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Exhibit 3(d)
CERTIFICATE OF DESIGNATION, NUMBER, POWERS PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL, AND OTHER SPECIAL RIGHTS AND THE QUALIFICATIONS,
LIMITATIONS, RESTRICTIONS, AND OTHER DISTINGUISHING CHARACTERISTICS OF SERIES
H PREFERRED STOCK OF REGENT COMMUNICATIONS, INC.
It is hereby certified that:
1. The name of the corporation (hereinafter called the "corporation") is
REGENT COMMUNICATIONS, INC.
2. The certificate of incorporation (as amended) of the corporation
authorizes the issuance of 20,000,000 shares of Preferred Stock (of a par value
of $.01 each) and expressly vests in the Board of Directors of the corporation
the authority provided therein to issue any or all of said shares in one or more
series and by resolution or resolutions, the designation, number, full or
limited voting powers, or the denial of voting powers, preferences and relative,
participating, optional, and other special rights and the qualifications,
limitations, restrictions, and other distinguishing characteristics of each
series to be issued.
3. The Board of Directors of the corporation, pursuant to the authority
expressly vested in it as aforesaid, has adopted the following resolutions
designating a new series of Preferred Stock as Series H Preferred Stock:
"RESOLVED, that the Board of Directors hereby designates a new series
of Preferred Stock to be known as "Series H Convertible Preferred
Stock", the number, amount, stated value, voting powers, preferences
and relative, participating, optional and other special rights of
which, and the qualifications, limitations or restrictions thereon,
are set forth on Exhibit A attached hereto;
RESOLVED FURTHER, that the statements contained in the foregoing
resolution designating the said Series H Preferred Stock shall, upon
the effective date of said series, be deemed to be included in and be
a part of the certificate of incorporation of the Company pursuant to
the provisions of Sections 104 and 151 of the General Corporation Law
of the State of Delaware;
RESOLVED FURTHER, that the officers of the Company and each of them
individually hereby are authorized to execute and deliver, for and on
behalf of the Company a Certificate of Designation to be filed with
the Delaware Secretary of State and any other documents or filings
required by applicable law required to amend the Company's Certificate
and to otherwise effectuate the intent of the foregoing resolutions."
The effective time and date of the series herein certified shall be the filing
of this certificate.
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IN WITNESS WHEREOF, the undersigned officer has executed this document
the 18th day of June, 1999.
/s/ Terry S. Jacobs
Terry S. Jacobs, Chairman and
Chief Executive Officer
COMMONWEALTH OF KENTUCKY )
)SS:
COUNTY OF KENTON )
BE IT REMEMBERED, that on this 18th day of June, 1999, before me, the
subscriber, a Notary Public in and for said county, personally came Terry S.
Jacobs, the Chairman and Chief Executive Officer of Regent Communications, Inc.,
and acknowledged that he signed the foregoing instrument on behalf of said
corporation and that the signing thereof is his voluntary act and deed and the
voluntary act and deed of said corporation.
IN TESTIMONY THEREOF, I have hereunto subscribed my name and affixed
my seal on this day and year aforesaid.
/s/ Peggy Hammons Alig
Notary Public
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EXHIBIT A
SECTION 1. DESIGNATION, AMOUNT AND STATED VALUE.
The shares of such series shall be designated as Series H Convertible
Preferred (the "Series H Preferred") and the number of shares constituting such
series shall be 2,000,000 shares. The stated value of the Series H Preferred
shall be $5.50 per share, the original per share issue price (the "Stated
Value").
SECTION 2. DIVIDENDS AND DISTRIBUTIONS.
