EXHIBIT 3.3
AMENDED AND RESTATED CERTIFICATE OF DESIGNATION
OF
SERIES D PARTICIPATING PREFERRED STOCK
OF
MCDERMOTT INTERNATIONAL, INC.
MCDERMOTT INTERNATIONAL, INC., a corporation organized and
existing under the Republic of Panama, in accordance with the provisions of
Section III, Article 20 of Law 32 of February 27, 1927 on Corporations of the
Republic of Panama, DOES HEREBY CERTIFY:
That pursuant to the authority vested in the Board of
Directors in accordance with the provisions of the Articles of Incorporation, as
amended, of the said Corporation, the said Board of Directors on October 17,
2001 adopted the following resolution amending the series of Preferred Stock of
the said corporation designated as "Series D Participating Preferred Stock":
RESOLVED, that, pursuant to the authority vested in the Board
of Directors of this Corporation in accordance with the provisions of
the Articles of Incorporation, as amended, of this Corporation (the
"Articles of Incorporation"), the previous designation of the series of
Preferred Stock, par value $1 per share, of the Corporation designated
as "Series D Participating Preferred Stock," and the number of shares
thereof and the voting and other powers, preferences and relative,
participating, optional or other rights of the shares of such series
and the qualifications, limitations and restrictions thereof, as set
forth in the Certificate of Designation filed with the Public Registry
office by Notarial Document No. 3 of January 2, 1996, be and they
hereby are amended and restated as follows:
SERIES D PARTICIPATING PREFERRED STOCK
1. Designation and Amount. There shall be a series of
Preferred Stock that shall be designated as "Series D Participating Preferred
Stock," and the number of shares constituting such series shall be 150,000. To
the extent not prohibited by the Articles of Incorporation or other provisions
of applicable law, such number of shares may be increased or decreased by
resolution of the Board of Directors; provided, however, that no decrease shall
reduce the number of shares of Series D Participating Preferred Stock to less
than the number of shares then issued and outstanding plus the number of shares
issuable upon exercise of outstanding rights, options or warrants or upon
conversion of outstanding securities issued by the Corporation.
2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders of
any shares of any series of Preferred Stock ranking prior and superior to the
shares of Series D Participating Preferred Stock with respect to dividends, the
holders of shares of Series D Participating Preferred Stock, in preference to
the holders of shares of any class or series of stock of the Corporation ranking
junior to the Series D 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, quarterly dividends payable in cash on March 31, June
30, September 30 and December 31 in each year (each such date being referred to
herein as a ("Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a share or fraction
of a share of Series D Participating Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the greater of (a) $10.00 or (b) the
Adjustment Number (as defined below) times the aggregate per share amount of all
cash dividends, and the Adjustment Number times the aggregate per share amount
(payable in kind) of all non-cash dividends or other distributions other than a
dividend payable in shares of Common Stock or a subdivision of the outstanding
shares of Common Stock (by reclassification or otherwise), declared on the
Common Stock, par value $1 per share, of the Corporation (the "Common Stock")
since the immediately preceding Quarterly Dividend Payment Date, or, with
respect to the first Quarterly Dividend Payment Date, since the first issuance
of any share or fraction of a share of Series D Participating Preferred Stock.
The
"Adjustment Number" shall initially be 1000. In the event the Corporation shall
at any time after October 17, 2001 (the "Rights Declaration Date") (i) declare
any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide
the outstanding Common Stock or (iii) combine the outstanding Common Stock into
a smaller number of shares, then in each such case the Adjustment Number in
effect immediately prior to such event shall be adjusted by multiplying such
Adjustment Number by a fraction the numerator of which is the number of shares
of Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding immediately
prior to such event.
