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EXHIBIT 4.5
CERTIFICATE OF DESIGNATION[, POWERS, PREFERENCES AND RELATIVE
PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS, AND THE
QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS] OF THE ___%
[NONCUMULATIVE] [CUMULATIVE] [REDEEMABLE] [NON-REDEEMABLE]
[CONVERTIBLE] [EXCHANGEABLE] PREFERRED STOCK, SERIES ___
($.001 Par Value) *
OF
DEL WEBB CORPORATION
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
The undersigned hereby certify that the following resolution was duly
adopted by the Board of Directors of Del Webb Corporation, a Delaware
corporation (the "Company"), with respect to the [name of series of Preferred
Stock]:
RESOLVED, That pursuant to the authority conferred upon the Board of
Directors by the Amended and Restated Certificate of Incorporation of the
Company (the "Certificate of Incorporation"), the Board of Directors (the
"Board") of the Company on _______, 199_ approved the creation and the voting
powers of the following series of Preferred Stock, $.001 par value [, and on
______, 199_ a duly authorized committee of the Board adopted the following
resolution creating a series of ______ shares of Preferred Stock, $.001 par
value] (the "Series ____ Preferred Stock"), with the powers, designations,
preferences and relative, participating, optional or other special rights, and
the qualifications, limitations or restrictions thereof, of the shares of such
series (in addition to the powers, designations, preferences and relative,
participating, optional or other special rights, and the qualifications,
limitations or restrictions thereof, set forth in the Certificate of
Incorporation that may be applicable to the Preferred Stock), as follows:
1. Designation and Rank. The designation of such series of the
Preferred Stock authorized by this resolution shall be the ___% [Noncumulative]
[Cumulative] [Redeemable] [Non-Redeemable] [Convertible] Preferred Stock, Series
____ (the "Series ___ Preferred Stock"). The maximum number of shares of Series
___ Preferred Stock shall be _____. Shares of the Series ___ Preferred Stock
shall have a liquidation preference of $___ per share. The Series ___ Preferred
Stock shall rank prior to the Company's Common Stock and to all other classes
and series of equity securities of the Company now or hereafter authorized,
issued or outstanding (the Common Stock and such other classes and series of
equity securities collectively may be referred to herein as the "Junior Stock"),
other than any classes or series of equity securities of the Company ranking on
a parity with (the "Parity Stock") or senior to (the "Senior Stock") the Series
___ Preferred Stock as to dividend rights and rights upon liquidation, winding
up or dissolution of the Company as have been [or may in the future] be
designated by the Board. The
______________________
* Language in brackets in this form of Certificate of Designations may or may
not be included in the final Certificate of Designations. Appropriate
disclosure will be made in the Prospectus Supplement of which alternate
terms have been selected and the final Certificate of Designations will be
filed as an Exhibit to an 8-K or other periodic report.
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Series ___ Preferred Stock shall be junior to all outstanding debt of the
Company. The Series ___ Preferred Stock shall be subject to creation of Senior
Stock, Parity Stock and Junior Stock, to the extent not expressly prohibited by
the Company's Certificate of Incorporation, with respect to the payment of
dividends and upon liquidation, and shall be initially issued at a price
(payable by the underwriter(s) thereof) of $___ per share.
2. [Noncumulative] [Cumulative] Dividends; Priority.
(a) Payment of Dividends. The holders of record of shares of Series___
Preferred Stock shall be entitled to receive, when, as and if declared by the
Board out of funds legally available therefor, [noncumulative] [cumulative] cash
dividends at the rate per annum per share of ____% ($_____ per annum) (the
"Dividend Rate"), which shall accrue from ________, 19__ and be payable _______
[in arrears] on the ___ day of ________, ________, _________ and _______ in
each year (or if such day is a non-business day, on the next business day),
commencing on ____________, 19__ (each of such dates a "Dividend Payment Date").
Each declared dividend shall be payable to holders of record as they appear on
the stock books of the Company at the close of business on such record dates,
not more than 60 calendar days preceding the payment dates therefor, as are
determined by the Board (each of such dates a "Record Date"). ________ dividend
periods (each a "Dividend Period") shall commence on and include the ___ day of
________, ________, ________ and __________ of each year and shall end on and
include the date next preceding the next following Dividend Payment Date. [If
cumulative, insert -- Dividends on the Shares of Series __ Preferred Stock
shall be fully cumulative, shall accrue (whether or not declared) from the
first day of each Dividend Period and shall be payable on the Dividend Payment
Date first succeeding the end of each Dividend Period, except that with respect
to the first dividend, such dividend shall accrue from the date of issue of the
Series __ Preferred Stock. For any Dividend Period in which dividends are not
paid in cash at the Dividend Rate on the Dividend Payment Date first succeeding
the end of such Dividend Period, such accrued dividends shall be added (solely
for the purpose of calculating dividends payable on the Series __ Preferred
Stock) to the Liquidation Preference (as defined below) of the Series __
Preferred Stock effective at the beginning of the Dividend Period succeeding
the Dividend Period as to which such dividends were not paid and shall
thereafter accrue additional dividends in respect thereof ("Additional
Dividends") at the Dividend Rate applicable from time to time until such
unpaid dividends have been paid in full.]
[If Noncumulative, insert -- Dividends on the shares of Series ___
Preferred Stock shall be noncumulative, so that if a dividend on the shares of
Series ___ Preferred Stock with respect to any Dividend Period is not declared
by the Board of the Company, then the Company shall have no obligation at any
time to pay a dividend on the shares of Series ___ Preferred Stock in respect of
such Dividend Period. Holders of the shares of the Series ___ Preferred Stock
shall not be entitled to any dividends, whether payable in cash, property or
stock, in excess of the noncumulative dividends declared by the Board, as set
forth herein.]
The amount of dividends payable per share for each full Dividend Period
shall be computed by dividing by _____ the $____ annual amount. Dividends on the
Series ___ Preferred Stock shall accrue day by day, and all shares issued within
45 days of the first day on which such shares are issued shall accrue dividends
from such date of first issuance. The initial ______ dividend payable on ______,
19__ and the amount of any dividend payable for any other period shorter than a
full Dividend Period shall be computed on the basis of a 360-day year composed
of twelve 30-day months and the actual number of days elapsed in the Period.