The holders of shares of the Series H Preferred shall be entitled to
receive, when, as and if declared by the Board of Directors of the Corporation
out of funds legally available for such purpose, cumulative dividends payable
quarterly in cash on the first business day of January, April, July and October
(each such date being referred to herein as a "Quarterly Dividend Payment
Date"), accruing commencing with the date of issue of such shares, on shares of
the Series H Preferred at the rate of $.55 per share per annum; provided,
however, that if and to the extent that the holder of a share of the Series H
Preferred does not receive a cash dividend on any given Quarterly Dividend
Payment Date in full payment of the accrued and unpaid dividend on such share of
the Series H Preferred or any previously cumulated dividend on such share for
the period ending on such Quarterly Dividend Payment Date and beginning on the
immediately preceding Quarterly Dividend Payment Date (or, if such share was
first issued during such period, beginning on the date of such issuance), such
unpaid portion of such dividend shall be cumulative and shall itself accrue,
whether or not declared and whether or not the Corporation has at the time funds
legally available for such purpose, from and after such date, until the date so
paid in full, dividends on a daily basis at a rate of 10% per annum, compounded
quarterly. No interest shall be paid on accrued but unpaid dividends.
SECTION 3. VOTING RIGHTS.
In addition to voting rights required by law or by the Company's
Amended and Restated Certificate of Incorporation, as amended or restated from
time to time (the "Certificate of Incorporation"), subject to restrictions
contained in the Certificate of Incorporation the holders of Series H Preferred
shall be entitled to vote on all matters submitted to a vote of the
Corporation's stockholders. Except as otherwise required by law or provided by
the Certificate of Incorporation or by the Board of Directors pursuant to
Subpart C of Article Fourth of the Certificate of Incorporation, the holders of
the Series H Preferred shall vote together with the holders of all other series
of the Corporation's voting preferred stock and the holders of the Corporation's
Common Stock as one class with one vote per share (in the case of Preferred
Stock, subject to adjustments as provided in Section 7 below and if convertible
into Common Stock, one vote per share of Common Stock into which such
convertible Preferred Stock is then convertible) on all matters submitted to a
vote of the Corporation's stockholders.
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SECTION 4. CERTAIN RESTRICTIONS.
Whenever dividends payable on the Series H Preferred as provided in
Section 2 are in arrears, thereafter and until dividends, including all accrued
dividends, on shares of the Series H Preferred outstanding shall have been paid
in full or declared and set apart for payment, the Corporation shall not (A) pay
dividends on, make any other distributions on, or redeem or purchase or
otherwise acquire for consideration any stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series H
Preferred, provided that the Corporation may at any time redeem, purchase or
otherwise acquire shares of any such junior stock in exchange for shares of any
such junior stock, (B) pay dividends on or make any other distributions on any
stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series H Preferred, except dividends paid
ratably on the Series H Preferred and all such parity stock on which dividends
are payable or in arrears in proportion to the total amounts to which the
holders of all such shares are then entitled, (C) redeem or purchase or
otherwise acquire for consideration any stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Series H
Preferred, provided that the Corporation may at any time redeem, purchase or
otherwise acquire shares of any such parity stock in exchange for shares of any
stock of the Corporation ranking junior to the Series H Preferred or in
satisfaction of contractual obligations to do so entered into with the written
consent of the holders of a majority of outstanding shares of Series F
Preferred, Series G Preferred and Series H Preferred, voting together as one
class on the matter (including, without limitation, in satisfaction of the
provisions contained in the Stockholders' Agreement), or (D) purchase or
otherwise acquire for consideration any shares of the Series H Preferred, or any
shares of stock ranking on a parity with the Series H Preferred except in
accordance with a purchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders of such shares upon such
terms as the Board of Directors, after consideration of the respective annual
dividend rates and other relative rights and preferences of the respective
series and classes, shall unanimously determine in good faith will result in
fair and equitable treatment among the respective series of classes or except
pursuant to the provisions of the Stockholders' Agreement.
SECTION 5. REACQUIRED SHARES.