(B) The Corporation shall declare a dividend or distribution
on the Series D Participating Preferred Stock as provided in paragraph (A) above
at the same time it declares a dividend or distribution on the Common Stock as
to which the Series D Participating Preferred Stock is entitled to receive a
participating dividend; provided that, in the event no dividend or distribution
shall have been declared on the Common Stock during the period between any
Quarterly Dividend Payment Date and the next subsequent Quarterly Dividend
Payment Date, a dividend of $10.00 per share on the Series D Participating
Preferred Stock shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series D Participating Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares of Series
D Participating Preferred Stock, unless the date of issue of such shares is
prior to the record date for the first Quarterly Dividend Payment Date, in which
case dividends on such shares shall begin to accrue from the date of issue of
such shares, or unless the date of issue is a Quarterly Dividend Payment Date or
is a date after the record date for the determination of holders of shares of
Series D Participating Preferred Stock entitled to receive a quarterly dividend
and before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends
paid on the shares of Series D 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 D Participating Preferred Stock
entitled to receive payment of a dividend or distribution declared thereon,
which record date shall be no more than 60 and no less than 10 days prior to the
date fixed for the payment thereof. Other than any participating dividends to
which the Series D Participating Preferred Stock is entitled, the Corporation
may not declare a dividend on the Series D Participating Preferred Stock in
respect of any dividend period unless the Corporation declares or has declared
on all shares of Preferred Stock of each other series at the time outstanding
like dividends for all dividend periods coinciding with or ending before such
dividend period, ratably in proportion to the respective annual dividend rates
fixed therefor.
3. Voting Rights. The holders of shares of Series D
Participating Preferred Stock shall have the following voting rights:
(A) Each share of Series D Participating Preferred Stock shall
entitle the holder thereof to a number of votes equal to the Adjustment Number
on all matters submitted to a vote of the stockholders of the Corporation.
(B) Except as otherwise provided herein, in the Articles of
Incorporation or by law, the holders of shares of Series D Participating
Preferred Stock and any other class or series entitled to vote with the Common
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) (i) If at any time dividends on any Series D Participating
Preferred Stock shall be in arrears in an amount equal to six quarterly
dividends thereon, the occurrence of such contingency shall mark the beginning
of a period (herein called a "default period") that shall extend until such time
when all accrued and unpaid dividends for all previous quarterly dividend
periods and for the current quarterly dividend period on all
shares of Series D Participating Preferred Stock then outstanding shall have
been declared and paid in full. During each default period, (1) the number of
Directors shall be increased by two, effective as of the time of election of
such Directors as herein provided, and (2) the holders of Preferred Stock
(including holders of the Series D Participating Preferred Stock) upon which
these or like voting rights have been conferred and are exercisable (the "Voting
Preferred Stock") with dividends in arrears in an amount equal to six quarterly
dividends thereon, voting as a class, irrespective of series, shall have the
right to elect such two Directors.
(ii) During any default period, such voting right of the
holders of Series D Participating Preferred Stock may be exercised initially at
a special meeting called pursuant to subparagraph (iii) of this Section 3(C) or
at any annual meeting of stockholders, and thereafter at annual meetings of
stockholders, provided that such voting right shall not be exercised unless the
holders of at least one-third in number of the shares of Voting Preferred Stock
outstanding shall be present in person or by proxy. The absence of a quorum of
the holders of Common Stock shall not affect the exercise by the holders of
Voting Preferred Stock of such voting right. In the absence of a quorum by the
holders of Voting Preferred Stock, a majority of the holders present in person
or by proxy shall have the power to adjourn the meeting for the election of
directors which they are entitled to elect from time to time without notice
other than announcement at the meeting until a quorum shall be present. At any
meeting at which the holders of Voting Preferred Stock shall exercise such
voting right initially during an existing default period, they shall have the
right, voting as a class, to elect Directors to fill such vacancies, if any, in
the Board of Directors as may then exist up to two Directors or, if such right
is exercised at an annual meeting, to elect two Directors. If the number that
may be so elected at any special meeting does not amount to the required number,
the holders of the Voting Preferred Stock shall, to the extent not inconsistent
with the Articles of Incorporation, have the right to make such increase in the
number of Directors as shall be necessary to permit the election by them of the
required number. After the holders of the Voting Preferred Stock shall have
exercised their right to elect Directors in any default period and during the
continuance of such period, the number of Directors shall not be increased or
decreased except by vote of the holders of Voting Preferred Stock as herein
provided or pursuant to the rights of any equity securities ranking senior to or
pari passu with the Series D Participating Preferred Stock.