(b) Priority as to Dividends. No full dividends shall be declared or
paid or set apart for payment on Preferred Stock of any series ranking, as to
dividends, on a parity with the Series ___ Preferred Stock for any period unless
full dividends on the Series ___ Preferred Stock for the immediately preceding
Dividend Period have been or contemporaneously are declared and paid (or
declared and a sum sufficient for the payment thereof set apart for such
payment). When
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dividends are not paid in full (or declared and a sum sufficient for such full
payment so set apart) upon the Series ___ Preferred Stock and any other
Preferred Stock ranking on a parity as to dividends with the Series ___
Preferred Stock, all dividends declared upon shares of Series ___ Preferred
Stock and any other Preferred Stock ranking on a parity as to dividends shall be
declared pro rata with respect thereto, so that in all cases the amount of
dividends declared per share on the Series ___ Preferred Stock and such other
Preferred Stock shall bear to each other the same ratio that accrued dividends
for the then-current Dividend Period per share on the shares of Series ___
Preferred Stock (which shall not include any accumulation in respect of unpaid
dividends for prior Dividend Periods) and for dividends, including
accumulations, if any, of such other Preferred Stock, bear to each other.
Except as provided in the preceding sentence, full dividends on the
Series ___ Preferred Stock must be declared and paid or set apart for payment
for the immediately preceding Dividend Period before (i) any cash dividend or
other distribution (other than in Common Stock or other Junior Stock) shall be
declared or paid or set aside for payment upon the Common Stock of the Company
or any other Junior Stock or (ii) any Common Stock or any other Junior Stock is
redeemed, purchased or otherwise acquired by the Company for any consideration
(or any moneys are paid to or made available for a sinking fund for the
redemption of any shares of any such stock) except by conversion into or
exchange for Junior Stock or (iii) any Series ___ Preferred Stock or Parity
Stock is redeemed, purchased or otherwise acquired by the Company for any
consideration (or any moneys are paid to or made available for a sinking fund
for the redemption of any shares of any such stock) otherwise than pursuant to a
pro rata offer to purchase or a concurrent redemption of all, or a pro rata
portion, of the outstanding shares of Series ___ Preferred Stock and Parity
Stock (except by conversion into or exchange for Junior Stock).
The Company shall not permit any subsidiary of the Company to purchase
or otherwise acquire for consideration any shares of stock of the Company if,
under the preceding paragraph, the Company would be prohibited from purchasing
or otherwise acquiring such shares at such time and in such manner.
3. [[Optional] [Mandatory] Redemption] [Non-Redeemability].
(a) General. [If Optional Redemption, insert -- The shares of the
Series ___ Preferred Stock will not be redeemable before _______________, ____.
Thereafter, subject to the applicable restrictions in this Section 3 and
applicable law, the shares of Series ___ Preferred Stock may be redeemed, in
whole or in part, at the election of the Company, upon notice as provided in
Section 3(b), by resolution of its Board, at any time or from time to time, at
the following redemption prices plus, in each case, an amount equal to all
accrued and unpaid dividends for the then-current Dividend Period to the date
fixed for redemption:
If Redeemed
During the 12- Per Share If Redeemed During the Per Share
Month Period Redemption 12-Month Period Ending Redemption
Ending on ____, Price on ______, Price
--------------- ---------- ---------- ----------
199__ $ 199__ $
199__ 199__
199__ 199__
___ and thereafter
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If less than all the outstanding shares of Series ___ Preferred Stock
are to be redeemed, the Company shall select those to be redeemed pro rata, by
lot or by a substantially equivalent method. On and after the redemption date,
dividends shall cease to accrue on the shares, and they shall be deemed to cease
to be outstanding, provided that the redemption price (including any accrued and
unpaid dividends to the date fixed for redemption) has been duly paid or
provided for.]
[If mandatory redemption, insert -- As a mandatory redemption for the
retirement of the shares of Series __ Preferred Stock, the Company shall redeem,
out of funds legally available therefor, on _____________ (if such shares remain
outstanding) ___% of all shares issued [then outstanding], in each case at the
redemption price of $_____ per share. Immediately prior to authorizing or making
such redemption with respect to the Series ___ Preferred Stock, the Company, by
resolution of the Board shall, to the extent funds are legally available
therefor, declare a mandatory dividend on the Series ____ Preferred Stock
payable on the redemption date in the amount equal to any accrued and unpaid
dividends on the Series ____ Preferred Stock as of such date and, if the Company
does not have sufficient funds legally available to declare and pay all
dividends accrued at the time of such redemption, any remaining accrued and
unpaid dividends shall be added to the redemption price. If the Company shall
fail to discharge its obligation to redeem all of the outstanding shares of
Series ____ Preferred Stock required to be redeemed pursuant to this Section
3(a) of this Certificate (the "Mandatory Redemption Obligation"), the Mandatory
Redemption Obligation shall be discharged as soon as the Company is able to
discharge such Mandatory Redemption Obligation. If and so long as the Mandatory
Redemption Obligation shall not fully be discharged, (i) dividends on the Series
___ Preferred Stock shall continue to accrue and be added to the dividend
payable pursuant to the second preceding sentence and (ii) the Company shall not
declare or pay any dividend or make any distribution on its securities not
otherwise permitted by this Certificate.
[If Non-Redeemable, insert -- The shares of the Series ____ Preferred
Stock shall not be redeemed by the Company.]
[If optional or mandatory redemption, insert -- (b) Notice of
Redemption. Notice of any redemption, setting forth (i) the date and place fixed
for the redemption, (ii) the redemption price[,] [and] (iii) a statement that
dividends on the shares to be redeemed will cease to accrue on such redemption
date [and (iv) a statement of or reference to the conversion right set forth in
Section 5 hereof (including that the right to give a notice of conversion in
respect of any shares to be redeemed shall terminate at the close of business on
the redemption date)], shall be mailed, postage prepaid, at least __ days but
not more than __ days prior to the redemption date to each holder of record of
the Series ___ Preferred Stock to be redeemed at his, her or its address as the
same shall appear on the books of the Company. If less than all the shares of
the Series ___ Preferred Stock owned by such holder are then to be redeemed, the
notice shall specify the number of shares thereof that are to be redeemed and
the numbers of the certificates representing such shares.