Any shares of the Series H Preferred which have been converted to
Common Stock or have been purchased or otherwise acquired by the Corporation in
any manner whatsoever shall be retired and cancelled promptly after the
acquisition thereof. All such shares shall upon their cancellation become
authorized but unissued shares of Preferred Stock and may be reissued as part of
a new series of Preferred Stock to be created by resolution or resolutions of
the Board of Directors, or otherwise in accordance with Delaware General
Corporation Law.
SECTION 6. LIQUIDATION, DISSOLUTION OR WINDING UP.
Upon any liquidation, dissolution or winding up of the Corporation, no
distribution shall be made (A) to the holders of the Series H Preferred unless,
prior thereto, the holders of the Series B Preferred shall have received the
Stated Value per share, plus an amount equal to unpaid dividends thereon,
including accrued dividends, whether or not declared, to the date of such
payment, or (B) to the holders of stock ranking junior (either as to dividends
or upon liquidation, dissolution or winding up) to the Series H Preferred
unless, prior thereto, the holders of Series H Preferred shall have received the
Stated Value per share, plus an amount equal to unpaid dividends thereon,
including accrued dividends, whether or not declared, to the date of such
payment, or (C) to the holders of stock ranking on a parity
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(either as to dividends or upon liquidation, dissolution or winding up) with the
Series H Preferred, except distributions made ratably on the Series H Preferred
and all other such parity stock in proportion to the total amounts to which the
holders of all such shares are entitled upon such liquidation, dissolution or
winding up.
SECTION 7. CONVERSION.
[a] Optional Conversion. Subject to the provisions for
adjustment hereinafter set forth, each share of the Series H Preferred
shall be convertible at any time at the option of the holder thereof,
in the manner hereinafter set forth, into one (1) fully paid and
nonassessable share of Common Stock of the Corporation.
[b] Mandatory Conversion. Subject to the provisions for
adjustment set forth in this Section 7, each share of the Series H
Preferred shall be convertible at the option of the Board of Directors
into one (1) fully paid and nonassessable share of Common Stock of the
Corporation in the event of, and concurrently with the closing of, a
public offering of Common Stock of the Corporation at a per share
price of at least $12.00 (subject to adjustment for stock splits,
stock dividends, reverse stock splits and the like) with gross
proceeds to the Corporation of at least $25,000,000 (excluding the
effect of any over-allotment option).
[c] The number of shares of Common Stock into which each share
of the Series H Preferred is convertible shall be adjusted from time
to time as follows:
[i] In case the Corporation shall at any time or from
time to time after the issuance of such share of Series H
Preferred declare or pay any dividend on its Common Stock
payable in its Common Stock or effect a subdivision of the
outstanding shares of its Common Stock into a greater number
of shares of Common Stock (by reclassification or otherwise),
then, and in each such case, the number of shares of Common
Stock into which each share of the Series H Preferred is
convertible shall be adjusted so that the holder of each share
thereof shall be entitled to receive, upon the conversion
thereof, the number of shares of Common Stock determined by
multiplying (a) the number of shares of Common Stock into
which such share was convertible immediately prior to the
occurrence of such event by (b) a fraction, the numerator of
which is the sum of (I) the number of shares of Common Stock
into which such share was convertible immediately prior to the
occurrence of such event plus (II) the number of shares of
Common Stock which such holder would have been entitled to
receive in connection with the occurrence of such event had
such share been converted immediately prior thereto, and the
denominator of which is the number of shares of Common Stock
determined in accordance with clause (I) above. An adjustment
made pursuant to this subparagraph [c][i] shall become
effective (a) in the case of any such dividend, immediately
after the close of business on the record date for the
determination of holders of Common Stock entitled to receive
such dividend, or (b) in the case of any such subdivision, at
the close of business on the day immediately prior to the day
upon which such corporate action becomes effective.
