EXHIBIT 99.4
CERTIFICATE OF DESIGNATIONS
OF
SERIES D SENIOR CONVERTIBLE PARTICIPATING
PREFERRED STOCK
OF
URS CORPORATION
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Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
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THE UNDERSIGNED, being the President of URS Corporation, a Delaware
corporation (the "Corporation"), does hereby certify that pursuant to the
authority contained in Article Fourth of its Certificate of Incorporation, as
amended (the "Certificate of Incorporation"), and in accordance with the
provisions of Section 151(g) of the General Corporation Law of the State of
Delaware, the Board of Directors of the Corporation has adopted the following
resolution, which resolution remains in full force and effect on the date
hereof:
RESOLVED, that there is hereby established a series of authorized
preferred stock, having a par value of $.01 per share, which series shall be
designated as "Series D Senior Convertible Participating Preferred Stock" (the
"Bridge Preferred Stock"), consisting of 100,000 shares and having the following
voting powers, preferences and relative, participating, optional and other
special rights, and qualifications, limitations and restrictions thereof:
1. Certain Definitions.
Unless the context otherwise requires, the terms defined in this
paragraph 1 shall have, for all purposes of this resolution, the meanings herein
specified (with terms defined in the singular having comparable meanings when
used in the plural).
"Affiliate" means (i) with respect to any Person, any other Person
that directly or indirectly controls, is controlled by, or is under common
control with such Person, whether through the ownership of equity interests, by
contract or otherwise; and (ii) with respect to an individual, in addition to
any Person specified in clause (i), the spouse, any parent or any child of such
individual and any trust for the benefit of such individual's spouse, parent or
child.
"Beneficial Owner" has the meaning assigned to such term in Rule
13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the
beneficial ownership of any particular "person" (as that term is used in Section
13(d)(3) of the Exchange Act), such "person" shall be deemed to have beneficial
ownership of all securities that such "person" has the right to
acquire by conversion or exercise of other securities, whether such right is
currently exercisable or is exercisable only upon the occurrence of a subsequent
condition. The terms "Beneficially Owns" and "Beneficially Owned" shall have a
corresponding meaning.
"Board of Directors" means the Board of Directors of the
Corporation.
"Bridge Preferred Stock" has the meaning set forth in paragraph 2
below.
"Business Day" means a day other than a Saturday or Sunday or a day
on which commercial banks in the City of New York are authorized or obligated by
law or executive order to close.
"Change of Control" means the occurrence of any of the following:
(1) the direct or indirect sale, transfer, conveyance or
other disposition (other than by way of merger, consolidation or
transfer of the Corporation's Voting Stock), in one or a series of
related transactions, of all or substantially all of the properties
or assets of the Corporation and its Subsidiaries, taken as a whole,
to any "person" (as that term is used in Section 13(d)(3) of the
Exchange Act) other than the Corporation or a wholly-owned
Subsidiary of the Corporation;
(2) the consummation of any transaction or series of related
transactions (including, without limitation, any merger or
consolidation) the result of which is that any "person" (as defined
above), other than the holders of the Bridge Preferred Stock,
becomes the Beneficial Owner, directly or indirectly, of more than
35% of the Voting Stock of the Corporation, measured by voting power
rather than number of shares;
(3) a "change of control" or other similar event shall occur
under any issue of Indebtedness with an aggregate principal amount
in excess of $50,000,000 of the Corporation or its Subsidiaries;
(4) during any period of twelve (12) consecutive months
after the Initial Issue Date, the individuals who at the beginning
of any such 12-month period constituted the Board of Directors (the
"Incumbent Board") cease for any reason to constitute at least a
majority of such Board; provided that (i) any individual becoming a
director whose election, or nomination for election by the
Corporation's stockholders, was approved by a vote of the
stockholders having the right to designate such director (including,
without limitation, the exercise by the holders of Bridge Preferred
Stock of their right to elect directors) and (ii) any director whose
election to the Board of Directors or whose nomination for election
by the stockholders of the Corporation was approved by majority vote
of the Board of Directors, shall, in each such case, be considered
as though such individual were a member of the Incumbent Board, but
excluding, as a member of the Incumbent Board, any such individual
whose initial assumption of office is in connection with an actual
or threatened election contest relating to the election of
2.
