole shares of Common Stock into which
such shares of Preferred Stock have been converted and cash, in lieu of
any fractional shares as provided in Section 8(f); and (ii) exercise
the rights to which they are entitled as holders of Common Stock.
(b) If the last day for the exercise of the conversion
right shall not be a Business Day, then such conversion right may be
exercised on the next preceding Business Day.
(c) The Conversion Price shall be subject to adjustment
as follows:
(i) In case the Company shall at any time or
from time to time (A) pay a dividend (or other distribution)
payable in shares of Common Stock on any class of capital
stock (which, for purposes of this Section 8(c) shall include,
without limitation, any dividends or distributions in the form
of options, warrants or other rights to acquire capital stock)
of the Company (other than the issuance of shares of Common
Stock in connection with the conversion of preferred stock);
(B) subdivide the outstanding shares of Common Stock into a
larger number of shares; (C) combine the outstanding shares of
Common Stock into a smaller number of shares; (D) issue any
shares of its capital stock in a reclassification of the
Common Stock; or (E) pay a dividend or make a distribution to
all holders of shares of Common Stock (other than a dividend
or distribution subject to Section 8(c)(ii)) pursuant to a
stockholder rights plan, "poison pill" or similar arrangement
and excluding dividends payable on the Preferred Stock then,
and in each such case, the Conversion Price in effect
immediately prior to such event shall be adjusted (and any
other appropriate actions shall be taken by the Company) so
that the holder of any share of Preferred Stock thereafter
surrendered for conversion shall be entitled to receive the
number of shares of Common Stock that such holder would have
owned or would have been entitled to receive upon or by reason
of any of the events described above, had such share of
Preferred Stock been converted into shares of Common Stock
immediately prior to the occurrence of such event. An
adjustment made pursuant to this Section 8(c)(i) shall become
effective retroactively (x) in the case of any such dividend
or distribution, to the day immediately following the close of
business on the record date for the determination of holders
of Common Stock entitled to receive such dividend or
distribution or (y) in the case of any such subdivision,
13
combination or reclassification, to the close of business on
the day upon which such corporate action becomes effective.
(ii) In case the Company shall at any time or
from time to time issue to all holders of its Common Stock
rights, options or warrants entitling the holders thereof to
subscribe for or purchase shares of Common Stock (or
securities convertible into or exchangeable for shares of
Common Stock) at a price per share less than the Market Value
for the period ending on the date of issuance (treating the
price per share of any security convertible, or exchangeable
or exercisable into Common Stock as equal to (A) the sum of
the price paid to acquire such security convertible,
exchangeable or exercisable into Common Stock plus any
additional consideration payable (without regard to any
anti-dilution adjustments) upon the conversion, exchange or
exercise of such security into Common Stock divided by (B) the
number of shares of Common Stock into which such convertible,
exchangeable or exercisable security is initially convertible,
exchangeable or exercisable), other than (I) issuances of such
rights, options or warrants if the holder of Preferred Stock
would be entitled to receive such rights, options or warrants
upon conversion at any time of shares of Preferred Stock into
Common Stock and (II) issuances that are subject to certain
triggering events (until such time as such triggering events
occur), then, and in each such case, the Conversion Price then
in effect shall be adjusted by dividing the Conversion Price
in effect on the day immediately prior to the record date of
such issuance by a fraction (y) the numerator of which shall
be the sum of the number of shares of Common Stock outstanding
on such record date plus the number of additional shares of
Common Stock issued or to be issued upon or as a result of the
issuance of such rights, options or warrants (or the maximum
number into or for which such convertible or exchangeable
securities initially may convert or exchange or for which such
options, warrants or other rights initially may be exercised)
and (z) the denominator of which shall be the sum of the
number of shares of Common Stock outstanding on such record
date plus the number of shares of Common Stock which the
aggregate consideration for the total number of such
additional shares of Common Stock so issued (or into or for
which such convertible or exchangeable securities may convert
or exchange or for which such options, warrants or other
rights may be exercised plus the aggregate amount of any
additional consideration initially payable upon the
conversion, exchange or exercise of such security) would
purchase at the Market Value for the period ending on the date
of conversion; provided, that if the Company distributes
rights or warrants (other than those referred to above in this
subparagraph (c)(ii)) pro rata to the holders of Common Stock,
so long as such rights or warrants have not expired or been
redeemed by the Company, (y) the holder of any Preferred Stock
surrendered for conversion shall be entitled to receive upon
such conversion, in addition to the shares of Common Stock
then issuable upon such conversion (the "CONVERSION SHARES"),
a number of rights or warrants to be determined as follows:
(i) if such conversion occurs on or prior to the date for the
distribution to the holders of rights or warrants of separate
certificates evidencing such rights or warrants (the
"DISTRIBUTION DATE"), the same number of rights or warrants to
which a holder of a number of shares of Common Stock equal to
the number of
14
Conversion Shares is entitled at the time of such conversion
in accordance with the terms and provisions applicable to the
rights or warrants and (ii) if such conversion occurs after
the Distribution Date, the same number of rights or warrants
to which a holder of the number of shares of Common Stock into
which such Preferred Stock was convertible immediately prior
to such Distribution Date would have been entitled on such
Distribution Date had such Preferred Stock been converted
immediately prior to such Distribution Date in accordance with
the terms and provisions applicable to the rights and
warrants, and (z) the Conversion Price shall not be subject to
adjustment on account of any declaration, distribution or
exercise of such rights or warrants.