[ii] In case the Corporation at any time or from time
to time after the issuance of such share of Series H Preferred
shall combine or consolidate the
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outstanding shares of its Common Stock into a lesser number
of shares of Common Stock, by reclassification or otherwise,
then, and in each such case, the number of shares of Common
Stock into which each share of the Series H Preferred is
convertible shall be adjusted so that the holder of each
share thereof shall be entitled to receive, upon the
conversion thereof, the number of shares of Common Stock
determined by multiplying (a) the number of shares of Common
Stock into which such share was convertible immediately
prior to the occurrence of such event by (b) a fraction, the
numerator of which is the number of shares which the holder
would have owned after giving effect to such event had such
share been converted immediately prior to the occurrence of
such event and the denominator of which is the number of
shares of Common Stock into which such share was convertible
immediately prior to the occurrence of such event. An
adjustment made pursuant to this subparagraph b[ii] shall
become effective at the close of business on the date
immediately prior to the day upon which such corporate
action becomes effective.
[iii] In case the Corporation after the issuance of
such share of Series H Preferred shall: (A) issue any options,
warrants, or other rights (excluding options to purchase
Common Stock issued to management of the Corporation
exercisable for up to the lesser of 2,000,000 shares of Common
Stock (subject to adjustment pursuant to provisions
applicable to the options in the case of stock splits, reverse
stock splits and the like) or that number of shares of Common
Stock equal to fifteen percent (15%) of the aggregate number
of outstanding shares of Common Stock and other equity
securities of the Corporation exercisable for the purchase of,
or convertible into, Common Stock, computed on a fully-diluted
basis) entitling the holder thereof to subscribe for, or
purchase, Common Stock at a price per share which, when added
to the amount of consideration received or receivable by the
Corporation for such options, warrants, or other rights, is
less than the then fair market value per share of the Common
Stock at the date of such issuance; (B) issue or sell
securities of the Corporation convertible into, or
exchangeable for, Common Stock at a price per share which,
when added to the amount of consideration received or
receivable, from the Corporation for such exchangeable or
convertible securities, is less than the then fair market
value of a share of Common Stock at the date of such issuance;
or (C) issue or sell additional shares of Common Stock for
consideration representing less than the then fair market
value of the Common Stock at the date of such issuance; then
the number of shares of Common Stock into which each share of
the Series H Preferred is convertible shall be adjusted
so that, thereafter, until further adjusted, the holder of
each share thereof shall be entitled to receive, upon the
conversion thereof, the number of shares of Common Stock
determined by multiplying (w) the number of shares of Common
Stock into which such shares are convertible immediately prior
to the occurrence of such event by (x) a fraction, the
numerator of which shall be the number of shares of Common
Stock outstanding prior to such issuance plus the number of
additional shares of Common Stock issuable upon exercise of
such options, warrants, or rights, or exchangeable or
convertible securities, or the additional number of shares of
Common Stock issued at such time, and the denominator of
which shall be the number of shares of Common Stock
outstanding prior to such issuance plus the number of shares
of Common Stock that either (y) the sum of the aggregate
exercise price of the total number of shares of Common Stock
issuable upon exercise of such options,
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warrants, or rights, or upon conversion or exchange of such
convertible securities, and the aggregate amount of
consideration, if any, received or receivable by the
Corporation for such options, warrants, or rights, or
convertible or exchangeable securities, or (z) the aggregate
consideration received in connection with the sale of shares
of its Common Stock for less than the then fair market
value, as the case may be, would purchase at the then fair
market value.
[iv] In the event that, at any time, or from
time to time, after the issuance of such share of the Series H
Preferred, the Common Stock issuable upon conversion of the
Series H Preferred is changed into the same or a different
number of shares of any class or classes of stock, whether by
recapitalization, reclassification, or otherwise (other than a
subdivision or combination of shares or stock dividend, or a
reorganization, merger, consolidation or sale of assets,
provided for elsewhere in this Section 7), then, and in any
such event, each holder of Series H Preferred shall have the
right thereafter to convert such stock into the kind and
amount of stock and other securities and property receivable
upon such recapitalization, reclassification, or other change,
by holders of the number of shares of Common Stock into which
such shares of Series H Preferred could have been converted
immediately prior to such recapitalization, reclassification,
or change, all subject to further adjustment as provided
herein.