If such notice of redemption shall have been so mailed, and if on or
before the redemption date specified in such notice all funds necessary for such
redemption shall have been set aside by the Company separate and apart from its
other funds, in trust for the account of the holders of the shares so to be
redeemed, so as to be and continue to be available therefor, then, on and after
the redemption date, notwithstanding that any certificate for shares of the
Series ___ Preferred Stock so called for redemption shall not have been
surrendered for cancellation, the shares represented thereby so called for
redemption shall be deemed to be no longer outstanding, the dividends thereon
shall cease to accrue and all rights with respect to such shares of the Series
___ Preferred Stock so called for redemption shall forthwith cease and
terminate, [including the right to convert such shares pursuant to Section 5
below,] except only the right of the holders thereof to receive out of the funds
so set aside in trust the amount payable on redemption thereof,
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but without interest, upon surrender (and endorsement or assignment for
transfer, if required by the Company) of their certificates.
However, if the notice of redemption shall have been so mailed, and if
prior to the date of redemption specified in the notice all funds necessary for
the redemption have been irrevocably deposited in trust, for the account of the
holders of the shares of the Series ___ Preferred Stock to be redeemed (and so
as to be and continue to be available therefor), with a bank or trust company
named in such notice doing business in the the States of _________ or _________
and having capital surplus and undivided profits of at least [$50,000,000],
thereupon and without awaiting the redemption date, all shares of the Series ___
Preferred Stock with respect to which such notice shall have been so mailed and
such deposit shall have been so made shall be deemed to be no longer outstanding
and all rights with respect to such shares of the Series ___ Preferred Stock
shall forthwith upon such deposit in trust cease and terminate, [except only the
right of the holders thereof to convert such shares in accordance with the
provisions of Section 5 hereof at any time prior to the close of business on the
redemption date,] and the right of the holders thereof on or after the
redemption date to receive from such deposit the amount payable upon the
redemption, but without interest, upon surrender (and endorsement or assignment
to transfer, if required by the Company) of their certificates. In case the
holders of shares of the Series ___ Preferred Stock that shall have been
redeemed shall not within [two] years (or any longer period if required by law)
after the redemption date claim any amount so deposited in trust for the
redemption of such shares, such bank or trust company shall, upon demand and if
permitted by applicable law, pay over to the Company any such unclaimed amount
so deposited with it, and shall thereupon be relieved of all responsibility in
respect thereof, and thereafter the holders of such shares shall, subject to
applicable escheat laws, look only to the Company for payment of the redemption
price thereof, but without interest.
(c) Status of Shares Redeemed [or Converted]. Shares of Series ___
Preferred Stock redeemed, purchased or otherwise acquired for value by the
Company, [including by conversion in accordance with Section 5 hereof,] shall,
after such acquisition, have the status of [authorized and unissued shares of
Preferred Stock] [Treasury Stock] [and may be reissued by the Company at any
time as shares of any series of Preferred Stock other than as shares of Series
___ Preferred Stock].
4. Voting Rights.
(a) General. Except as expressly provided hereinafter in this Section
4, or as otherwise from time to time required by applicable law, the Series ___
Preferred Stock shall have no voting rights.
(b) Voting Rights Upon Dividend Arrearages.
(i) Right to Elect Directors. If [an amount equal to] [six]
[consecutive] quarterly dividend payments on the Series ___ Preferred Stock have
accrued and are unpaid, the holders of the Series ___ Preferred Stock shall have
the right, voting separately as a class together with holders of shares of any
Parity Stock upon which like voting rights have been conferred and are
exercisable ("Voting Parity Stock"), to elect [two] members of the Board, each
member to be in addition to the then authorized number of directors, at the next
annual meeting of stockholders or at a special meeting called as described below
and thereafter until dividends on the Series ___ Preferred Stock have been paid
in full for ____ [consecutive] Dividend Periods, including the last preceding
Dividend Period.
(ii) Special Meeting. Whenever such right shall vest, it may be
exercised initially by the vote of the holders of a [plurality] [majority] of
the shares of Series ___ Preferred Stock and Voting Parity Stock present and
voting, in person or by proxy, at a special meeting of
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holders of the Series ___ Preferred Stock and Voting Parity Stock or at the next
annual meeting of stockholders. A special meeting for the exercise of such right
shall be called by the Secretary of the Company as promptly as possible, and in
any event within l0 days after receipt of a written request signed by the
holders of record of at least 25% of the outstanding shares of the Series ___
Preferred Stock, subject to any applicable notice requirements imposed by law or
regulation. Notwithstanding the provisions of this paragraph, no such special
meeting shall be required to be held during the [90]-day period preceding the
date fixed for the annual meeting of stockholders.
(iii) Term of Office of Directors. Any director who has been
elected by holders of the Series ___ Preferred Stock and Voting Parity Stock
entitled to vote in accordance with this subparagraph (b) shall hold office for
a term expiring (subject to the earlier payment, or declaration and setting
aside for payment, of dividends on the Series ___ Preferred Stock for _______
consecutive Dividend Periods as described below) at the next annual meeting of
stockholders and during such term may be removed at any time, either for or
without cause, by, and only by, the affirmative vote of the holders of record of
a majority of the shares of the Series ___ Preferred Stock and Voting Parity
Stock present and voting, in person or by proxy, at a special meeting of such
stockholders called for such purpose, and any vacancy created by such removal
may also be filled at that meeting. A meeting for the removal of a director
elected by the holders of the Series ___ Preferred Stock and Voting Parity Stock
and the filling of the vacancy created thereby shall be called by the Secretary
of the Company as promptly as possible and in any event within 10 days after
receipt of a request therefor signed by the holders of not less than 25% of the
outstanding shares of the Series ___ Preferred Stock, subject to any applicable
notice requirements imposed by law or regulation. Such meeting shall be held at
the earliest practicable date thereafter, provided that no such meeting shall be
required to be held during the [90]-day period preceding the date fixed for the
annual meeting of stockholders. Upon payment, or declaration and setting aside
for payment, of dividends on the Series ___ Preferred Stock so that dividends
are not then in arrears (or upon payment of the funds so set aside will not be
in arrears) for [six] [consecutive] Dividend Periods the terms of office of all
directors elected by the holders of the shares of Series ___ Preferred Stock and
the Voting Parity Stock pursuant thereto then in office shall, without further
action, thereupon terminate unless otherwise required by law. Upon such
termination the number of directors constituting the Board of the Company shall,
without further action, be reduced by two, subject always to the increase of the
number of directors pursuant to the foregoing provisions in the case of the
future right of holders of the shares of Series ___ Preferred Stock and Voting
Parity Stock to elect directors as provided above.