(iii) In case the Company shall at any time or
from time to time (A) make a pro rata distribution to all
holders of shares of its Common Stock consisting of cash
(excluding any cash portion of distributions referred to in
clause (E) of paragraph (c)(i) above, or cash distributed upon
a merger or consolidation to which paragraph (g) below
applies); (B) complete a tender or exchange offer by the
Company or any of its subsidiaries for shares of Common Stock
that involves an aggregate consideration that, together with
(I) any cash and other consideration payable in a tender or
exchange offer by the Company or any of its subsidiaries for
shares of Common Stock expiring within the then-preceding 12
months in respect of which no adjustment pursuant to this
Section 8(c) has been made and (II) the aggregate amount of
any such all-cash distributions referred to in clause (A)
above to all holders of shares of Common Stock within the
then-preceding 12 months in respect of which no adjustments
have been made, exceeds 15% of the Company's market
capitalization on the expiration of such tender offer; or (C)
make a distribution to all holders of its Common Stock
consisting of evidences of indebtedness, shares of its capital
stock other than Common Stock or assets (including securities,
but excluding those dividends, rights, options, warrants and
distributions referred to in paragraphs (c)(i), (c)(ii) above
or this (c)(iii)), then, and in each such case, the Conversion
Price then in effect shall be adjusted by dividing the
Conversion Price in effect immediately prior to the date of
such distribution or completion of such tender or exchange
offer, as the case may be, by a fraction (x) the numerator of
which shall be the Market Value for the period ending on the
record date referred to below, or, if such adjustment is made
upon the completion of a tender or exchange offer, on the
payment date for such offer, and (y) the denominator of which
shall be such Market Value less the then fair market value (as
determined by the Board of Directors of the Company) of the
portion of the cash, evidences of indebtedness, securities or
other assets so distributed or paid in such tender or exchange
offer, applicable to one share of Common Stock (but such
denominator shall not be less than one); provided, however,
that no adjustment shall be made with respect to any
distribution of rights to purchase securities of the Company
if the holder of shares of Preferred Stock would otherwise be
entitled to receive such rights upon conversion at any time of
shares of Preferred Stock into shares of Common Stock unless
such rights are subsequently redeemed by the Company, in which
case such redemption shall be treated for purposes of this
Section 8(c)(iii) as a dividend on the Common Stock. Such
adjustment shall be made whenever any
15
such distribution is made or tender or exchange offer is
completed, as the case may be, and shall become effective
retroactively to a date immediately following the close of
business on the record date for the determination of
stockholders entitled to receive such distribution.
(iv) In the case the Company at any time or from
time to time shall take any action affecting its Common Stock
(it being understood that the issuance or sale of shares of
Common Stock (or securities convertible into or exchangeable
for shares of Common Stock, or any options, warrants or other
rights to acquire shares of Common Stock) to any Person at a
price per share less than the Conversion Price then in effect
shall not be deemed such an action), other than an action
described in any of Section 8(c)(i) through Section 8(c)(iii),
inclusive, or Section 8(g), then the Conversion Price shall be
adjusted in such manner and at such time as the Board of
Directors of the Company in good faith determines to be
equitable in the circumstances (such determination to be
evidenced in a resolution, a certified copy of which shall be
mailed to the holders of the Preferred Stock).