the directors of the Corporation (as such terms are used in Rule
14a-11 of Regulation 14A promulgated under the Exchange Act) and
further excluding any person who is an affiliate or associate (as
those terms are defined in the General Rules and Regulations under
the Exchange Act) of any Person (other than Blum Capital Partners,
L.P. and its Affiliates) having or proposing to acquire beneficial
ownership of twenty-five percent (25%) or more of the Voting Stock
of the Corporation, measured by voting power and not by number of
shares; or
(5) the approval by the stockholders of the Corporation of a
reorganization, merger or consolidation, in each case after which
the individuals and entities who were the respective Beneficial
Owners of the Voting Stock immediately prior to such reorganization,
merger or consolidation do not, following such reorganization,
merger or consolidation, Beneficially Own, directly or indirectly,
more than fifty percent (50%) of the Voting Stock, measured by
voting power rather than number of shares, of the corporation
surviving or resulting from such reorganization, merger or
consolidation;
provided that the occurrence of any event identified in clauses (1) through (5)
above that would otherwise be treated as a Change of Control shall not
constitute a Change of Control hereunder if (i) the Board of Directors, by vote
duly taken, and (ii) the holders of a majority of the outstanding shares of
Bridge Preferred Stock by written consent shall so determine.
"Commission" means the United States Securities and Exchange
Commission.
"Common Equity" means all shares now or hereafter authorized of any
class of common stock of the Corporation, including the Common Stock, and any
other stock of the Corporation, howsoever designated, authorized after the
Initial Issue Date, which has the right (subject always to prior rights of any
class or series of preferred stock) to participate in the distribution of the
assets and earnings of the Corporation without limit as to per share amount.
"Common Stock" means the common stock, par value $0.01 per share, of
the Corporation.
"Conversion Date" has the meaning set forth in paragraph 5(c) below.
"Conversion Price" shall initially mean $22.1835, subject to
adjustment from time to time pursuant to the terms of paragraph 5 below.
"Corporation" has the meaning set forth in the recitals above.
"Current Market Price" means, for a share of Common Stock on any
date, the average of Quoted Prices for ten (10) consecutive Trading Days
commencing fifteen (15) Trading Days before the date in question.
"Delivery Date" has the meaning set forth in paragraph 5(c) below.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
3.
"Indebtedness" of any Person means (a) all liabilities and
obligations of such Person, contingent or otherwise (i) in respect of borrowed
money, (ii) evidenced by bonds, notes, debentures or similar instruments, (iii)
representing the balance deferred and unpaid of the purchase price of any
property or services, except those incurred in the ordinary course of business
that would constitute ordinarily a trade payable to trade creditors, (iv)
evidenced by bankers' acceptances, (v) for payment of money relating to leases
that are required to be capitalized for financial reporting purposes under
generally accepted accounting principles or (vi) evidenced by a letter of credit
or reimbursement obligation of such Person with respect to any letter of credit,
and (b) all liabilities and obligations of others of the kind described in the
preceding clause (a) that such Person has guaranteed or that is otherwise its
legal liability or which are secured by the assets or property of such Person.
"Initial Conversion Date" means the earlier of (i) the date which is
180 calendar days after the Initial Issue Date and (ii) the date on which the
Corporation effects any Change of Control.
"Initial Issue Date" means the date that shares of Bridge Preferred
Stock are first issued by the Corporation.
"Junior Stock" means Common Equity, any other class or series of
capital stock of the Corporation (other than the Permanent Preferred Stock)
outstanding as of the Initial Issue Date, and any class or series of stock of
the Corporation which is not entitled to receive any assets upon liquidation,
dissolution or winding up of the affairs of the Corporation until the Bridge
Preferred Stock and any other Parity Stock shall have received the entire amount
to which such stock is entitled upon such liquidation, dissolution or winding
up.
"Liquidation Event" means any voluntary or involuntary liquidation,
dissolution or other winding up of affairs of the Corporation (in connection
with the bankruptcy or insolvency of the Corporation or otherwise), and, with
respect to any shares of Bridge Preferred Stock the holder of which has so
elected in accordance with paragraph 4(e) below, any Optional Liquidation Event.
"Liquidation Preference" shall mean (i) $467.3343 per share of
Bridge Preferred Stock, plus (ii) the aggregate amount of all unpaid dividends
on the Bridge Preferred Stock pursuant to paragraph 3 below.
"Optional Liquidation Event" has the meaning set forth in paragraph
4(f) below.
"Parity Stock" means the Permanent Preferred Stock and any other
class or series of stock of the Corporation authorized after the Initial Issue
Date which is entitled to receive assets upon liquidation, dissolution or
winding up of the affairs of the Corporation on a parity with the Bridge
Preferred Stock without preference or priority of one over the other.
"Permanent Preferred Stock" means the Series E Senior Cumulative
Convertible Participating Preferred Stock, $.01 par value per share, of the
Corporation.
4.
"Permanent Preferred Stock Certificate of Designations" means the
Certificate of Designations of the Series E Senior Cumulative Convertible
Participating Preferred Stock, $.01 par value per share, of the Corporation.
"Person" means any individual, corporation, association,
partnership, joint venture, limited liability company, trust, estate or other
entity.