(iii) Unless the holders of Voting Preferred Stock shall,
during an existing default period, have previously exercised their right to
elect Directors, any stockholder or stockholders of record owning in the
aggregate not less than ten percent of the total number of shares of Voting
Preferred Stock outstanding, irrespective of series, may request, in writing
addressed to the Secretary of the Corporation, the calling of a special meeting
of the holders of Voting Preferred Stock and of any other class or classes of
stock having voting power, which meeting shall thereupon be called by a proper
officer of the Corporation. Notice of such meeting and of any annual meeting at
which holders of Voting Preferred Stock are entitled to vote pursuant to this
paragraph (C)(iii) shall be given to each holder of record having voting power
by mailing a copy of such notice to him at his last address as the same appears
on the books of the Corporation. Such meeting shall be held at the earliest
practicable date at such place as may be specified in the notice of the meeting.
If such meeting is not called by a proper officer of the Corporation within 20
days after personal service of the written request upon the Secretary of the
Corporation, or within 20 days after depositing such request by registered or
certified mail addressed to the Secretary of the Corporation at its principal
office, then the stockholders of record owning in the aggregate not less than
ten percent of the total number of shares of Voting Preferred Stock outstanding,
irrespective of series, may designate in writing one of such stockholders to
call such meeting at the expense of the Corporation, and such meeting may be
called by such person so designated upon the notice required for annual meetings
of stockholders and shall be held at the place for the holding of annual
meetings of stockholders of the Corporation. Any holder of Voting Preferred
Stock so designated shall have access to the stock books of the Corporation for
the purpose of causing meetings of the stockholders to be called pursuant to
these provisions. Notwithstanding the provisions of this paragraph (C)(iii), no
such special meeting shall be called during the period within 90 days
immediately preceding the date fixed for an annual meeting of the stockholders.
(iv) In any default period, after the holders of Voting
Preferred Stock shall have exercised their right to elect Directors voting as a
class, (x) the Directors so elected by the holders of Voting Preferred Stock
shall continue in office until their successors shall have been elected by such
holders or until the expiration of the default period, and (y) any vacancy in
the Board of Directors may (except as provided in paragraph (C)(ii) of this
Section 3) be filled by vote of a majority of the remaining Directors (even if
only a single director) theretofore elected by the holders of the class or
classes of stock which elected the Director whose office shall have become
vacant. References in this paragraph (C) to Directors elected by the holders of
a particular class or classes of stock shall include Directors elected by such
Directors to fill vacancies as provided in clause (y) of the foregoing sentence.
(v) Immediately upon the expiration of a default period, (x)
the right of the holders of Voting Preferred Stock as a class to elect Directors
shall cease, (y) the term of any Directors elected by the holders of Voting
Preferred Stock as a class shall terminate and (z) the number of Directors shall
be such number as may be provided for in the Articles of Incorporation or
By-Laws irrespective of any increase made pursuant to the provisions of
paragraph (C) of this Section 3 (such number being subject, however, to change
thereafter in any manner provided by law or in the Articles of Incorporation or
By-Laws of the Corporation). Any vacancies in the Board of Directors effected by
the provisions of clauses (y) and (z) in the preceding sentence may be filled in
the manner provided in the Articles of Incorporation or By-Laws of the
Corporation.
(D) Except as set forth herein, holders of Series D
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 taking any corporate
action.