(iv) Vacancies. Any vacancy caused by the death or resignation of
a director who has been elected in accordance with this subparagraph (b) may be
filled by the remaining director so elected or, if not so filled, by a vote of
holders of a [plurality] [majority] of the shares of the Series ___ Preferred
Stock and Voting Parity Stock present and voting, in person or by proxy, at a
meeting called for such purpose. Unless such vacancy shall have been so filled
by the remaining director, such meeting shall be called by the Secretary of the
Company at the earliest practicable date after such death or resignation, and in
any event within l0 days after receipt of a written request signed by the
holders of record of at least 25% of the outstanding shares of the Series ___
Preferred Stock, subject to any applicable notice requirements imposed by law or
regulation. Notwithstanding the provisions of this paragraph, no such special
meeting shall be required to be held during the [90]-day period preceding the
date fixed for the annual meeting of stockholders.
(v) Stockholders' Right to Call Meeting. If any meeting of the
holders of the Series ___ Preferred Stock and Voting Parity Stock required by
this subparagraph (b) to be called shall not have been called within 30 days
after personal service of a written request therefor upon the Secretary of the
Company or within 30 days after mailing the same within the United States of
America by registered mail, return receipt requested, addressed to the Secretary
of the Company at its principal executive offices, subject to any applicable
notice requirements
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imposed by law or regulation, then the holders of record of at least 25% of the
outstanding shares of the Series ___ Preferred Stock may designate in writing
one of their number to call such meeting at the expense of the Company, and such
meeting may be called by such person so designated upon the notice required for
annual meetings of stockholders or such shorter notice (but in no event shorter
than permitted by law or regulation) as may be acceptable to the holders of a
majority of the total number of shares of the Series ___ Preferred Stock. Any
holder of Series ___ Preferred Stock so designated shall have access to the
Series ___ Preferred Stock books of the Company for the purpose of causing such
meeting to be called pursuant to these provisions.
(vi) Quorum. At any meeting of the holders of the Series ___
Preferred Stock called in accordance with the provisions of this subparagraph
(b) for the election or removal of directors, the presence in person or by proxy
of the holders of a majority of the total number of shares of the Series ___
Preferred Stock and Voting Parity Stock shall be required to constitute a
quorum; in the absence of a quorum, a majority of the holders present in person
or by proxy shall have power to adjourn the meeting from time to time without
notice other than an announcement at the meeting, until a quorum is present.
(c) Voting Rights on Extraordinary Matters. So long as any shares of
Series ___ Preferred Stock is outstanding and unless the consent or approval of
a greater number of shares is then required by law, without first obtaining the
approval of the holders of at least two-thirds of the number of shares of the
Series ___ Preferred Stock at the time outstanding (voting separately as a class
together with the holders of shares (on a one vote per share basis) of Voting
Parity Stock) given in person or by proxy at a meeting at which the holders of
such shares shall be entitled to vote separately as a class, the Company shall
not either directly or indirectly or through merger or consolidation with any
other company[, (i) authorize, create or issue, or increase the authorized or
issued amount, of any class or series of capital stock ranking prior to the
shares of the Series ___ Preferred Stock in rights and preferences or (ii)]
approve any amendment to (or otherwise alter or repeal) its Certificate of
Incorporation (or this resolution) that would materially and adversely change
the specific terms of the Series ___ Preferred Stock. [An amendment that
increases the number of authorized shares of any class or series of Preferred
Stock or authorizes the creation or issuance of other classes or series of
Preferred Stock, in each case ranking junior to the Series ___ Preferred Stock
with respect to the payment of dividends and distribution of assets upon
liquidation, dissolution or winding up, or substitutes the surviving entity in a
merger or consolidation for the Company, shall not be considered to be such an
adverse change.]
(d) One Vote Per Share. In connection with any matter on which holders
of the Series ___ Preferred Stock are entitled to vote as provided in
subparagraphs (b) and (c) above, or any matter on which the holders of the
Series ___ Preferred Stock are entitled to vote as one class or otherwise
pursuant to law or the provisions of the Certificate of Incorporation, each
holder of Series ___ Preferred Stock shall be entitled to one vote for each
share of Series ___ Preferred Stock held by such holder.
[5. Conversion. Shares of the Series ___ Preferred Stock shall be
convertible into Common Stock on the following terms and conditions:
(a) Conversion Right. Subject to and upon compliance with the
provisions of this Section 5, the holder of any shares of Series ___ Preferred
Stock may at such holder's option, at any time or from time to time, convert any
such shares into fully paid and non-assessable shares (calculated to the nearest
1/100 of a share) of Common Stock at the conversion rate, determined as provided
below, in effect on the conversion date. The rate at which shares of Common
Stock shall be delivered upon conversion (the "Conversion Rate") shall be
initially _____ shares of Common Stock for each share of Series ___ Preferred
Stock. The Conversion Rate is subject to
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adjustment as set forth in paragraph (d) of this Section 5. [If any shares of
Series ___ Preferred Stock shall be called for redemption under Section 3(a)
hereof, the right to convert such shares shall terminate and expire at the close
of business on the redemption date.]