"Quoted Price" means, with respect to Common Stock, (i) the last
reported sales price of the Common Stock on the New York Stock Exchange or (ii)
if not listed on the New York Stock Exchange, the last reported sales price of
the Common Stock on such other principal exchange on which the Common Stock is
listed or admitted for trading or (iii) if not listed or admitted for trading on
a securities exchange, the last reported sales price for Common Stock as
reported by the National Association of Securities Dealers, Inc. Automatic
Quotations Systems - National Market System, or (iv) if not so reported or
listed or admitted for trading, the last reported bid price of the applicable
security in the over-the-counter market. In the event that the Quoted Price
cannot be determined as aforesaid, the Board of Directors of the Corporation
shall determine the Quoted Price on the basis of such quotations as it in good
faith considers appropriate. Such determination may be challenged in good faith
by holders of a majority of the shares of Bridge Preferred Stock then
outstanding, and any dispute shall be resolved by the determination of an
investment banking firm of recognized national standing selected by the
Corporation and acceptable to such holders of a majority of the shares of Bridge
Preferred Stock, which determination shall be made in good faith at the cost of
the party against whom such determination is made, and shall be conclusive
absent manifest error.
"Required Stockholder Approval" means the affirmative vote of a
majority of shares of the Common Stock represented in person or by proxy at a
meeting of the stockholders of the Corporation in favor of approval of the
Stockholder Proposal, provided that the total vote cast on the Stockholder
Proposal represents over 50% in interest of all securities entitled to vote on
the Stockholder Proposal.
"Significant Subsidiary" means any Subsidiary of the Corporation
that would be a "significant subsidiary" as defined in Regulation S-X
promulgated by the Securities and Exchange Commission.
"Stockholder Proposal" means a proposal that the holders of Common
Stock approve the issuance of the shares of Common Stock issuable upon
conversion of the Bridge Preferred Shares pursuant to paragraph 5(b) below.
"Subsidiary" means, with respect to any specified Person:
(1) any corporation, association or other business entity of
which more than 50% of the total voting power of shares of Voting
Stock entitled (without regard to the occurrence of any contingency)
to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a
combination thereof); and
5.
(2) any partnership (a) the sole general partner or the
managing general partner of which is such Person or a Subsidiary of
such Person or (b) the only general partners of which are such
Person or one or more Subsidiaries of such Person (or any
combination thereof).
"Trading Day" means, with respect to any security, any day on which
any market in which the applicable security is then traded and in which a quoted
price may be ascertained is open for business.
"Voting Stock" as of any date, and with respect to any corporation,
means the capital stock of that corporation that is at the time entitled to vote
in the election of the board of directors of that Corporation.
2. Number of Shares and Designations. One hundred thousand (100,000)
shares of the preferred stock, $.01 par value per share, of the Corporation are
hereby constituted as a series of the preferred stock designated as Series D
Senior Convertible Participating Preferred Stock (the "Bridge Preferred Stock").
3. Dividends. In the event that the Corporation declares and/or pays
any dividend or other distribution on the Common Stock (other than a dividend
payable solely in shares of Common Stock), the Corporation shall, at the time of
such declaration and payment, declare and pay a dividend or other distribution
on the Bridge Preferred Stock consisting of the dividend or distribution that
would have been payable on the shares of Common Stock issuable upon conversion
of the Bridge Preferred Stock (assuming the occurrence of the Required
Stockholder Approval) if the Bridge Preferred Stock had been converted into
Common Stock immediately prior to the record date for such dividend or
distribution, or, if no such record was taken, the date as of which the record
holders of Common Stock entitled to such dividend or distribution were
determined. Any such dividend or distribution declared, or required to be
declared or to be paid, on the Bridge Preferred Stock shall be deemed accrued on
the Bridge Preferred Stock for all purposes of this Certificate of Designations
and shall remain an accrued dividend on the Bridge Preferred Stock for all
purposes of this Certificate of Designations until paid.
4. Distributions Upon Liquidation, Dissolution or Winding Up.
(a) In the event of any Liquidation Event, (i) the Bridge
Preferred Stock shall rank prior to all other classes and series of the
Corporation's capital stock authorized or outstanding on the Initial Issue Date
and (ii) before any payment or distribution of the assets of the Corporation
(whether capital or surplus), or any other consideration in connection with such
Liquidation Event, shall be made to or set apart for the holders of Junior
Stock, the holders of Bridge Preferred Stock shall be entitled to be paid out of
the assets of the Corporation in cash or property at its fair market value as
reasonably determined in good faith by the Board of Directors of the Corporation
an amount per share equal to the Liquidation Preference.
(b) If, upon any such Liquidation Event, the assets of the
Corporation shall be insufficient to permit the payment in full of the
Liquidation Preference per share, as provided in paragraph 4(a) above, and the
full liquidating payments on all Parity Stock, then the assets of the
6.