4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series D Participating Preferred Stock as provided
in Section 2 are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on shares of Series D
Participating Preferred Stock outstanding shall have been declared or set apart
for payment or paid in full, the Corporation shall not redeem or purchase or
otherwise acquire for consideration any shares of Series D Participating
Preferred Stock, or any shares of stock ranking on a parity with the Series D
Participating Preferred Stock, (i) without the affirmative vote or consent of
the holders of at least 66 2/3% of the Preferred Stock at the time outstanding,
regardless of series, given in person or by proxy, either in writing or by
resolution adopted at an annual or special meeting called for such purpose, at
which the holders of the Preferred Stock, regardless of series, shall vote
separately as a class; provided, however, that such consent shall not be
required in the event that the redemption (x) is part of a redemption by the
Corporation of all Preferred Stock outstanding at such time or (y) is carried
out pursuant to the terms of Section 16 of the Articles of Incorporation (or
such other section of the Articles of Incorporation as may contain such terms),
and (ii) except in accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors) to all holders of
Preferred Stock of all series, 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, shall determine in good faith will
result in fair and equitable treatment among the respective series.
(B) So long as any Series D Participating Preferred Stock is
outstanding, the Corporation shall not declare or pay or set apart for payment
any dividends (other than dividends payable in stock ranking junior to the
Series D Participating Preferred Stock) on, make any other distributions on, or
redeem or purchase or otherwise acquire for consideration any shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series D Participating Preferred Stock, if at the time of
making such declaration, payment, distribution, redemption or purchase, the
Corporation is in arrears with respect to any dividend payable on, or any
obligation to retire shares of Series D Participating Preferred Stock, provided
that, notwithstanding the foregoing, the Corporation may at any time redeem,
purchase or otherwise acquire
shares of stock of any such junior class in exchange for, or out of the net cash
proceeds from the sale of, other shares of stock of any junior class.
(C) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares of
stock of the Corporation unless the Corporation could, under paragraphs (A) or
(B) of this Section 4, purchase or otherwise acquire such shares at such time
and in such manner.
5. Reacquired Shares. Any shares of Series D Participating
Preferred Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled promptly after the acquisition thereof.
All such shares shall upon their retirement and cancellation become authorized
but unissued shares of Preferred Stock and may be reissued as Series D
Participating Preferred Stock or as part of any other series of Preferred Stock
created or to be created by resolution or resolutions of the Board of Directors,
subject to any conditions and restrictions on issuance set forth herein.
6. Liquidation, Dissolution or Winding Up.
(A) Upon any liquidation (voluntary or otherwise), dissolution
or winding up of the Corporation, no distribution shall be made to the holders
of shares of stock ranking junior (upon liquidation, dissolution or winding up)
to the Series D Participating Preferred Stock unless, prior thereto, the holders
of shares of Series D Participating Preferred Stock shall have received $1000
per share, plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such payment (the
"Series D Participating Preferred Stock Liquidation Preference"). Following the
payment of the full amount of the Series D Participating Preferred Stock
Liquidation Preference, no additional distributions shall be made to the holders
of shares of Series D Participating Preferred Stock unless, prior thereto, the
holders of shares of Common Stock shall have received an amount per share (the
"Common Adjustment") equal to the quotient obtained by dividing (i) the Series D
Participating Preferred Stock Liquidation Preference by (ii) the Adjustment
Number. Following the payment of the full amount of the Series D Participating
Preferred Stock Liquidation Preference and the Common Adjustment in respect of
all outstanding shares of Series D Participating Preferred Stock and Common
Stock, respectively, holders of Series D Participating Preferred Stock and
holders of shares of Common Stock shall, subject to the prior rights of all
other series of Preferred Stock, if any, ranking prior thereto, receive their
ratable and proportionate share of the remaining assets to be distributed in the
ratio of the Adjustment Number to 1 with respect to such Series D Participating
Preferred Stock and Common Stock, on a per share basis, respectively.
(B) In the event, however, that there are not sufficient
assets available to permit payment in full of the Series D Participating
Preferred Stock Liquidation Preference and the liquidation preferences of all
other series of Preferred Stock, if any, that rank on a parity with the Series D
Participating Preferred Stock, then such remaining assets shall be distributed
ratably to the holders of such parity shares ratably in accordance with the
respective amounts which would be payable on such shares if all amounts payable
thereon were paid in full. In the event, however, that there are not sufficient
assets available to permit payment in full of the Common Adjustment, then such
remaining assets shall be distributed ratably to the holders of Common Stock.