(v) Notwithstanding anything herein to the
contrary, no adjustment under this Section 8(c) need be made
to the Conversion Price unless such adjustment would require
an increase or decrease of at least 1% of the Conversion Price
then in effect. Any lesser adjustment shall be carried forward
and shall be made at the time of and together with the next
subsequent adjustment, if any, which, together with any
adjustment or adjustments so carried forward, shall amount to
an increase or decrease of at least 1% of such Conversion
Price.
(vi) The Company reserves the right to make such
reductions in the Conversion Price in addition to those
required in the foregoing provisions as it considers advisable
in order that any event treated for Federal income tax
purposes as a dividend of stock or stock rights will not be
taxable to the recipients. In the event the Company elects to
make such a reduction in the Conversion Price, the Company
will comply with the requirements of Rule 14e-1 under the
Exchange Act, and any other securities laws and regulations
thereunder if and to the extent that such laws and regulations
are applicable in connection with the reduction of the
Conversion Price.
(d) If the Company shall take a record of the holders of
its Common Stock for the purpose of entitling them to receive a
dividend or other distribution, and shall thereafter (and before the
dividend or distribution has been paid or delivered to stockholders)
legally abandon its plan to pay or deliver such dividend or
distribution, then thereafter no adjustment in the Conversion Price
then in effect shall be required by reason of the taking of such
record.
(e) Upon any increase or decrease in the Conversion
Price, then, and in each such case, the Company promptly shall deliver
to each holder of Preferred Stock a certificate signed by an authorized
officer of the Company, setting forth in reasonable detail the event
requiring the adjustment and the method by which such adjustment was
16
calculated and specifying the increased or decreased Conversion Price
then in effect following such adjustment.
(f) No fractional shares or securities representing
fractional shares of Common Stock shall be issued upon the conversion
of any shares of Preferred Stock, whether voluntary or mandatory. If
more than one share of Preferred Stock shall be surrendered for
conversion at one time by the same holder, the number of full shares of
Common Stock issuable upon conversion thereof shall be computed on the
basis of the aggregate Liquidation Preference of the shares of
Preferred Stock so surrendered. If the conversion of any share or
shares of Preferred Stock results in a fraction, an amount equal to
such fraction multiplied by the last reported sale price of the Common
Stock on the NYSE (or on such other national securities exchange or
automated quotation system on which the Common Stock is then listed for
trading or authorized for quotation or, if the Common Stock is not then
so listed or authorized for quotation, an amount determined in good
faith by the Board of Directors to be the fair value of the Common
Stock) at the close of business on the trading day next preceding the
day of conversion shall be paid to such holder in cash by the Company.
(g) In the event of any reclassification of outstanding
shares of Common Stock (other than a change in par value, or from par
value to no par value, or from no par value to par value), or in the
event of any consolidation or merger of the Company with or into
another Person or any merger of another Person with or into the Company
(other than a consolidation or merger in which the Company is the
resulting or surviving Person and which does not result in any
reclassification or change of outstanding Common Stock), or in the
event of any sale or other disposition to another Person of all or
substantially all of the assets of the Company (computed on a
consolidated basis) (any of the foregoing, a "TRANSACTION"), each share
of Preferred Stock then outstanding shall, without the consent of any
holder of Preferred Stock, become convertible at any time, at the
option of the holder thereof, only into the kind and amount of
securities (of the Company or another issuer), cash and other property
receivable upon such Transaction by a holder of the number of shares of
Common Stock into which such shares of Preferred Stock could have been
converted immediately prior to such Transaction, after giving effect to
any adjustment event. The provisions of this Section 8(g) and any
equivalent thereof in any such securities similarly shall apply to
successive Transactions. The provisions of this Section 8(g) shall be
the sole right of holders of Preferred Stock in connection with any
Transaction and such holders shall have no separate vote thereon.
(h) The Company shall at all times reserve and keep
available for issuance upon the conversion of the Preferred Stock such
number of its authorized but unissued shares of Common Stock as will
from time to time be sufficient to permit the conversion of all
outstanding shares of Preferred Stock, and shall take all action
required to increase the authorized number of shares of Common Stock if
at any time there shall be insufficient unissued shares of Common Stock
to permit such reservation or to permit the conversion of all
outstanding shares of Preferred Stock.