(b) Dividends Upon Conversion. No payment or adjustment shall be made
by the Company to any holder of shares of Series ___ Preferred Stock surrendered
for conversion in respect of dividends accrued since the last preceding Dividend
Payment Date on the shares of Series ___ Preferred Stock surrendered for
conversion; provided, however, that if shares of Series ___ Preferred Stock
shall be converted subsequent to any record date with respect to any Dividend
Payment Date and prior to the next such succeeding Dividend Payment Date, the
dividend falling due on such Dividend Payment Date shall be payable on such
Dividend Payment Date notwithstanding such conversion, and such dividend
(whether or not punctually paid or duly provided for) shall be paid to the
person in whose name such shares are registered at the close of business on such
record date [(unless such shares shall have been called for redemption and the
redemption date is prior to such Dividend Payment Date)]. In such event [(unless
the immediately preceding parenthetical phrase is applicable)], the shares of
Series ___ Preferred Stock surrendered for conversion during such period must be
accompanied by payment by the holder of an amount equal to the dividend thereon
which the holder of record is to receive on such Dividend Payment Date.
(c) Method of Conversion.
(i) The surrender of any shares of Series ___ Preferred Stock
for conversion shall be made by the holder thereof by delivering the certificate
or certificates evidencing ownership of such shares with proper endorsement or
instruments of transfer to the Company at the office or agency in the the State
of ________ to be maintained by the Company for that purpose, and such holder
shall give written notice to the Company at that office or agency that he, she
or it elects to convert such shares of Series ___ Preferred Stock in accordance
with the provisions thereof and of this Section 5. That notice must also state
the number of whole shares of Series ___ Preferred Stock and the name or names
(with addresses) in which the certificate or certificates evidencing ownership
of Common Stock to be issued on such conversion shall be issued. In the case of
lost or destroyed certificates evidencing ownership of shares of Series ___
Preferred Stock to be surrendered for conversion, the holder shall submit proof
of loss or destruction and such indemnity and bond as shall be required by the
Company.
(ii) Subject to the provisions of Section 5(f) hereof, every such
notice of election to convert shall constitute a contract between the holder of
such shares of Series ___ Preferred Stock and the Company, whereby such holder
shall be deemed to agree to the conversion on the terms set forth herein.
(iii) As soon as practicable after its receipt of such notice and
the certificate or certificates evidencing ownership of such shares of Series
___ Preferred Stock (and the payment contemplated by the last sentence of
Section 5(b), if applicable), the Company shall issue and shall deliver, at the
office or agency referred to above and to the person for whose account such
shares of Series ___ Preferred Stock were so surrendered, or on his, her or its
written order, a certificate or certificates for the number of full shares of
Common Stock issuable upon the conversion of such shares of Series ___ Preferred
Stock and a check or cash payment (if any) to which such holder is entitled with
respect to fractional shares as determined by the Company, in accordance with
Section 5(e) hereof, at the close of business on the date of conversion.
(iv) The conversion shall be deemed to have been effected on the
date on which the Company has received both such notice and the certificate or
certificates for such shares of Series ___ Preferred Stock (and the payment
contemplated by the last sentence of Section 5(b), if applicable); and the
person or persons in whose name or names any certificate or certificates for
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Common Stock are issuable upon the conversion shall be deemed to have become on
that date the holder or holders of record of the shares represented thereby;
provided, however, that any such surrender on any date when the stock transfer
books of the Company shall be closed shall become effective for all purposes on
the next succeeding day on which such stock transfer books are open, but such
conversion shall be at the Conversion Rate in effect on the date upon which such
surrender occurs.
(d) Adjustments to Conversion Rate. The Conversion Rate shall be
subject to adjustment from time to time as follows:
(i) In case the Company shall at any time (A) declare a dividend
on the Common Stock in shares of its capital stock, (B) subdivide its
outstanding Common Stock, (C) combine the outstanding Common Stock into a
smaller number of shares or (D) issue any shares of its capital stock by
reclassification of the Common Stock (including any such reclassification in
connection with a consolidation or merger in which the Company is the surviving
company), the Conversion Rate in effect on the record date for such dividend or
on the effective date of such subdivision, combination or reclassification shall
be proportionately adjusted so that the holder of any Series ___ Preferred Stock
converted after such time shall be entitled to receive the aggregate number and
kind of shares that, if such Series ___ Preferred Stock had been converted
immediately prior to such time, the holder would have owned upon such conversion
and been entitled to receive by virtue of such dividend, subdivision,
combination or reclassification. Such adjustment shall be made successively
whenever any event listed above shall occur.
(ii) In case the Company shall issue rights or warrants to all
holders of its Common Stock (which rights or warrants are not available on an
equivalent basis to holders of the Series ___ Preferred Stock on conversion)
entitling them to subscribe for or purchase Common Stock at a price per share
less than the current market price per share (as defined in subparagraph (iv) of
this paragraph (d)), at the record date for the determination of stockholders
entitled to receive such rights or warrants, the Conversion Rate shall be
adjusted (subject to the limitations contained in subparagraph (vii) of this
paragraph (d)) by multiplying the Conversion Rate in effect immediately prior to
such record date by a fraction, the numerator of which shall be the number of
shares of Common Stock outstanding on such date of issue plus the number of
additional shares of Common Stock to be offered for subscription or purchase and
the denominator of which shall be the number of shares of Common Stock
outstanding on the date of issue plus the number of shares of Common Stock that
the aggregate offering price of the total number of shares of Common Stock so to
be offered would purchase at such current market price. Such adjustment shall
become effective at the close of business on such record date; provided,
however, to the extent that Common Stock is not delivered after the expiration
of such rights or warrants, the Conversion Rate shall be readjusted (but only
with respect to Series ___ Preferred Stock converted after such expiration) to
the Conversion Rate that would then be in effect had the adjustments made upon
the issuance of such rights or warrants been made upon the basis of delivery of
only the number of shares of Common Stock actually issued and, provided,
further, that, in the case of rights or warrants exercisable for [__] days or
less, the Company may delay delivering any shares of Common Stock based on the
adjusted conversion rate until the expiration of the rights or warrants and, if
it does so, it shall as soon as practical after such expiration make whatever
retroactive delivery is appropriate in light of the number of actual shares of
Common Stock so actually delivered on exercise of such rights or warrants.*
(iii) In case the Company shall distribute to all holders of
Common Stock (including any such distribution made in connection with a
consolidation or merger in which the Company is the surviving entity) evidences
of its indebtedness or assets (including securities but excluding cash dividends
or distributions paid out of retained earnings and dividends payable in Common
Stock) or subscription rights or warrants (excluding those referred to in
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subparagraph (ii) of this paragraph (d)), the Conversion Rate shall be adjusted
(subject to the limitations contained in subparagraph (vii) of this paragraph
(d)) by multiplying the Conversion Rate in effect immediately prior to the
record date for determination of stockholders entitled to receive such
distribution by a fraction, the numerator of which shall be the current market
price per share of Common Stock (as defined in subparagraph (iv) of this
paragraph (d)) on such record date and the denominator of which shall be such
current market price per share of Common Stock, less the fair market value (as
determined by the Board, whose determination shall be conclusive) of the portion
of the evidences of indebtedness or assets or subscription rights or warrants so
to be distributed that are applicable to one share of Common Stock. Such
adjustment shall become effective at the close of business on such record date.