[v] If at any time, or from time to time
after the issuance of such share of the Series H Preferred,
there is a capital reorganization of the Common Stock other
than a recapitalization, subdivision, combination,
reclassification, or exchange of shares provided for elsewhere
in this Section 7) or a merger or consolidation of the
Corporation with or into another corporation, or the sale of
all, or substantially all, of the Corporation's properties and
assets to any other person, then, as a part of such
reorganization, merger, consolidation, or sale, provision
shall be made so that the holders of the Series H Preferred
shall thereafter be entitled to receive upon conversion of the
Series H Preferred the number of shares of stock or other
securities or property to which a holder of the number of
shares of Common Stock deliverable upon conversion would have
been entitled on such capital reorganization, merger,
consolidation, or sale. In any such case, appropriate
adjustment shall be made in the application of the provisions
of this Section 7 with respect to the rights of the holders of
Series H Preferred after the reorganization, merger,
consolidation, or sale to the end that the provisions of this
Section 7 shall be applicable after that event and be as
nearly equivalent as may be practicable.
[vi] Upon the expiration of any rights,
options, warrants or conversion or exchange privileges which
caused an adjustment pursuant to this Section 7 to be made, if
any thereof shall not have been exercised, the number of
shares of Common Stock into which each share of the Series H
Preferred is convertible shall, upon such expiration, be
readjusted and shall thereafter be such as it would have been
had it been originally adjusted (or had the original
adjustment not been required, as the case may be) as if (a)
the only shares of Common Stock so issued were the shares of
Common Stock, if any, actually issued or sold upon the
exercise of such rights, options, warrants or conversion or
exchange privileges and (b) such shares of Common Stock, if
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any, were issued or sold for the consideration actually
received by the Company upon such exercise plus the aggregate
consideration, if any, actually received by the Company for
the issuance, sale or grant of all such rights, options,
warrants or conversion or exchange privileges, whether or not
exercised.
[vii] In addition to any other adjustment
pursuant to this Section 7 [c], if WPG Corporate Development
Associates V, L.L.C. ("WPG"), WPG Corporate Development
Associates V (Overseas), L.P., or any affiliate or assignee
thereof does not purchase at least 1,363,636 shares in the
aggregate of Series H Preferred on or before the earliest to
occur of (i) August 31, 1999, (ii) such earlier date as is
mutually agreed upon by the Company and WPG, and (iii) the
date of the closing of the purchase by the Corporation of the
assets of radio stations WXKC-FM, WRIE-AM and WXTA-FM pursuant
to that certain Asset Purchase Agreement dated May 18, 1999
relating thereto, then Section 7 [a] and [b] above shall be
modified to provide that each share of Series H Preferred
shall be convertible into a number of shares of Common Stock
equal to the greater of (x) one (1) and (y) a fraction, the
numerator of which is $5.50 and the denominator of which is
the effective conversion price per share of Common Stock of
the next subsequent issuance of Common Stock or any series of
convertible Preferred Stock by the Corporation in which the
gross proceeds to the Corporation are not less than
$2,000,000.
[d] If any adjustment in the number of shares of Common Stock
into which each share of the Series H Preferred may be converted
required pursuant to this Section 7 would result in an increase or
decrease of less than 1% in the number of shares of Common Stock into
which each share of the Series H Preferred is then convertible, the
amount of any such adjustment shall be carried forward and adjustment
with respect thereto shall be made at the time of and together with
any subsequent adjustment which, together with such amount and any
other amount or amounts so carried forward, shall aggregate at least
1% of the number of shares of Common Stock into which each share of
the Series H Preferred is then convertible; provided that any such
adjustments carried forward shall be made immediately following
receipt of notice from a holder of the intent to convert all or a
portion of the Series H Preferred such that upon conversion the holder
shall receive such number of shares of Common Stock as such holder is
entitled, taking into account all adjustments required by this Section
7. All calculations under this paragraph [d] shall be made to the
nearest one-hundredth of a share.
