CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS OF
SERIES A PARTICIPATING PREFERRED STOCK
OF
SUNBEAM CORPORATION
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
We, Paul E. Shapiro, Executive Vice President and Chief
Administrative Officer, and Steven R. Isko, Senior Vice President and
General Counsel, of Sunbeam Corporation (the "Corporation"), a corporation
organized and existing under the General Corporation Law of the State of
Delaware (the "DGCL"), pursuant to Section 151(g) thereof and in accordance
with the provisions of Section 103 thereof, DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of
Directors (the "Board") by the Certificate of Incorporation of the
Corporation, which authority the Board conferred upon the Executive
Committee thereof (the "Executive Committee") pursuant to and in accordance
with Section 141(c)(2) of the DGCL, on [_____], 2000, the Executive
Committee adopted the following resolution creating a series of [_____]
shares of Preferred Stock designated as Series A Participating Preferred
Stock:
RESOLVED, that pursuant to the authority vested in the
Executive Committee of the Board of Directors of this Corporation in
accordance with the provisions of its Certificate of Incorporation and the
General Corporation Law of the State of Delaware, a series of Preferred
Stock of the Corporation be and it hereby is created, and that the
designation and amount thereof and the voting powers, preferences and
relative, participating, optional and other special rights of the shares of
such series, and the qualifications, limitations or restrictions thereof
are as follows:
Section 1. Designation and Amount. The shares of such series
shall be designated as "Series A Participating Preferred Stock" and the
number of shares constituting such series shall be 4.5 million, each of
which shall have a stated value of $3.26 (the "Stated Value").
Section 2. Dividends and Distributions.
(A) The holders of outstanding shares of Series A
Participating Preferred Stock shall be entitled to receive, when, as and if
declared by the Board of Directors out of funds legally available for the
purpose, in preference to any dividends on (i) the Common Stock, par value
$0.01 per share, of the Corporation (the "Common Stock") or (ii) any other
class of capital stock of the Corporation ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series A
Participating Preferred Stock, cash dividends in an amount per annum per
share equal to 1% of the Stated Value. Such dividends shall accrue and be
payable at the earlier of (i) the time any liquidating distribution is made
to the holders of the Series A Participating Preferred Stock, (ii) any time
at which all of the outstanding shares of Series A Participating Preferred
Stock are exchanged for shares of Common Stock and (iii) the time of any
consolidation, merger, combination or other transaction contemplated by
Section 7 hereof.
(B) In case the Corporation shall at any time or from time
to time declare a dividend (including cash dividends) or other distribution
on the Common Stock (other than a dividend payable in shares of Common
Stock, which is governed by Section 4(A) hereof), the holders of shares of
Series A Participating Preferred Stock shall be entitled to receive from
the Corporation, with respect to each share of Series A Participating
Preferred Stock held, the same dividend or other distribution received by a
holder of one (1) share of Common Stock.
(C) The Corporation shall declare a dividend or distribution
on the Series A Participating Preferred Stock as provided in Paragraph (B)
at the same time as it declares a dividend or distribution on the Common
Stock (other than a dividend payable in shares of Common Stock, which is
governed by Section 4(A) hereof).
(D) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Participating Preferred Stock from the date
of issuance by the Corporation of such shares of Series A Participating
Preferred Stock. Accrued but unpaid dividends shall not bear interest.
Dividends paid on the shares of Series A Participating Preferred Stock in
an amount less than the total amount of such dividends at the time accrued
and payable on such shares shall be allocated pro rata on a share-by-share
basis among all such shares at the time outstanding. The Board of Directors
may fix a record date for the determination of holders of shares of Series
A Participating Preferred Stock entitled to receive payment of a dividend
or distribution declared thereon, which record date shall be no more than
30 days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A
Participating Preferred Stock shall have the following voting rights:
(A) Each share of Series A Participating Preferred Stock
shall entitle the holder thereof to one (1) vote on all matters submitted
to a vote of the stockholders of the Corporation.
(B) Except as otherwise provided by law, the holders of
shares of Series A Participating Preferred Stock and the holders of shares
of Common Stock shall vote together as one class on all matters submitted
to a vote of stockholders of the Corporation.