If after the distribution date (the "Distribution Date") for
purposes of distributing to holders of the Common Stock any stockholder
protection, "poison pill" or other similar rights to subscribe for securities of
the Company or any other entity ("Shareholder Rights"), converting holders of
the Series ___ Preferred Stock are not entitled to receive the Shareholder
Rights that would otherwise be attributable (but for the date of conversion) to
the shares of Common Stock received upon such conversion, then adjustment of the
Conversion Rate shall be made under this subparagraph (iii) as if the
Shareholder Rights were then being distributed to holders of the Company's
Common Stock. If such an adjustment is made and the Shareholder Rights are later
[redeemed,] invalidated or terminated, then a corresponding reversing adjustment
shall be made to the Conversion Rate, on an equitable basis, to take account of
such event. However, the Company may elect to make provision with respect to the
Shareholder Rights so that each share of Common Stock issuable upon conversion
of the Series ___ Preferred Stock, whether or not issued after the Distribution
Date for such Shareholder Rights, will be accompanied by the Shareholder Rights
that would otherwise be attributable (but for the date of conversion) to such
shares of Common Stock, in which event the preceding two sentences will not
apply. The foregoing provisions shall be applicable to all such rights plan(s)
of the Company.
(iv) For the purpose of any computation under subparagraphs (ii)
and (iii) of this paragraph (d), the current market price per share of Common
Stock on any record date shall be deemed to be the average of the daily closing
prices for the five consecutive business days selected by the Board commencing
not more than 20 trading days before, and ending not later than, the earlier of
the day in question and the day before the "ex" date with respect to the
issuance or distribution requiring such computation. For this purpose, the term
"'ex' date," when used with respect to any issuance or distribution, means the
first date on which the Common Stock trades regular way on the applicable
exchange or in the applicable market without the right to receive such issuance
or distribution. The closing price for each date shall be the reported last sale
price regular way or, in case no such reported sale takes place on such day, the
average of the
(v) In the case of any (a) consolidation or merger of the Company
with or into any entity (other than a consolidation or merger that does not
result in any reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock of the Company), (b) sale, transfer, lease or
conveyance of all or substantially all of the assets of the Company or (c)
reclassification, capital reorganization or change of the Common Stock (other
than solely a change in par value, or from par value to no par value), each
holder of a share of Series ___ Preferred Stock then outstanding shall have the
right thereafter to convert such share only into the kind and amount of
securities, cash and other property receivable upon such consolidation, merger,
sale, transfer, capital reorganization or reclassification by a holder of the
number of shares of Common Stock of the Company into which such shares of Series
___ Preferred Stock would have been converted immediately prior to such
consolidation, merger, sale, transfer, capital reorganization or
reclassification, assuming (x) such holder of Common Stock of the Company is not
an entity with which the Company consolidated or into which the Company merged
or which
________________________
* Any other or alternative anti-dilution provisions as are agreed to (whether
current quotient, market price or other (see Sections 12.06 - 12.10 of the
form of Senior Subordinated Indenture, which is Exhibit 4.1 to this
Registration Statement)) may be added here and the subparagraphs in this
Section renumbered, as appropriate.
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merged into the Company or to which such sale or transfer was made, as the case
may be ("constituent entity"), or an affiliate of a constituent entity, and (y)
such holder of Common Stock failed to exercise his, her or its rights of
election, if any, as to the kind or amount of securities, cash and other
property receivable upon such consolidation, merger, sale or transfer (provided
that if the kind or amount of securities, cash and other property receivable
upon such consolidation, merger, sale or transfer is not the same for each share
of Common Stock of the Company held immediately prior to such consolidation,
merger, sale or transfer by other than a constituent entity or an affiliate
thereof ("non-electing share"), then, for the purpose of this subsection (v),
the kind and amount of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer by each non-electing share shall be
deemed to be the kind and amount so receivable per share by a plurality of the
non-electing shares). If necessary, appropriate adjustment shall be made in the
application of the provisions set forth herein with respect to the rights and
interests thereafter of the holders of shares of Series ___ Preferred Stock, to
the end that the provisions set forth herein shall thereafter correspondingly be
made applicable, as nearly as may reasonably be, in relation to any shares of
stock or other securities or property thereafter deliverable on the conversion
of the shares. The above provisions shall similarly apply to successive
consolidations, mergers, sales, transfers, capital reorganizations and
reclassifications. The Company shall not effect any such consolidation, merger,
sale or transfer, unless prior to or simultaneously with the consummation
thereof the successor company or entity (if other than the Company) resulting
from such consolidation, merger, sale or transfer shall assume, by written
instrument, the obligation to deliver to the holder of each share of Series ___
Preferred Stock such shares of stock, securities or assets as, in accordance
with the foregoing provisions, such holder may be entitled to receive under this
Section 5(d).
