Exhibit 3.3
CERTIFICATE OF INCORPORATION
OF
MEDIQ INCORPORATED
NAME. The name of the Corporation is MEDIQ Incorporated.
REGISTERED OFFICE AND AGENT. The address of the Corporation's registered
office in the State of Delaware is 1209 Orange Street, Wilmington, Delaware
19801, in the County of New Castle. The name of the Corporation's registered
agent at such address is The Corporation Trust Company.
PURPOSE. The purposes for which the Corporation is formed are to engage in
any lawful act or activity for which corporations may be organized under the
General Corporation Law of Delaware and to possess and exercise all of the
powers and privileges granted by such law and any other law of Delaware.
AUTHORIZED CAPITAL.
A. The aggregate number of shares of stock which the Corporation
shall have authority to issue is 70,000,000 shares, divided into two (2) classes
consisting of 40,000,000 shares of Preferred Stock, par value $0.01 per share
("Preferred Stock"); and 30,000,000 shares of Common Stock, par value $0.01 per
share ("Common Stock").
B. The following is a statement of the designations, preferences,
qualifications, limitations, restrictions and the special or relative rights
granted to or imposed upon the shares of each such class:
ISSUE IN SERIES. Preferred Stock may be issued from time to time
in one or more series, each such series to have the terms stated herein and in
the resolution of the Board of Directors of the Corporation providing for its
issue. All shares of any one series of Preferred Stock will be identical, but
shares of different series of Preferred Stock need not be identical or rank
equally except insofar as provided by law or herein.
CREATION OF SERIES. The Board of Directors will have authority
by resolution to cause to be created one or more series of Preferred Stock, and
to determine and fix with respect to each series prior to the issuance of any
shares of the series to which such resolution relates:
The distinctive designation of the series and the number of
shares
which will constitute the series, which number may be
increased or decreased (but not below the number of
shares then outstanding) from time to time by action of
the Board of Directors;
The dividend rate and the times of payment of dividends on
the shares of the series, whether dividends will be
cumulative, and if so, from what date or dates;
The price or prices at which, and the terms and conditions
on which, the shares of the series may be redeemed at
the option of the Corporation;
Whether or not the shares of the series will be entitled to
the benefit of a retirement or sinking fund to be
applied to the purchase or redemption of such shares
and, if so entitled, the amount of such fund and the
terms and provisions relative to the operation thereof;
Whether or not the shares of the series will be convertible
into, or exchangeable for, any other shares of stock of
the Corporation or other securities, and if so
convertible or exchangeable, the conversion price or
prices, or the rates of exchange, and any adjustments
thereof, at which such conversion or exchange may be
made, and any other terms and conditions of such
conversion or exchange;
The rights of the shares of the series in the event of
voluntary or involuntary liquidation, dissolution or
winding up of the Corporation;
Whether or not the shares of the series will have priority
over or be on a parity with or be junior to the shares
of any other series or class in any respect or will be
entitled to the benefit of limitations restricting the
issuance of shares of any other series or class having
priority over or being on a parity with the shares of
such series in any respect, or restricting the payment
of dividends on or the making of other distributions in
respect of shares of any other series or class ranking
junior to the shares of the series as to dividends or
assets, or restricting the purchase or redemption of
the shares of any such junior series or class, and the
terms of any such restriction;
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Whether the series will have voting rights, in addition to
any voting rights provided by law, and, if so, the
terms of such voting rights; and
Any other preferences, qualifications, privileges, options
and other relative or special rights and limitations of
that series.
DIVIDENDS. Holders of Preferred Stock shall be entitled to
receive, when and as declared by the Board of Directors, out of funds legally
available for the payment thereof, dividends at the rates fixed by the Board of
Directors for the respective series, and no more, before any dividends shall be
declared and paid, or set apart for payment, on Common Stock with respect to the
same dividend period.