(C) Except as otherwise required by law, holders of Series A
Participating Preferred Stock shall have no special voting rights and their
consent shall not be required (except to the extent they are entitled to
vote with holders of Common Stock as set forth herein) for the taking of
any corporate action.
Section 4. Certain Restrictions.
(A) As long as any shares of Series A Participating
Preferred Stock are outstanding, the Corporation shall not issue any shares
of Common Stock as a dividend or distribution on or with respect to, or in
connection with a subdivision or split of, any outstanding shares of Common
Stock unless, at the same time, the Corporation shall issue additional
shares of Series A Participating Preferred Stock to the holders of the
outstanding shares of Series A Participating Preferred Stock such that the
percentage of the total number of outstanding shares of capital stock of
the Corporation (both Preferred Stock and Common Stock) represented by the
outstanding shares of Series A Participating Preferred Stock is the same
after such issuance as it was before such issuance.
(B) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Participating Preferred Stock as
provided in Section 2 hereof are in arrears, thereafter and until all
accrued and unpaid dividends and distributions, whether or not declared, on
the shares of Series A Participating Preferred Stock outstanding shall have
been paid in full, the Corporation shall not:
(i) declare or pay dividends on, make any
other distributions on, or redeem or purchase or otherwise acquire
for consideration any shares of the Corporation's capital stock
ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Participating Preferred
Stock;
(ii) declare or pay dividends on or make any
other distributions on any shares of the Corporation's capital
stock ranking pari passu (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A
Participating Preferred Stock, except dividends paid ratably on the
Series A Participating Preferred Stock and all such pari passu
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; or
(iii) redeem or purchase or otherwise acquire
for consideration shares of any stock ranking pari passu (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series A Participating Preferred Stock, provided that the
Corporation may at any time redeem, purchase or otherwise acquire
shares of any such pari passu stock in exchange for shares of any
capital stock of the Corporation ranking junior (either as to
dividends or upon dissolution, liquidation or winding up) to the
Series A Participating Preferred Stock.
(C) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares
of capital stock of the Corporation unless the Corporation could, under
Paragraph (B) of this Section 4, purchase or otherwise acquire such shares
at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A
Participating Preferred Stock 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, subject to the
conditions and restrictions on issuance set forth herein.
Section 6. Liquidation, Dissolution or Winding Up. Upon any
liquidation (voluntary or otherwise), dissolution or winding up of the
Corporation, no distribution shall be made to the holders of shares of the
Corporation's capital stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Participating
Preferred Stock unless, prior thereto, the holders of shares of Series A
Participating Preferred Stock shall have received (a) an amount per share
equal to the Stated Value plus (b) an amount per share equal to the accrued
and unpaid dividends and distributions with respect to such share, whether
or not declared, to the date of such payment (collectively, the "Series A
Liquidation Preference"). Following the payment of the full amount of the
Series A Liquidation Preference in respect of all outstanding shares of
Series A Participating Preferred Stock, holders of shares of Common Stock
shall be entitled to receive an amount per share of Common Stock equal to
the Stated Value. Following payment of the amounts provided for in the
immediately preceding sentence in respect of all outstanding shares of
Common Stock, holders of shares of Series A Participating Preferred Stock
and holders of shares of Common Stock shall receive their ratable and
proportionate share of the remaining assets to be distributed, with each
outstanding share of Series A Participating Preferred Stock and each share
of Common Stock receiving the same amount.
Section 7. Consolidation, Merger, etc. In case the
Corporation shall enter into any consolidation, merger, combination or
other transaction in which the shares of Common Stock are exchanged for or
changed into other stock or securities, cash and/or any other property,
then in any such case the shares of Series A Participating Preferred Stock
shall at the same time be similarly exchanged or changed in an amount per
share equal to the aggregate amount of stock, securities, cash and/or any
other property (payable in kind), as the case may be, into which or for
which each share of Common Stock is changed or exchanged and the holders of
the Series A Participating Preferred Stock shall be paid the full amount of
all accrued and unpaid dividends thereon, as provided in Section 2(A)
hereof.
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IN WITNESS WHEREOF, we have executed and subscribed this
Certificate and do affirm the foregoing as true under the penalties of
perjury this [__] day of [_____], 2000.
_______________________________________
Paul E. Shapiro
Executive Vice President and
Chief Administrative Officer
Attest:
__________________________________
Steven R. Isko
Vice President and General Counsel