(vi) The Company may make such increases in the Conversion Rate,
in addition to those required by subparagraphs (i) through (v) of this Section
5(d), as it considers to be advisable in order that any event treated for
federal income tax purposes as a dividend of stock or stock rights shall not be
taxable to the recipients.
(vii) No adjustment in the Conversion Rate will be made for the
issuance of shares of capital stock to employees pursuant to the Company's or
any of its subsidiaries' stock option, stock ownership or other benefit plans.
No adjustment will be required to be made in the Conversion Rate until
cumulative adjustments require an adjustment of at least 1% of such Conversion
Rate, but rather such cumulative adjustment shall be carried forward and made
when such 1% threshhold is reached or exceeded.
(e) Fractional Shares. No fractional shares or scrip representing
fractional shares shall be issued upon the conversion of any shares of Series
___ Preferred Stock, but the holder thereof will receive in cash an amount equal
to the value of such fractional share of Common Stock based on the current
market price (as defined in subparagraph (iv) of Section 5(d)). If more than one
share of Series ___ Preferred Stock is surrendered for conversion at one time by
the same holder, the number of full shares issuable upon conversion thereof
shall be computed on the basis of the aggregate number of such shares so
surrendered.
(f) Payment of Taxes. The Company shall pay any tax in respect of the
issuance of stock certificates on conversion of shares of Series __ Preferred
Stock. The Company shall not, however, be required to pay any tax that may be
payable in respect of any transfer involved in the issuance and delivery of
stock in any name other than that of the holder of the shares converted, and the
Company shall not be required to issue or deliver any such stock certificate
unless and until the person or persons requesting the issuance hereof shall have
paid to the Company the amount of any such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
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(g) Common Stock Reserved for Conversion. The Company shall at all
times reserve and keep available out of its authorized and unissued Common Stock
the full number of shares of Common Stock deliverable upon the conversion of all
outstanding shares of Series ___ Preferred Stock and shall take all such action
as may be required from time to time in order that it may validly and legally
issue fully paid and non-assessable shares of Common Stock upon conversion of
the Series ___ Preferred Stock.
(h) Notice. If:
(w) the Company shall declare a dividend (or any other
distribution) on its Common Stock (other than a cash dividend
payable out of retained earnings); or
(x) the Company shall authorize the issuance to holders of its
Common Stock of rights or warrants to subscribe for or
purchase Common Stock; or
(y) of any reclassification of the Common Stock of the Company
(other than a subdivision or combination of its outstanding
Common Stock, or a change in par value, or from par value to
no par value, or from no par value to par value) or of any
consolidation or merger to which the Company is a party or of
the sale or transfer of all or substantially all of the
assets of the Company and for which approval of any
stockholders of the Company is required; or
(z) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then, and in each event, the Company shall cause to be mailed to each holder of
Series ___ Preferred Stock, at his, her or its address as the same shall appear
on the books of the Company, as promptly as possible but in any event at least
[15] days prior to the applicable date hereinafter specified, a notice stating
(A) the date on which a record is to be taken for the purpose of such dividend,
distribution, rights or warrants, or, if a record is not to be taken, the date
as of which the holders of Common Stock of record to be entitled to such
dividend, distribution or rights are to be determined, and the nature and amount
of such dividend, distribution, rights or warrants or (B) the date on which such
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up is expected to become effective, and the date as of
which it is expected that holders of Common Stock of record shall be entitled to
exchange their Common Stock for securities or other property deliverable upon
such reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up.
(i) "Common Stock". For the purposes of this Section 5, "Common Stock"
means stock of the Company of any class, whether now or hereafter authorized,
that has the right to participate in the distribution of either earnings or
assets of the Company without limit as to the amount or percentage, including,
without limitation, the Common Stock. In case by reason of the operation of
paragraph (d) of this Section 5, the shares of Series ___ Preferred Stock shall
be convertible into any other shares of stock or other securities or property of
the Company or of any other company, any reference herein to the conversion of
shares of Series ___ Preferred Stock pursuant to this Section 5 shall be deemed
to refer to and include the conversion of shares of Series ___ Preferred Stock
into such other shares of stock or other securities or property.]
6. [Exchange.
(a) Subject to the other provisions set forth in this Section 6, the
Series __ Preferred Stock shall be exchangeable [in whole, but not] in part, at
the option of the Company, [on any Dividend Payment Date] beginning _________,
199_, for the [identify Debt Securities of the
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Company] as set forth below. [Holders of outstanding shares of Series __
Preferred Stock will be entitled to receive $_____ principal amount of [identify
Debt Securities] in exchange for each share of Preferred Stock held by them at
the time of exchange; provided that the [identify Debt Securities] will be
issuable in denominations of $1,000 and integral multiples thereof. If the
exchange results in an amount of [identify Debt Securities] that is not an
integral multiple of $1,000, the amount in excess of the closest integral
multiple of $1,000 will be paid in cash by the Company.
(b) The Company will mail to each record holder of the Series __
Preferred Stock [whose Preferred Stock is to be Exchanged] written notice of its
intention to exchange the Preferred Stock for the [identify Debt Securities] no
less than 30 nor more than 60 days prior to the date of the exchange (the
"Exchange Date"). The notice shall specify the effective date of the exchange
and the place where certificates for shares of Series __ Preferred Stock are to
be surrendered for [identify Debt Securities] and shall state that dividends on
[such] Series __ Preferred Stock will cease to accrue on the Exchange Date.
Prior to giving notice of intention to exchange, the Company shall have
executed and delivered to a bank or trust company selected by the Company to act
as Trustee with respect to the [identify Debt Securities], which Trustee shall
meet the eligibility requirements of the Section 310(a) of the Trust Indenture
Act of 1939 as then in effect, and which Trustee shall have executed and
delivered to the Company an Indenture [substantially in the form filed as an
exhibit to the [identify Registration Statement]]; with such changes as may be
required by law, stock exchange rule, NASDAQ National Market System rule or
customary usage].