PREFERENCE ON LIQUIDATION. In the event of the voluntary or
involuntary liquidation, dissolution or winding up of the Corporation, holders
of each series of Preferred Stock will be entitled to receive the amount fixed
for such series plus, in the case of any series on which dividends will have
been determined by the Board of Directors to be cumulative, an amount equal to
all dividends accumulated and unpaid thereon to the date of final distribution
whether or not earned or declared before any distribution shall be paid, or set
aside for payment, to holders of Common Stock. If the assets of the Corporation
are not sufficient to pay such amounts in full, holders of all shares of
Preferred Stock will participate in the distribution of assets ratably in
proportion to the full amounts to which they are entitled or in such order or
priority, if any, as will have been fixed in the resolution or resolutions
providing for the issue of the series of Preferred Stock. Neither the merger
nor consolidation of the Corporation into or with any other corporation, nor a
sale, transfer or lease of all or part of its assets, will be deemed a
liquidation, dissolution or winding up of the corporation within the meaning of
this paragraph except to the extent specifically provided for herein.
REDEMPTION. The Corporation, at the option of the Board of
Directors, may redeem all or part of the shares of any series of Preferred Stock
on the terms and conditions fixed for such series.
vi. VOTING RIGHTS. Except as otherwise required by law, as otherwise provided
herein or as otherwise determined by the Board of Directors as to the shares of
any series of Preferred Stock prior to the issuance of any such shares, the
holders of Preferred Stock shall have no voting rights and shall not be entitled
to any notice of meeting of stockholders.
SERIES A PREFERRED STOCK.
DESIGNATION OF SERIES. There shall be 10,000,000 shares of
Preferred Stock designated as "Series A 13.0% Cumulative Compounding Preferred
Stock" ("Series A Preferred Stock"). The par value of Series A Preferred Stock
shall be $.01 per share.
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RANK. With respect to dividend rights and rights on liquidation,
winding up and dissolution of the Corporation, Series A Preferred Stock shall
rank (a) senior to the Common Stock of the Corporation, par value $.01 per share
("COMMON STOCK"), the Series B Preferred Stock (defined in paragraph 4.C.xii.
below), the Series C Preferred Stock (defined in paragraph 4.C.xii. below), and
each other class of capital stock or class or series of preferred stock issued
by the Corporation after the date hereof the terms of which specifically provide
that such class or series shall rank junior to the Series A Preferred Stock as
to dividend distributions or distributions upon the liquidation, winding up and
dissolution of the Corporation (collectively referred to as "SERIES A JUNIOR
SECURITIES"), (b) on a parity with each other class of capital stock or class or
series of preferred stock issued by the Corporation after the date hereof the
terms of which do not specifically provide that they rank junior to Series A
Preferred Stock or senior to Series A Preferred Stock as to dividend
distributions or distributions upon liquidation, winding up and dissolution of
the Corporation (collectively referred to as " SERIES A PARITY SECURITIES"), and
(c) junior to each other class of capital stock or other class or series of
preferred stock issued by the Corporation that by its terms is senior to the
Series A Preferred Stock with respect to dividend distributions or distributions
upon the liquidation, winding up and dissolution of the Corporation
(collectively referred to as "SERIES A SENIOR SECURITIES").
Dividends.
Each Holder of Series A Preferred Stock shall be entitled to
receive, when, as and if declared by the Board of
Directors, out of funds legally available therefor,
cash dividends on each share of Series A Preferred
Stock at a rate equal to $1.30 per share PER ANNUM.
All dividends shall be cumulative, whether or not
earned or declared, and shall accrue on a daily basis
from the date of issuance of Series A Preferred Stock,
and shall be payable semi-annually in arrears on each
Dividend Payment Date, commencing on the second
Dividend Payment Date after the date of issuance of
such Series A Preferred Stock. Each dividend on Series
A Preferred Stock shall be payable to the Holders of
record of Series A Preferred Stock as they appear on
the stock register of the Corporation on such record
date as may be fixed by the Board of Directors, which
record date shall not be less than 10 nor more than 60
days prior to the applicable Dividend Payment Date.