(i) The issuance or delivery of certificates for Common
Stock upon the conversion of shares of Preferred Stock shall be made
without charge to the converting
17
holder of shares of Preferred Stock for such certificates or for any
tax in respect of the issuance or delivery of such certificates or the
securities represented thereby, and such certificates shall be issued
or delivered in the respective names of, or in such names as may be
directed by, the holders of the shares of Preferred Stock converted;
provided, however, that the Company shall not be required to pay any
tax which may be payable in respect of any transfer involved in the
issuance and delivery of any such certificate in a name other than that
of the holder of the shares of Preferred Stock converted, and the
Company shall not be required to issue or deliver such certificate
unless or until the Person or Persons requesting the issuance or
delivery thereof shall have paid to the Company the amount of such tax
or shall have established to the reasonable satisfaction of the Company
that such tax has been paid.
9. Mandatory Conversion.
(a) At any time on or after September 30, 2005, the
Company shall have the right, at its option, to cause the Preferred
Stock, in whole but not in part, to be automatically converted into
that number of whole shares of Common Stock for each share of Preferred
Stock equal to the quotient of (i) the Liquidation Preference divided
by (ii) the Conversion Price then in effect, with any resulting
fractional shares of Common Stock to be settled in accordance with
Section 8(f). The Company may exercise its right to cause a mandatory
conversion pursuant to this Section 9(a) only if the closing price of
the Common Stock equals or exceeds 140% of the Conversion Price then in
effect for at least 20 trading days in any consecutive 30-day trading
period on the NYSE (or such other national securities exchange or
automated quotation system on which the Common Stock is then listed or
authorized for quotation), including the last trading day of such
30-day period, ending on the trading day prior to the Company's
issuance of a press release announcing the mandatory conversion as
described in Section 9(b).
(b) To exercise the mandatory conversion right described
in Section 9(a), the Company must issue a press release for publication
on the Dow Jones News Service prior to the opening of business on the
first trading day following any date on which the conditions described
in Section 9(a) are met, announcing such a mandatory conversion. The
Company shall also give notice by mail or by publication (with
subsequent prompt notice by mail) to the holders of Preferred Stock
(not more than four Business Days after the date of the press release)
of the mandatory conversion announcing the Company's intention to
convert the Preferred Stock. The conversion date will be a date
selected by the Company (the "MANDATORY CONVERSION DATE") and will be
no more than five days after the date on which the Company issues the
press release described in this Section 9(b).
(c) In addition to any information required by applicable
law or regulation, the press release and notice of a mandatory
conversion described in Section 9(b) shall state, as appropriate: (i)
the Mandatory Conversion Date; (ii) the number of shares of Common
Stock to be issued upon conversion of each share of Preferred Stock;
(iii) the number of shares of Preferred Stock to be converted; and (iv)
that dividends on the Preferred Stock to be converted will cease to
accrue on the Mandatory Conversion Date.
18
(d) On and after the Mandatory Conversion Date, dividends
will cease to accrue on the Preferred Stock called for a mandatory
conversion pursuant to Section 9(a) and all rights of holders of such
Preferred Stock will terminate except for the right to receive the
whole shares of Common Stock issuable upon conversion thereof and cash,
in lieu of any fractional shares of Common Stock in accordance with
Section 8(f). The dividend payment with respect to the Preferred Stock
called for a mandatory conversion pursuant to Section 9(a) on a date
during the period between the close of business on any Dividend Record
Date to the close of business on the corresponding Dividend Payment
Date will be payable on such Dividend Payment Date to the record holder
of such share on such Dividend Record Date if such share has been
converted after such Dividend Record Date and prior to such Dividend
Payment Date. Except as provided in the immediately preceding sentence
with respect to a mandatory conversion pursuant to Section 9(a), no
payment or adjustment will be made upon conversion of Preferred Stock
for Accrued Dividends or for dividends with respect to the Common Stock
issued upon such conversion.
(e) The Company may not authorize, issue a press release
or give notice of any mandatory conversion pursuant to Section 9(a)
unless, prior to giving the conversion notice, all Accumulated
Dividends on the Preferred Stock for periods ended prior to the date of
such conversion notice shall have been paid in cash.