[e] The holder of any shares of the Series H Preferred may
convert such shares into shares of Common Stock pursuant to paragraph
[a] of this Section 7 by surrendering for such purpose to the
Corporation, at its principal office or at such other office or agency
maintained by the Corporation for that purpose, a certificate or
certificates representing the shares of Series H Preferred to be
converted (or if such certificate or certificates cannot be found, an
affidavit of lost securities in form and substance acceptable to the
Corporation) accompanied by a written notice stating that such holder
elects to convert all or a specified number of such shares in
accordance with the provisions of this Section 7 and specifying the
name or names in which such holder wishes the certificate or
certificates for shares of Common Stock to be issued. In case such
notice shall specify a name or names other than that of such holder,
such notice shall be accompanied by payment of all transfer taxes
payable upon the issuance of shares of Common Stock in such name or
names. As promptly as practicable, and in any event within
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five business days after the surrender of such certificates and the
receipt of such notice relating thereto and, if applicable, payment of
all transfer taxes, the Corporation shall deliver or cause to be
delivered (i) certificates representing the number of validly issued,
fully paid and nonassessable shares of Common Stock of the Corporation
to which the holder of the Series H Preferred so converted shall be
entitled and (ii) if less than the full number of shares of the Series
H Preferred evidenced by the surrendered certificate or certificates
are being converted, a new certificate or certificates, of like tenor,
for the number of shares evidenced by such surrendered certificate or
certificates less the number of shares converted. Such conversions
shall be deemed to have been made at the close of business on the date
of giving of such notice and of such surrender of the certificate or
certificates representing the shares of the Series H Preferred to be
converted so that the rights of the holder thereof shall cease except
for the right to receive Common Stock of the Corporation in accordance
herewith and any accumulated, accrued or unpaid dividends pursuant to
paragraph [g] below, and the converting holder shall be treated for
all purposes as having become the record holder of such Common Stock
of the Corporation at such time.
[f] The Series H Preferred shall convert to Common Stock of
the Corporation pursuant to paragraph [b] of this Section 7
automatically upon notice in writing to the stockholders, including
all holders of the Series H Preferred, setting forth the date of such
conversion and the material terms of the triggering public offering.
As promptly as practicable after such notice, and in any event within
five business days after the surrender of certificates for the Series
H Preferred (if required by the Board of Directors), the Corporation
shall deliver or cause to be delivered to each holder of Series H
Preferred certificates representing the number of validly issued,
fully paid and nonassessable shares of Common Stock of the Corporation
to which such holder of the Series H Preferred so converted shall be
entitled. Such conversion shall be deemed to have been made at the
close of business on the date set forth in such notice of mandatory
conversion so that the rights of the holder thereof shall cease with
or without surrender of certificates for the Series H Preferred,
except for the right to receive Common Stock of the Corporation in
accordance herewith and any accumulated, accrued or unpaid dividends
pursuant to paragraph [g] below, and the converting holder shall be
treated for all purposes as having become the record holder of such
Common Stock of the Corporation at such time.
[g] Upon conversion of any shares of the Series H Preferred
pursuant to paragraph [a] or [b] of this Section 7, the holder thereof
shall be entitled to receive any accumulated, accrued or unpaid
dividends in respect of the shares so converted (whether or not
declared or otherwise payable as of such date of conversion),
including any dividends on such shares of the Series H Preferred
declared prior to such conversion if such holder held such shares on
the record date fixed for the determination of holders of the Series H
Preferred entitled to receive payment of such dividend.
[h] The Corporation shall at all times reserve and keep
available out of its authorized Common Stock the full number of shares
of Common Stock of the Corporation issuable upon the conversion of all
outstanding shares of the Series H Preferred.