Dividends shall cease to accrue in respect of shares of
Series A Preferred Stock on the date of their
repurchase by the Corporation unless the Corporation
shall have failed to pay the relevant repurchase price
on the date fixed for repurchase. Notwithstanding
anything to the contrary set forth above,
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unless and until such dividends are declared by the
Board of Directors, there shall be no obligation to pay
such dividends; PROVIDED, that such dividends shall
continue to cumulate and shall be added to the
Liquidation Preference (as provided in Paragraph
4.C.iv.a. below) at the time of repurchase as provided
herein if not earlier declared and paid. Accrued
dividends on the Series A Preferred Stock if not paid
on the first or any subsequent Dividend Payment Date
following accrual shall thereafter accrue additional
dividends ("ADDITIONAL DIVIDENDS") in respect thereof,
compounded annually, at the rate of 13.0% per annum.
All dividends paid with respect to shares of Series A
Preferred Stock pursuant to paragraph 4.C.iii.a. shall
be paid PRO RATA to the Holders entitled thereto.
Dividends on account of arrears for any past Dividend Period
and dividends in connection with any optional
redemption pursuant to paragraph 4.C.v.a. may be
declared and paid at any time, without reference to any
regular Dividend Payment Date, to the Holders of record
on any date as may be fixed by the Board of Directors,
which date is not more than 60 days prior to the
payment of such dividends.
As long as any Series A Preferred Stock is outstanding, no
dividends shall be declared by the Board of Directors
or paid or funds set apart for the payment of dividends
or other distributions on any Series A Parity
Securities for any period, and no Series A Parity
Securities may be repurchased, redeemed or otherwise
acquired, nor may funds be set apart for such payment
(other than dividends, other distributions,
redemptions, repurchases or acquisitions payable in
Series A Junior Securities and cash in lieu of
fractional shares of such Series A Junior Securities in
connection therewith), unless (i) full Accumulated
Dividends have been paid or set apart for such payment
on the Series A Preferred Stock and Series A Parity
Securities for all Dividend Periods terminating on or
prior to the date of payment of such dividends or
distributions on, or such repurchase or redemption of,
such Series A Parity Securities (the "SERIES A PARITY
PAYMENT DATE") and (ii) any such dividends are declared
and paid pro rata so that the amounts of any dividends
declared and
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paid per share on outstanding Series A Preferred Stock
and each other share of Series A Parity Securities will
in all cases bear to each other the same ratio that
accrued and unpaid dividends (including any Accumulated
Dividends) per share of outstanding Series A Preferred
Stock and such other outstanding shares of Series A
Parity Securities bear to each other.
The Holders shall be entitled to receive the dividends
provided for in paragraph 4.C.iii.a. hereof in
preference to and in priority over any dividends upon
any of the Series A Junior Securities. Such dividends
on the Series A Preferred Stock shall be cumulative,
whether or not earned or declared, so that if at any
time full Accumulated Dividends on all shares of Series
A Preferred Stock then outstanding for all Dividend
Periods then elapsed have not been paid or set aside
for payment, the amount of such unpaid dividends shall
be paid before any sum shall be set aside for or
applied by the Corporation to the purchase, redemption
or other acquisition for value of any shares of Series
A Junior Securities (either pursuant to any applicable
sinking fund requirement or otherwise) or any dividend
or other distribution shall be paid or declared or set
apart for payment on any Series A Junior Securities
(the date of any such actions to be referred to as the
"SERIES A JUNIOR PAYMENT DATE"); PROVIDED, HOWEVER,
that the foregoing shall not (i) prohibit the
Corporation from repurchasing shares of Series A Junior
Securities from a holder thereof who is, or was, a
director or employee of the Corporation (or an
affiliate of the Corporation) and (ii) prohibit the
Corporation from making dividends, other distributions,
redemptions, repurchases or acquisitions in respect of
Series A Junior Securities payable in Series A Junior
Securities and cash in lieu of fractional shares of
such Series A Junior Securities in connection
therewith.
Dividends payable on Series A Preferred Stock for any period
less than one year shall be computed on the basis of a
360-day year consisting of twelve 30-day months and the
actual number of days elapsed in the period for which
such dividends are payable.