Corporation or the proceeds thereof shall be ratably distributed among the
holders of Bridge Preferred Stock and of any Parity Stock in proportion to the
full amounts to which they would otherwise be entitled if all amounts payable
thereon were paid in full.
(c) After the payment of the full Liquidation Preference of the
Bridge Preferred as set forth in paragraph 4(a) above, the holders of the Common
Stock shall be entitled to be paid out of the assets of the Corporation an
amount per share of Common Stock equal to (i) the Liquidation Preference paid on
behalf of a share of Bridge Preferred pursuant to paragraph 4(a) divided by (ii)
the number of shares of Common Stock issuable upon conversion of a share of
Bridge Preferred. If, upon any such liquidation, distribution or winding up, the
assets of the Company shall be insufficient to make payment in full to all
holders of Common Stock of the amount set forth in this paragraph 4(c), then
such assets shall be distributed among the holders of Common Stock at the time
outstanding, ratably in proportion to the full amounts to which they would
otherwise be respectively entitled.
(d) In the event of any voluntary or involuntary liquidation,
dissolution or other winding up of the affairs of the Corporation upon
completion of the distributions and payments required by paragraphs 4(a) and (c)
and any other distributions and payments that may be required with respect to
any other series of preferred stock that may be authorized after the Initial
Issue Date, the remaining assets of the Corporation shall be distributed among
the holders of the then outstanding shares of Common Stock and Bridge Preferred
Stock, pro rata based on the number of shares of Common Stock held by each such
holder. For the purpose of determining the number of shares of Common Stock held
by each holder of Bridge Preferred Stock, such holders shall be deemed to hold
the number of shares of Common Stock then issuable (assuming the occurrence of
the Required Stockholder Approval) upon conversion in full of all shares of
Bridge Preferred Stock held by such holder.
(e) Written notice of any Liquidation Event, stating the payment
date or dates when and the place where the amounts distributable in such
circumstances shall be payable, shall be given by first class mail, postage
prepaid, not less than 30 days prior to any payment date stated therein, to the
holders of record of the shares of Bridge Preferred Stock at their address as
the same shall appear in the records of the Corporation.
(f) Notwithstanding anything to the contrary in this Certificate
of Designations, each holder of Bridge Preferred Stock will be entitled, in its
sole discretion, to elect to treat as a Liquidation Event any of the following
transactions: any sale or disposition of the Corporation to a third party not an
Affiliate of the Corporation, whether by merger, consolidation, sale of all or
substantially all of the Corporation's assets or sale of capital stock, provided
that the stockholders of the Corporation immediately prior to such sale or
disposition (other than the non-Affiliate third party) do not after such sale or
disposition hold at least 50% of the Common Stock of the Corporation (or the
successor or transferee entity, as the case may be) (any such transaction, an
"Optional Liquidation Event"). Notice shall be sent by or on behalf of the
Corporation not more than sixty (60) days nor less than thirty (30) days prior
to any Optional Liquidation Event, by first class mail, postage prepaid, to all
holders of record of the Bridge Preferred Stock at their respective last
addresses as they shall appear on the books of the Corporation (i) describing in
reasonable detail the contemplated Optional Liquidation Event, including without
limitation the consideration to be
7.
paid in connection with such Optional Liquidation Event to the Corporation
and/or its stockholders, (ii) stating that such holder is entitled to treat the
Optional Liquidation Event as a Liquidation Event, (iii) stating the expected
date of the Optional Liquidation Event, (iv) stating the amount that would be
payable on each share of Bridge Preferred Stock in a Liquidation Event on such
date, and (v) stating the location in the United States where the holder must
send notice of its decision to elect to treat the Optional Liquidation Event as
a Liquidation Event. In order for the Optional Liquidation Event to be treated
as a Liquidation Event with respect to the Bridge Preferred Stock held by any
holder, such holder must, prior to such Optional Liquidation Event, notify the
Corporation at the location indicated in the Corporation's notice that such
holder elects to have the Corporation treat the Optional Liquidation Event as a
Liquidation Event with respect to its shares of Bridge Preferred Stock and the
number of shares such holder wishes to have so treated. If any holder delivers
to the Corporation such notice of such holder's election to have the Optional
Liquidation Event treated as a Liquidation Event, such Optional Liquidation
Event will be treated as a Liquidation Event with respect to all shares of
Bridge Preferred Stock with respect to which such election was made, and,
notwithstanding anything to the contrary in this Certificate of Designations,
the Corporation will make distributions on such shares of Bridge Preferred Stock
in accordance with paragraphs 4(a) and, if applicable, 4(b) and 4(d) above.