(f) In addition to the mandatory conversion right
described in Section 9(a), if there are less than 250,000 shares of
Preferred Stock outstanding, the Company shall have the right, at any
time on or after September 30, 2007, at its option, to cause the
Preferred Stock to be automatically converted into that number of whole
shares of Common Stock equal to the quotient of (i) the Liquidation
Preference divided by (ii) the lesser of (A) the Conversion Price then
in effect and (B) the Market Value for the period ending on the second
trading day immediately prior to the Mandatory Conversion Date, with
any resulting fractional shares of Common Stock to be settled in cash
in accordance with Section 8(f). The provisions of clauses (b), (c),
(d) and (e) of this Section 9 shall apply to any mandatory conversion
pursuant to this clause (f); provided that (i) the Mandatory Conversion
Date described in Section 9(b) shall not be less than 15 days nor more
than 30 days after the date on which the Company issues a press release
pursuant to Section 9(b) announcing such mandatory conversion and (ii)
the press release and notice of mandatory conversion described in
Section 9(c) will not state the number of shares of Common Stock to be
issued upon conversion of each share of Preferred Stock.
10. Consolidation, Merger and Sale of Assets.
(a) The Company, without the consent of the holders of
any of the outstanding Preferred Stock, may consolidate with or merge
into any other Person or convey, transfer or lease all or substantially
all its assets to any Person or may permit any Person to consolidate
with or merge into, or transfer or lease all or substantially all its
properties to, the Company; provided, however, that (a) the successor,
transferee or lessee is organized under the laws of the United States
or any political subdivision thereof; (b) the shares of Preferred Stock
will become shares of such successor, transferee or lessee, having in
respect of such successor, transferee or lessee the same powers,
preferences and
19
relative participating, optional or other special rights and the
qualification, limitations or restrictions thereon, the Preferred Stock
had immediately prior to such transaction; and (c) the Company delivers
to the Transfer Agent an Officers' Certificate and an Opinion of
Counsel stating that such transaction complies with this Certificate of
Designation.
(b) Upon any consolidation by the Company with, or merger
by the Company into, any other person or any conveyance, transfer or
lease of all or substantially all the assets of the Company as
described in Section 10(a), the successor resulting from such
consolidation or into which the Company is merged or the transferee or
lessee to which such conveyance, transfer or lease is made, will
succeed to, and be substituted for, and may exercise every right and
power of, the Company under the shares of Preferred Stock, and
thereafter, except in the case of a lease, the predecessor (if still in
existence) will be released from its obligations and covenants with
respect to the Preferred Stock.
11. SEC Reports.
Whether or not the Company is required to file reports with the
Commission, if any shares of Preferred Stock are outstanding, the Company shall
file with the Commission all such reports and other information as it would be
required to file with the Commission by Section 13(a) or 15(d) under the
Exchange Act. The Company shall supply each holder of Preferred Stock, upon
request, without cost to such holder, copies of such reports or other
information.
12. Transfer Restrictions. The shares of Preferred Stock have not
been registered under the Securities Act and, accordingly, may not be offered,
sold, pledged or otherwise transferred except (1) to a Person whom the seller
reasonably believes is a qualified institutional buyer within the meaning of
Rule 144A under the Securities Act purchasing for its own account or for the
account of a qualified institutional buyer in a transaction meeting the
requirements of Rule 144A, (2) in a transaction meeting the requirements of Rule
144 under the Securities Act, (3) in accordance with another exemption from the
registration requirements of the Securities Act (and based upon opinion of
counsel acceptable to the Company), (4) to the Company or any of its
subsidiaries, or (5) pursuant to an effective registration statement under the
Securities Act, and in each case, in accordance with all applicable securities
laws of any State of the United States. The Transfer Agent shall refuse to
register the transfer of any shares of Preferred Stock that violates this
Section 12.
13. Other Provisions.
(a) With respect to any notice to a holder of shares of
Preferred Stock required to be provided hereunder, neither failure to
mail such notice, nor any defect therein or in the mailing thereof, to
any particular holder shall affect the sufficiency of the notice or the
validity of the proceedings referred to in such notice with respect to
the other holders or affect the legality or validity of any
distribution, rights, warrant, reclassification, consolidation, merger,
conveyance, transfer, dissolution, liquidation or winding-up, or the
vote upon any such action. Any notice which was mailed in the manner
herein provided shall be conclusively presumed to have been duly given
whether or not the holder receives the notice.
20
(b) Shares of Preferred Stock issued and reacquired will
be retired and canceled promptly after reacquisition thereof and, upon
compliance with the applicable requirements of Delaware law, have the
status of authorized but unissued shares of preferred stock of the
Company undesignated as to series and may with any and all other
authorized but unissued shares of preferred stock of the Company be
designated or redesignated and issued or reissued, as the case may be,
as part of any series of preferred stock of the Company, except that
any issuance or reissuance of shares of Preferred Stock must be in
compliance with this Certificate of Designation.