(C) The voluntary sale, lease, exchange or transfer (for cash,
shares of stock, securities or other consideration) of all or substantially all
of the property or assets of the Corporation to, or a merger or consolidation of
the Corporation into or with another corporation or the merger or consolidation
of any other corporation into or with the Corporation shall not be deemed to be
a liquidation, dissolution or winding up of the Corporation within the meaning
of this Section 6.
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 each share of
Series D
Participating Preferred Stock shall at the same time be similarly exchanged or
changed in an amount per share equal to the Adjustment Number times 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.
8. Redemption.
(A) The Corporation, at its option, may redeem shares of the
Series D Participating Preferred Stock in whole at any time and in part from
time to time, at a redemption price equal to the Adjustment Number times the
current per share market price (as such term is hereinafter defined) of the
Common Stock on the date of the mailing of the notice of redemption, together
with unpaid accumulated dividends to the date of such redemption. The "current
per share market price" on any date shall be deemed to be the average of the
closing price per share of such Common Stock for the ten consecutive Trading
Days (as such term is hereinafter defined) immediately prior to such date;
provided, however, that in the event that the current per share market price of
the Common Stock is determined during a period following the announcement of (A)
a dividend or distribution on the Common Stock other than a regular quarterly
cash dividend or (B) any subdivision, combination or reclassification of such
Common Stock and the ex-dividend date for such dividend or distribution, or the
record date for such subdivision, combination or reclassification, shall not
have occurred prior to the commencement of such ten Trading Day period, then,
and in each such case, the current per share market price shall be properly
adjusted to take into account ex-dividend trading. The closing price for each
day shall be the last sales price, regular way, or, in case no such sale takes
place on such day, the average of the closing bid and asked prices, regular way,
in either case as reported in the principal transaction reporting system with
respect to securities listed or admitted to trading on the New York Stock
Exchange, or, if the Common Stock is not listed or admitted to trading on the
New York Stock Exchange, on the principal national securities exchange on which
the Common Stock is listed or admitted to trading, or, if the Common Stock is
not listed or admitted to trading on any national securities exchange but sales
price information is reported for such security, as reported by the National
Association of Securities Dealers, Inc. Automated Quotations System ("NASDAQ")
or such other self-regulatory organization or registered securities information
processor (as such terms are used under the Securities Exchange Act of 1934, as
amended) that then reports information concerning the Common Stock, or, if sales
price information is not so reported, the average of the high bid and low asked
prices in the over-the-counter market on such day, as reported by NASDAQ or such
other entity, or, if on any such date the Common Stock is not quoted by any such
entity, the average of the closing bid and asked prices as furnished by a
professional market maker making a market in the Common Stock selected by the
Board of Directors of the Corporation. If on any such date no such market maker
is making a market in the Common Stock, the fair value of the Common Stock on
such date as determined in good faith by the Board of Directors of the
Corporation shall be used. The term "Trading Day" shall mean a day on which the
principal national securities exchange on which the Common Stock is listed or
admitted to trading is open for the transaction of business, or, if the Common
Stock is not listed or admitted to trading on any national securities exchange
but is quoted by NASDAQ, a day on which NASDAQ reports trades, or, if the Common
Stock is not so quoted, a Monday, Tuesday, Wednesday, Thursday or Friday on
which banking institutions in the State of New York are not authorized or
obligated by law or executive order to close.
(B) In the event that fewer than all the outstanding shares of
the Series D Participating Preferred Stock are to be redeemed, the number of
shares to be redeemed shall be determined by the Board of Directors and the
shares to be redeemed shall be determined by lot as may be determined by the
Board of Directors or by any other method that may be determined by the Board of
Directors in its sole discretion to be equitable.