5. Conversion Rights.
(a) If the Required Stockholder Approval has not been obtained
prior to the Initial Conversion Date, then, from and after the Initial
Conversion Date and until such time as the Required Stockholder Approval is
obtained, at the election of the holders of at least a majority of the shares of
Bridge Preferred Stock then outstanding, each share of Bridge Preferred Stock
shall be converted, without any further action on the part of the Corporation or
any holder of Bridge Preferred Stock, into one (1) share of Permanent Preferred
Stock. Immediately following such conversion, the rights of the holders of
converted Bridge Preferred Stock shall cease and the persons entitled to receive
Permanent Preferred Stock upon the conversion of Bridge Preferred Stock shall be
treated for all purposes as having become the owners of such Permanent Preferred
Stock.
(b) Upon obtaining the Required Stockholder Approval, each share
of Bridge Preferred Stock not already converted pursuant to paragraph 5(a) shall
automatically be converted, without any further action on the part of the
Corporation or any holder of Bridge Preferred Stock, into a number of shares of
Common Stock equal to the Liquidation Preference divided by the Conversion
Price. Immediately following such conversion, the rights of the holders of
converted Bridge Preferred Stock shall cease and the persons entitled to receive
Common Stock upon the conversion of Bridge Preferred Stock shall be treated for
all purposes as having become the owners of such Common Stock.
(c) If the Bridge Preferred Stock is converted pursuant to
paragraph 5(a), such conversion shall be effective for all purposes on the date
the Corporation receives notice of such election and if the Bridge Preferred
Stock is converted automatically pursuant to paragraph 5(b), such conversion
shall be effective for all purposes on the date that the Required Stockholder
Approval is obtained (in either case, the "Conversion Date"). Following the
Conversion Date, the holder of certificates formerly evidencing shares of Bridge
Preferred Stock shall (i) surrender the certificate or certificates evidencing
the shares of Bridge Preferred Stock to be converted, duly
8.
endorsed at the principal office of the Corporation or transfer agent for the
Bridge Preferred Stock, if any, (ii) notify the Corporation in writing of the
name or names in which such holder wishes the certificate or certificates for
shares of Common Stock or Permanent Preferred Stock, as applicable, to be issued
and (iii) pay any transfer or similar tax if required (provided, however, that
no such payment shall be required if the Common Stock or Permanent Preferred
Stock, as applicable, issuable upon conversion is to be issued in the name of
the converting holder of Bridge Preferred Stock). In the case of lost or
destroyed certificates formerly evidencing ownership of shares of Bridge
Preferred Stock to be surrendered, the holder shall submit such proof of loss or
destruction. The date on which the holder satisfies the foregoing requirements
is referred to as the "Delivery Date." As soon as practicable after the Delivery
Date, the Corporation shall deliver or shall deliver through its transfer agent
a certificate for the number of full shares of Common Stock or Permanent
Preferred Stock, as applicable, issuable upon such conversion and a check for
any fractional share. Notwithstanding the foregoing, regardless of whether a
holder shall have surrendered such holder's certificates evidencing shares of
Bridge Preferred Stock and/or received in respect thereof certificates
evidencing shares of Common Stock or Permanent Preferred Stock, as applicable,
such holder shall from and after the Conversion Date be treated for all purposes
as a record holder of the number of shares of Common Stock or Permanent
Preferred Stock, as applicable, into which such holder's shares of Bridge
Preferred Stock shall have been converted until such time as record ownership is
transferred and the certificate held by such holder formerly representing
ownership of shares of Bridge Preferred Stock shall, until surrendered in
exchange for new certificates evidencing shares of Common Stock or Permanent
Preferred Stock as contemplated above, be deemed for all purposes to evidence
the shares of Common Stock or Permanent Preferred Stock, as applicable, issuable
upon conversion of the shares of Bridge Preferred Stock formerly held by such
holder. All shares of Common Stock or Permanent Preferred Stock, as applicable,
issuable upon conversion of the Bridge Preferred Stock shall be fully paid and
nonassessable. Holders of Common Stock issued upon conversion pursuant to
paragraph 5(b) shall not be entitled to receive any dividend payable to holders
of Common Stock as of any record time before the close of business on the
Conversion Date.
(d) The Corporation shall not issue a fractional share of Common
Stock upon conversion of Bridge Preferred Stock. Instead, the Corporation shall
deliver a check for an amount equal to the value of the fractional share. The
value of a fraction of a share is determined by multiplying the Current Market
Price of the Common Stock as of the Conversion Date by the fraction, rounded to
the nearest cent. If a holder of Bridge Preferred Stock converts more than one
share at a time the number of full shares of Common Stock issuable upon
conversion shall be based on the total number of all shares of Bridge Preferred
Stock converted.