[i] For purposes of this Section, "fair market value" shall be
as determined by the Board of Directors in such manner as they shall
deem appropriate in their discretion, unless the holder(s) of more
than twenty-five percent (25%) of the outstanding shares of Preferred
Stock
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of the Corporation demand in good faith and in writing that "fair
market value" be determined by an appraiser, who shall be mutually
acceptable to the Board of Directors and such holders, whose
determination shall be binding and whose fees and expenses shall be
paid by the Corporation.
SECTION 8. REPORTS AS TO ADJUSTMENTS.
Whenever the number of shares of Common Stock into which the shares of
the Series H Preferred are convertible is adjusted as provided in Section 7, the
Corporation will (A) promptly compute such adjustment and furnish to each
transfer agent for the Series H Preferred a certificate, signed by a principal
financial officer of the Corporation, setting forth the number of shares of
Common Stock into which each share of the Series H Preferred is convertible as a
result of such adjustment, a brief statement of the facts requiring such
adjustment and the computation thereof and when such adjustment will become
effective and (B) promptly mail to the holders of record of the outstanding
shares of the Series H Preferred a notice stating that the number of shares into
which the shares of Series H Preferred are convertible has been adjusted and
setting forth the new number of shares into which each share of the Series H
Preferred is convertible as a result of such adjustment and when such adjustment
will become effective. Notwithstanding the foregoing, the Corporation shall
incur no liability for its failure to take any action set forth in this Section
8, nor shall such failure affect the validity, rights or preferences of any
shares of the Series H Preferred.
SECTION 9. RANKING.
The Series H Preferred shall rank senior to the Common Stock and any
other series of Preferred Stock of the Corporation hereafter created (except for
the Series B Preferred, which shall rank senior to the Series H Preferred, and
except for the Series A Preferred, the Series C Preferred, the Series D
Preferred, the Series E Preferred, the Series F Preferred, the Series G
Preferred, and any other series of Preferred Stock which the Board of Directors
shall establish and designate to rank equal therewith pursuant to Subpart C of
Article Fourth of the Company's Certificate of Incorporation, with which it
shall rank equal), as to the payment of dividends and the distribution of assets
and rights upon liquidation, dissolution or winding up of the Corporation.
SECTION 10. DIRECTORSHIP.
Upon and subject to the purchase of at least 1,750,000 shares in the
aggregate of the Series H Preferred, the holders of the Series H Preferred, as a
class, shall be entitled to be represented on the Board of Directors by one
Director (the "Series H Director") who, upon nomination by such holders, as a
class, will stand for election by voting by the holders of the Preferred Stock
entitled to vote for the election of directors (subject to limitations in
Article Fourth of the Certificate of Incorporation or established by the Board
of Directors pursuant to Section C of Article Fourth of the Certificate of
Incorporation) and holders of Common Stock together, except under circumstances
where the number of individuals nominated for election exceeds the number of
Directors to be elected. In the event the number of individuals nominated for
election exceeds the number of Directors to be elected, then the holders of the
Series H Preferred shall have the sole right to vote for, elect and remove the
individual nominated by them, as a class, to serve as the Series H Director, and
in such event the further right to vote for, elect or remove any of the other
Directors who are not to be elected solely by the holders of
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another class or series of Preferred Stock. The Series H Director, upon being
elected, will serve for the same term and have the same voting powers as other
Directors. The right to elect the Series H Director pursuant to the terms hereof
shall be exercisable by the holders of a majority of the Series H Preferred at
their option upon at least 60 days notice to the Corporation; provided, however,
if the Corporation is subject to the reporting requirements of the Securities
Exchange Act of 1934, such notice must be provided on or before the date
established by the Corporation for the submission of proposals pursuant to the
proxy rules promulgated under the Securities Exchange Act of 1934. The Series H
Director shall serve as a member of the Acquisitions Committee of the Board of
Directors (or any other Committee of the Board performing such functions).