(c) If the Company has caused [identify Debt Securities] to be
authenticated on or prior to the Exchange Date and has complied with the other
provisions of this Section 6, then, notwithstanding that any certificates for
shares of Series __ Preferred Stock called for Exchange have not been
surrendered for exchange, on the Exchange Date dividends shall cease to accrue
on [the] [such] Series __ Preferred Stock and at the close of business on the
Exchange Date the holders of [the] [such] Series __ Preferred Stock shall cease
to be stockholders with respect to [the] [such] [Series __] Preferred Stock and
shall have no interest in or other claims against the Company by virtue thereof
and shall have no voting or other rights with respect to [the] [such] Series __
Preferred Stock, except the right to receive the [identify Debt Securities]
issuable upon such exchange and the right to accrued and unpaid dividends to and
including the Exchange Date, without interest thereon, upon surrender (and
endorsement, if required by the Company) of their certificates, and the shares
evidenced thereby shall no longer be deemed outstanding for any purpose.
The Company will cause the [identify Debt Securities] to be
authenticated on or before the Exchange Date.
[(d) Notwithstanding the foregoing, if notice of exchange has been
given pursuant to this Section 6 and any holder of shares of Preferred Stock
has, prior to the close of business on the Exchange Date, give written notice to
the Company pursuant to Section 5 of the conversion of any or all of the shares
held by the holder (accompanied by a certificate or certificates for such
shares, duly endorsed or assigned to the Company), then the exchange shall not
become effective as to the shares to be converted and the conversion shall
become effective as provided in Section 5.]
(e) The [identify Debt Securities] will be delivered to the persons
entitled thereto upon surrender to the Company or its agent appointed for that
purpose of the certificates for the shares of Series __ Preferred Stock being
exchanged therefor.
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(f) Notwithstanding the other provisions of this Section 6, if on the
Exchange Date the Company has not paid in full all accrued and unpaid dividends
on the Series __ Preferred Stock (or set aside a sum therefor), the Company may
not exchange [the] [any] Series __ Preferred Stock for [identify Debt
Securities] and any notice previously given pursuant to this Section 6 shall be
of no effect.
(g) Prior to the Exchange Date, the Company will comply with any
applicable securities and blue sky laws with respect to the exchange of the
Series __ Preferred Stock for [identify Debt Securities].
7. [No] Sinking Fund. [No sinking fund will be established for the
retirement or redemption of shares of Series ___ Preferred Stock.] [If sinking
fund provisions are to be included, they will be inserted here.]
8. Liquidation Rights; Priority.
(a) In the event of any liquidation, dissolution or winding up of the
affairs of the Company, whether voluntary or involuntary, after payment or
provision for payment of the debts and other liabilities of the Company, the
holders of shares of the Series ___ Preferred Stock shall be entitled to
receive, out of the assets of the Company, whether such assets are capital or
surplus and whether or not any dividends as such are declared, $_____ per share
[plus an amount equal to all accrued and unpaid dividends for the [then-current]
[plus all prior] dividend period[s], and no more], before any distribution shall
be made to the holders of the Common Stock or any other class of stock or series
thereof ranking junior to the Series ___ Preferred Stock with respect to the
distribution of assets. Unless specifically designated as junior or senior to
the Series ___ Preferred Stock with respect to the distribution of assets, all
other series or classes of Preferred Stock of the Company shall rank on a parity
with the Series ___ Preferred Stock with respect to the distribution of assets.
(b) [Nothing contained in this Section 8 shall be deemed to prevent
redemption of shares of the Series ___ Preferred Stock by the Company in the
manner provided in Section 3.] Neither the merger nor consolidation of the
Company into or with any other company, nor the merger or consolidation of any
other company into or with the Company, nor a sale, transfer or lease of all or
any part of the assets of the Company, shall be deemed to be a liquidation,
dissolution or winding up of the Company within the meaning of this Section 8.
(c) Written notice of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Company, stating a payment date
and the place where the distributable amounts shall be payable and containing a
statement of or reference to the conversion right set forth in Section 5 hereof,
shall be given by mail, postage prepaid, no less than 30 days prior to the
payment date stated therein, to the holders of record of the Series ___
Preferred Stock at their respective addresses as the same shall appear on the
books of the Company.
(d) If the amounts available for distribution with respect to the
Series ___ Preferred Stock and all other outstanding stock of the Company
ranking on a parity with the Series ___ Preferred Stock upon liquidation are not
sufficient to satisfy the full liquidation rights of all the outstanding Series
___ Preferred Stock and stock ranking on a parity therewith, then the holders of
each series of such stock will share ratably in any such distribution of assets
in proportion to the full respective preferential amount (which in the case of
the Series __ Preferred Stock shall mean the amounts specified in Section 8(a)
and in the case of any other series of preferred stock may include accumulated
dividends if contemplated by such series) to which they are entitled.
9. Record Holders. The Company and the Transfer Agent may deem and
treat the record holder of any shares of Series __ Preferred Stock as the true
and lawful owner thereof for
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all purposes, and neither the Company nor the Transfer Agent shall be affected
by any notice to the contrary.
10. Notices. Except as may otherwise by provided for herein, all
notices referred to herein shall be in writing, and all notices hereunder shall
be deemed to have been given upon receipt, in the case of a notice of conversion
given to the Company as contemplated in Section 5(c) hereof, or, in all other
cases, 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) with postage prepaid, addressed: if to the Company, to its offices
at 6001 24th Street, Phoenix, Arizona 85016, Attention: General Counsel or to an
agent of the Company designated as permitted by this Certificate, or, if to any
holder of the Series __ Preferred Stock, to such holder at the address of such
holder of the Series __ Preferred Stock as listed in the stock record books of
the Company (which may include the records of any transfer agent for the Series
__ Preferred Stock); or to such other address as the Company or holder, as the
case may be, shall have designated by notice similarly given.]
In witness whereof, Del Webb Corporation has caused this Certificate of
Designations [complete title of certificate to be continued] to be executed by
________, its [Vice] President, and by ________, its [Assistant] Secretary, and
its corporate seal to be affixed hereto, this _____ day of ____________, 199_.
DEL WEBB CORPORATION
By:___________________________
Name:____________________
Title: [Vice] President
(Corporate Seal)
ATTEST:
By:___________________________
Name:____________________
Title: [Assistant] Secretary
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