(e) A holder delivering Bridge Preferred Stock for conversion will
not be required to pay any taxes or duties in respect of the issue or delivery
of Common Stock or Permanent Preferred Stock, as the case may be, on conversion
but will be required to pay any tax or duty that may be payable in respect of
any transfer involved in the issue or delivery of the shares of Common Stock or
Permanent Preferred Stock, as the case may be. Certificates representing shares
of Common Stock or Permanent Preferred Stock, as the case may be, will not be
issued or delivered unless all taxes and duties, if any, payable by the holder
have been paid.
9.
(f) The Corporation has reserved and shall continue to reserve out
of its authorized but unissued Common Stock or its Common Stock held in treasury
and its Permanent Preferred Stock enough shares of Common Stock and Permanent
Preferred Stock to permit the conversion of the Bridge Preferred Stock in full
into either Common Stock or Permanent Preferred Stock. All shares of Common
Stock and Permanent Preferred Stock issued upon conversion of Bridge Preferred
Stock shall be fully paid and nonassessable. The Corporation shall comply with
all securities laws regulating the offer and delivery of shares of Common Stock
and Permanent Preferred Stock upon conversion of Bridge Preferred Stock and will
list the shares of Common Stock on each national securities exchange on which
the Common Stock is listed.
(g) If the Corporation after the Initial Issue Date:
(i) pays a dividend or makes a distribution on its Common
Stock in shares of its Common Stock;
(ii) subdivides its outstanding shares of Common Stock into a
greater number of shares;
(iii) combines its outstanding shares of Common Stock into a
smaller number of shares; or
(iv) issues by reclassification of its Common Stock any
shares of its capital stock;
then the Conversion Price (as in effect immediately prior to such action) shall
proportionately be adjusted so that the holder of Bridge Preferred Stock
thereafter converted into Common Stock may receive for the same aggregate
Conversion Price the aggregate number and kind of shares of capital stock of the
Corporation that such holder would have owned immediately following such action
if such holder had converted Bridge Preferred Stock immediately prior to such
action (assuming the occurrence of the Required Stockholder Approval). The
adjustment shall become effective immediately after the record date, in the case
of a dividend or distribution, and immediately after the effective date of a
subdivision, combination or reclassification. Such adjustment shall be made
successively whenever any event listed above shall occur. If, after an
adjustment referred to in clauses (i) through (iv) above, a holder of Bridge
Preferred Stock upon conversion of such stock may receive shares of two or more
classes of capital stock of the Corporation, the Corporation shall determine
(subject to paragraph 5(m)) the allocation of the Conversion Price between the
classes of capital stock. After such allocation, the conversion rights and the
Conversion Price with respect to each class of capital stock shall thereafter be
subject to adjustment on terms comparable to those applicable to Common Stock in
this paragraph 5(g).
(h) In case of any consolidation, amalgamation, arrangement or
merger of the Corporation with or into another Person or any merger of another
Person with or into the Corporation (other than a transaction to which paragraph
5(g) applies), or in case of any sale or transfer of all or substantially all of
the assets of the Corporation, subject to paragraph 4(f) above, each share of
Bridge Preferred Stock then outstanding shall, without the consent of the holder
of any Bridge Preferred Stock, become convertible only into the kind and amount
of securities, cash and
10.
other property receivable upon such consolidation, merger, sale or transfer by a
holder of the number of shares of Common Stock (and other securities, if
applicable) into which such Bridge Preferred Stock was convertible immediately
prior thereto (assuming such holder of Common Stock (and other securities, if
applicable) failed to exercise any rights of election and that the Required
Stockholder Approval was obtained). Concurrently with the consummation of such
transaction, the corporation formed by or surviving any such consolidation or
merger if other than the Corporation, or the person to which such sale or
conveyance shall have been made, shall enter into a supplemental agreement so
providing and further providing for adjustments which shall be as equivalent as
may be practicable to the adjustments provided for in this paragraph.
(i) For purposes of any computation respecting consideration
received pursuant to a transaction described or contemplated by this paragraph
5, whenever this Certificate of Designations calls for the determination of
"fair market value," such fair market value shall be determined in good faith by
the Board of Directors as evidenced by a written resolution thereof, subject to
the provisions of paragraph 5(m) below.
(j) The Corporation shall take no action that would cause any
adjustment under this paragraph 5 that would reduce the Conversion Price below
the par value of the Common Stock.
(k) Whenever the Conversion Price is adjusted, the Corporation
shall promptly mail to holders of Bridge Preferred Stock, first class, postage
prepaid, a notice of the adjustment and a certificate from the Corporation's
independent public accountants briefly stating the facts requiring the
adjustment and the manner of computing it. Subject to paragraph 5(l) below, the
certificate shall be conclusive evidence that the adjustment is correct.
(l) At least ten (10) days before any Change of Control, the
Corporation shall mail to all holders of Bridge Preferred Stock a notice, first
class, postage prepaid, stating the proposed record or effective date, as the
case may be with respect to such Change of Control.