(C) Notice of any such redemption shall be given by mailing to
the holders of the shares of Series D Participating Preferred Stock to be
redeemed a notice of such redemption, first class postage prepaid, not later
than the thirtieth day and not earlier than the ninetieth day before the date
fixed for redemption, at their last address as the same shall appear upon the
books of the Corporation. Each such notice shall state: (i)
the redemption date; (ii) the number of shares to be redeemed and, if fewer than
all the shares held by such holder are to be redeemed, the number of such shares
to be redeemed from such holder; (iii) the redemption price; (iv) the place or
places where certificates for such shares are to be surrendered for payment of
the redemption price; and (v) that dividends on the shares to be redeemed will
cease to accrue on the close of business on such redemption date. Any notice
that is mailed in the manner herein provided shall be conclusively presumed to
have been duly given, whether or not the stockholder received such notice, and
failure duly to give such notice by mail, or any defect in such notice, to any
holder of Series D Participating Preferred Stock shall not affect the validity
of the proceedings for the redemption of any other shares of Series D
Participating Preferred Stock that are to be redeemed. On or after the date
fixed for redemption as stated in such notice, each holder of the shares called
for redemption shall surrender the certificate evidencing such shares to the
Corporation at the place designated in such notice and shall thereupon be
entitled to receive payment of the redemption price. If fewer than all the
shares represented by any such surrendered certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares.
The shares of Series D Participating Preferred Stock shall not be subject to the
operation of any purchase, retirement or sinking fund.
9. Ranking. The Series D Participating Preferred Stock shall
rank equally with all other series of the Corporation's Preferred Stock as to
the payment of dividends (other than any participating dividends to which the
Series D Participating Preferred Stock may be entitled, which participating
dividends shall rank junior to all preferential dividends on Preferred Stock)
and the distribution of assets, unless the terms of any such series (to the
extent, if any, allowed by the Articles of Incorporation) provide otherwise, and
shall rank senior to the Common Stock as to such matters.
10. Amendment. At any time that any shares of Series D
Participating Preferred Stock are outstanding,
(A) no provision of Part A of the Articles of Incorporation
may be amended, altered or repealed in any manner which would adversely affect
the preferences, rights or powers of the Series D Participating Preferred Stock
without the affirmative vote or consent of the holders of at least 66 2/3% of
all Preferred Stock at the time outstanding, regardless of series, given in
person or by proxy, either in writing or by resolution adopted at an annual or
special meeting called for such purpose, at which the holders of Preferred
Stock, regardless of series, shall vote separately as a class; provided that the
creation of any class of stock ranking prior to the Preferred Stock either as to
dividends or upon liquidation, dissolution or winding up or any increase in the
authorized number of shares of any such class of stock shall not be deemed to
adversely affect the preferences, rights or powers of the Series D Participating
Preferred Stock within the meaning of this paragraph; and
(B) no provision of this Certificate of Designation may be
amended, altered or repealed in any manner which would adversely affect the
preferences, rights or powers of the Series D Participating Preferred Stock
without the affirmative vote or consent of the holders of at least 66 2/3% of
all Series D Participating Preferred Stock at the time outstanding, given in
person or by proxy, either in writing or by resolution adopted at an annual or
special meeting called for such purpose, at which the holders of Series D
Participating Preferred Stock shall vote separately as a series.
The amendments to the Articles of Incorporation or this
Certificate of Designation provided for in paragraphs (A) and (B) above, to the
extent that such amendments would substantially adversely affect the rights or
powers of, or involve the waiver of voting rights by, another series of
Preferred Stock or Common Stock, as the case may be, are subject to the
applicable provisions and limitations of law and the Articles of Incorporation.
11. Fractional Shares. Series D Participating Preferred Stock
may be issued in fractions of a share that shall entitle the holder, in
proportion to such holder's fractional shares, to exercise voting rights,
receive dividends, participate in distributions and to have the benefit of all
other rights of holders of Series D Participating Preferred Stock.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate and does affirm the foregoing as true this 17th day of October,
2001.
/s/ JOHN T. NESSER, III
Name: John T. Nesser, III
Title: Executive Vice President, General
Counsel and Corporate Secretary