(c) The shares of Preferred Stock shall be issuable only
in whole shares.
(d) All notice periods referred to herein shall commence
on the date of the mailing of the applicable notice.
* * *
21
IN WITNESS WHEREOF, the Company has caused this certificate to be
signed and attested this 17th day of September, 2003.
RANGE RESOURCES CORPORATION
By: /s/ JOHN H. PINKERTON
----------------------------------------
John H. Pinkerton
President and Chief Executive Officer
EXHIBIT A
NOTICE OF CONVERSION
(To be Executed by the Holder
in order to Convert the Preferred Stock)
The undersigned hereby irrevocably elects to convert (the "CONVERSION") shares
of 5.90% Cumulative Convertible Preferred Stock (the "PREFERRED STOCK"),
represented by stock certificate No(s) ________________. (the "PREFERRED STOCK
CERTIFICATES") into shares of common stock ("COMMON STOCK") of Range Resources
Corporation (the "COMPANY") according to the conditions of the Certificate of
Designation of the Preferred Stock (the "CERTIFICATE OF DESIGNATION"), as of the
date written below. If shares are to be issued in the name of a person other
than the undersigned, the undersigned will pay all transfer taxes payable with
respect thereto and is delivering herewith the Preferred Stock Certificates. No
fee will be charged to the holder for any conversion, except for transfer taxes,
if any. A copy of each Preferred Stock Certificate is attached hereto (or
evidence of loss, theft or destruction thereof).
The undersigned represents and warrants that all offers and sales by the
undersigned of the shares of Common Stock issuable to the undersigned upon
conversion of the Preferred Stock shall be made pursuant to registration of the
Common Stock under the Securities Act of 1933 (the "ACT"), or pursuant to any
exemption from registration under the Act.
Capitalized terms used but not defined herein shall have the meanings ascribed
thereto in or pursuant to the Certificate of Designation.
Date of Conversion: _________________________________________
Applicable Conversion Price: ________________________________
Number of shares of Preferred Stock to be Converted:_________
Number of shares of Common Stock to be Issued:(*)____________
Signature:___________________________________________________
Name: _______________________________________________________
Address:(**)_________________________________________________
Fax No.:_____________________________________________________
- ------------
* The Company is not required to issue shares of Common Stock until the original
Preferred Stock Certificate(s) (or evidence of loss, theft or destruction
thereof) to be converted are received by the Company or its Transfer Agent. The
Company shall issue and deliver shares of Common Stock to an overnight courier
not later than three business days following receipt of the original Preferred
Stock Certificate(s) to be converted.
** Address where shares of Common Stock and any other payments or certificates
shall be sent by the Company.
A-1
EXHIBIT B
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF PREFERRED STOCK
Re: 5.90% Cumulative Convertible Preferred Stock (the "PREFERRED STOCK") of
Range Resources Corporation (the "COMPANY")
This Certificate relates to ____ shares of Preferred Stock held in |-|
*/ book-entry or |-| */ definitive form by _______________ (the "TRANSFEROR").
The Transferor:
[-] has requested the Transfer Agent by written order to deliver in
exchange for its beneficial interest in the Preferred Stock held by the
Depository shares of Preferred Stock in definitive, registered form equal to its
beneficial interest in such Preferred Stock (or the portion thereof indicated
above); or
[-] has requested the Transfer Agent by written order to exchange or
register the transfer of Preferred Stock.
In connection with such request and in respect of such Preferred Stock,
the Transferor does hereby certify that the Transferor is familiar with the
Certificate of Designation relating to the above-captioned Preferred Stock and
that the transfer of this Preferred Stock does not require registration under
the Securities Act of 1933 (the "SECURITIES ACT") because */:
[-] Such Preferred Stock is being acquired for the Transferor's own
account without transfer.
[-] Such Preferred Stock is being transferred to the Company.
[-] Such Preferred Stock is being transferred to a qualified
institutional buyer (as defined in Rule 144A under the Securities Act), in
reliance on Rule 144A.
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* /Please check applicable box.
[-] Such Preferred Stock is being transferred in reliance on and in
compliance with another exemption from the registration requirements of the
Securities Act (and based on an Opinion of Counsel if the Company so requests).
[INSERT NAME OF TRANSFEROR]
by ____________________________________
Date:_________________
B-1