(m) Except as otherwise provided in this paragraph, any
determination that the Corporation or its Board of Directors must make pursuant
to this paragraph 5 shall be conclusive. Whenever the Corporation or its Board
of Directors shall be required to make a determination under this paragraph 5,
such determination shall be made in good faith and may be challenged in good
faith by the holders of a majority of the shares of Bridge Preferred Stock then
outstanding (with any shares held by the Corporation or any of its Affiliates
not being considered to be outstanding for purposes of this Certificate of
Designations), and any dispute shall be resolved, at the non-prevailing party's
expense, by an investment banking firm of recognized national standing selected
by the Corporation and reasonably acceptable to such holders of a majority of
the shares of Bridge Preferred Stock.
(n) All shares of Bridge Preferred Stock converted pursuant to
this paragraph 5 shall be retired and shall be restored to the status of
authorized and unissued shares of preferred stock, without designation as to
series and may thereafter be reissued as shares of any series of preferred stock
other than Bridge Preferred Stock.
11.
(o) The Corporation shall not avoid or seek to avoid the
observance or performance of any of the terms to be observed or performed
hereunder by the Corporation, but shall at all times in good faith assist in
carrying out all such action as may be reasonably necessary or appropriate in
order to protect the conversion rights of the holders of the Bridge Preferred
Stock against impairment.
6. Voting Rights.
In addition to any voting rights provided by law, the holders of
shares of Bridge Preferred Stock shall have the following voting rights:
(a) On any matter on which the holders of Bridge Preferred Stock
are entitled by law or pursuant to this Certificate of Designations to vote
separately as a class, each such holder shall be entitled to one vote for each
share held, and such matter shall be determined by a majority of the votes cast
unless the Delaware General Corporation Law or this Certificate of Designations
requires approval by a higher percentage. Such voting right of the holders of
the Bridge Preferred Stock may be exercised at any annual meeting of
stockholders, any special meeting of stockholders (including any special meeting
of holders of such series of stock), or by written consent of the minimum number
of shares required to take such action pursuant to Section 228 of the Delaware
General Corporation Law.
(b) During such time that the aggregate number of shares of Bridge
Preferred Stock outstanding is equal to at least twenty-five percent (25%) of
the shares of Bridge Preferred Stock outstanding on the Initial Issue Date
(after giving effect to the issuance of all shares of Bridge Preferred Stock
issued on the Initial Issue Date), the Corporation shall not, without the
affirmative vote or consent of the holders of at least a majority of the issued
and outstanding shares of Bridge Preferred Stock:
(i) amend, modify, alter, repeal or waive the
application of (including by way of merger, consolidation,
combination or otherwise) any provision of the Certificate of
Incorporation or by-laws of the Corporation or any of its
Subsidiaries in any manner that adversely affects the powers,
rights, preferences or privileges of the holders of the Bridge
Preferred Stock or the Permanent Preferred Stock, or enter into any
agreement or take any other corporate action (or permit any of its
Subsidiaries to enter into any agreement or take any corporate
action) which would in any way amend, modify alter, repeal or waive
the powers, rights, preferences or privileges of the Bridge
Preferred Stock or the Permanent Preferred Stock;
(ii) amend (including by way of merger, consolidation,
combination or otherwise) in any respect this Certificate of
Designations or the Permanent Preferred Certificate of Designations
or subdivide, combine or reclassify the Bridge Preferred Stock or
the Permanent Preferred Stock, other than changes in the name of the
issuing corporation as contemplated by paragraph 12;
12.
(iii) create, authorize or issue (including on
conversion or exchange of any convertible or exchangeable securities
or by reclassification) shares of any class or series of capital
stock of the Corporation other than (x) the issuance of shares of
Permanent Preferred Stock upon conversion of the Bridge Preferred
Stock and (y) the issuance of shares of Junior Stock;
(iv) permit any Subsidiary of the Corporation to
create, authorize or issue (including on conversion or exchange of
any convertible or exchangeable securities or by reclassification)
any class or series of capital stock of such Subsidiary;
(v) redeem, acquire, purchase, defease or otherwise
retire for value or make any other payment or distribution in
respect of any shares of capital stock of the Corporation or any
Subsidiaries of the Corporation, other than (a) any such redemption,
acquisition, purchase, retirement or other payment or distribution
in respect of the Bridge Preferred Stock, (b) any redemption,
acquisition, purchase, retirement or other payment or distribution
by any Subsidiary of the Corporation in respect of shares of capital
stock of such Subsidiary held by the Corporation or another
wholly-owned Subsidiary of the Corporation, (c) to the extent
permitted under the terms of the then outstanding Indebtedness of
the Corporation and its Subsidiaries, the repurchase from terminated
or retired employees of shares of Common Stock or options to
purchase Common Stock, in each case, issued under any stock purchase
or stock plans or other compensatory arrangements that are approved
by the Board of Directors, and (d) the cashless exercise of Options
and the surrender by holders of restricted shares of capital stock
of the Corporation in payment of any tax liabilities by such holders
pursuant to the Stock Plans;
(vi) take any action (or permit any Subsidiary of the
Corporation to take any action) that would cause a dividend or other
distribution to be received by the holders of Bridge Preferred Stock
or Permanent Preferred Stock for federal income tax purposes unless
such dividend or other distributions is actually received by such
holders in cash; or
(vii) declare or pay any dividends or make any other
distributions in respect of Common Stock or any other class of
Junior Stock (other than dividends on Common Stock payable solely in
additional shares of Common Stock).
7. Modification and Waiver. Except as otherwise provided herein, the
terms of this Certificate of Designations may be amended and the rights
hereunder may be waived only with the consent of holders of a majority of the
shares of the Bridge Preferred Stock then outstanding.
8. Headings of Subdivisions. The headings of the various subdivisions
hereof are for convenience of reference only and shall not affect the
interpretation of any of the provisions hereof.
13.
9. Severability of Provisions. If any voting powers, preferences and
relative, participating, optional and other special rights of the Bridge
Preferred Stock and qualifications, limitations and restrictions thereof set
forth in this resolution (as such resolution may be amended from time to time)
is invalid, unlawful or incapable of being enforced by reason of any rule of law
or public policy, all other voting powers, preferences and relative,
participating, optional and other special rights of the Bridge Preferred Stock
and any qualifications, limitations and restrictions thereof set forth in this
resolution (as so amended) which can be given effect without the invalid,
unlawful or unenforceable voting powers, preferences and relative,
participating, optional and other special rights of the Bridge Preferred Stock
or qualifications, limitations and restrictions thereof shall, nevertheless,
remain in full force and effect, and no voting powers, preferences and relative,
participating, optional or other special rights of the Bridge Preferred Stock or
qualifications, limitations and restrictions thereof herein set forth shall be
deemed dependent upon any other such voting powers, preferences and relative,
participating, optional or other special rights of Bridge Preferred Stock or
qualifications, limitations and restrictions thereof unless so expressed herein.
10. Record Holders. The Corporation and the transfer agent for the
Bridge Preferred Stock may deem and treat the record holder of any shares of
Bridge Preferred Stock as the true and lawful owner thereof for all purposes,
and neither the Corporation nor the transfer agent shall be affected by any
notice to the contrary.
11. Notice. Except as may otherwise be provided for herein, all notices
referred to herein shall be in writing, and all notices hereunder shall be
deemed to have been given upon the earlier of receipt of such notice or three
Business Days after the mailing of such notice if sent by registered mail
(unless first-class mail shall be specifically permitted for such notice under
the terms of this Certificate of Designations) with postage prepaid, addressed:
if to the Corporation, to its offices at 100 California Street, Suite 500, San
Francisco, California 94111, Attention: Secretary or to an agent of the
Corporation designated as permitted by this Certificate, or, if to any holder of
the Bridge Preferred Stock, to such holder at the address of such holder of the
Bridge Preferred Stock as listed in the stock record books of the Corporation
(which may include the records of any transfer agent for the Bridge Preferred
Stock); or to such other address as the Corporation or holder, as the case may
be, shall have designated by notice similarly given.
12. Merger or Consolidation of the Corporation. The Corporation shall
not merge or consolidate with any other Person, or enter into or effect any
reorganization, unless the surviving corporation or other entity resulting from
such merger, consolidation or reorganization shall make appropriate provision in
connection with such merger, consolidation or reorganization such that, subject
to paragraph 4(f) above, (i) the shares of Bridge Preferred Stock outstanding
immediately prior to the effective time of such merger, consolidation or
reorganization remain outstanding immediately following such merger,
consolidation or reorganization or (ii) the shares of Bridge Preferred Stock
outstanding immediately prior to the effective time of such merger,
consolidation or reorganization shall be converted into an equivalent number of
shares of convertible preferred stock of such surviving corporation or other
entity having terms identical to the terms of the Bridge Preferred Stock, except
that such shares of convertible preferred stock of such surviving corporation or
other entity shall be convertible into securities or other property as provided
in paragraph 5(h).
14.
IN WITNESS WHEREOF, the Corporation has caused this certificate to
be duly executed by Joseph Masters, its Vice President, this 22nd day of August,
2002.
URS CORPORATION
By: /s/ Joseph Masters
----------------------------
Name: Joseph Masters
Title: Vice President
ATTEST:
By: /s/ Kent P. Ainsworth
------------------------------------
Name: Kent P. Ainsworth
Title: Secretary
15.