LIQUIDATION PREFERENCE.
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Upon any voluntary or involuntary liquidation, dissolution
or winding up of the Corporation, the Holders of all
shares of Series A Preferred Stock then outstanding
shall be entitled to be paid out of the assets of the
Corporation available for distribution to its
stockholders an amount in cash equal to $10.00 per
share, plus an amount equal to full cumulative
dividends (whether or not earned or declared) accrued
and unpaid thereon, including Additional Dividends, to
the date of final distribution (the "LIQUIDATION
PREFERENCE") and no more, before any distribution is
made on any Series A Junior Securities. If upon any
voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the application of all
amounts available for payments with respect to Series A
Preferred Stock and all other Series A Parity
Securities would not result in payment in full of
Series A Preferred Stock and such other Series A Parity
Securities, the Holders and holders of Series A Parity
Securities shall share equally and ratably in any
distribution of assets of the Corporation in proportion
to the full liquidation preference to which each is
entitled. After payment in full pursuant to this
paragraph 4.C.iv.a., the Holders shall not be entitled
to any further participation in any distribution in the
event of liquidation, dissolution or winding up of the
affairs of the Corporation.
For the purposes of this paragraph 4.C.iv., neither the
voluntary sale, conveyance, 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 nor the
consolidation, merger or other business combination of
the Corporation with one or more corporations (whether
or not the Corporation is the surviving corporation)
shall be deemed to be a voluntary or involuntary
liquidation, dissolution or winding up of the
Corporation.
REDEMPTION.
OPTIONAL REDEMPTION.
The Corporation may, at its option, redeem at any time
or from time to time, from any source of funds
legally available therefor, in whole or in part,
in the manner
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provided in paragraph 4.C.v.c. hereof, any or all
of the shares of Series A Preferred Stock, at a
redemption prices set forth below, plus an amount
equal to full cumulative dividends (whether or not
earned or declared) accrued and unpaid thereon,
including Additional Dividends, to the Redemption
Date (as defined in paragraph 4.C.xii.). The
redemption price for redemptions pursuant to this
paragraph 4.C.v.a. are as follows:
REDEMPTION
PRICE
REDEMPTION DATE PER SHARE
on or before December 31, 1999 $11.00
on or after January 1, 2000
but before January 1, 2002 $10.50
on or after January 1, 2002; $10.00
No partial redemption of Series A Preferred Stock
pursuant to paragraph 4.C.v.a. hereof may be
authorized or made unless prior thereto, full
accrued and unpaid dividends thereon for all
Dividend Periods terminating on or prior to
the Redemption Date and an amount equal to a
prorated dividend thereon for the period from
the Dividend Payment Date immediately prior
to the Redemption Date to the Redemption Date
have been or immediately prior to the
Redemption Notice are declared and paid in
cash or are declared and there has been a sum
set apart sufficient for such cash payment on
the Redemption Date.
In the event of a redemption pursuant to paragraph
4.C.v.a. hereof of only a portion of the then
outstanding shares of Series A Preferred
Stock, the Corporation shall effect such
redemption PRO RATA according to the number
of shares held by each Holder of Series A
Preferred Stock.
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MANDATORY REDEMPTION. All outstanding shares of the
Series A Preferred Stock shall be redeemed from
funds legally available therefor on December 31,
2011 (the "MANDATORY REDEMPTION DATE"), at a price
per share equal to the Liquidation Preference on
such Mandatory Redemption Date.
PROCEDURES FOR REDEMPTION.
At least 30 days and not more than 60 days prior
to the date fixed for any redemption of
Series A Preferred Stock, written notice (the
"REDEMPTION NOTICE") shall be given by first
class mail, postage prepaid, to each Holder
of record of Series A Preferred Stock on the
record date fixed for such redemption of
Series A Preferred Stock at such Holder's
address as set forth on the stock register of
the Corporation on such record date; PROVIDED
that no failure to give such notice nor any
deficiency therein shall affect the validity
of the procedure for the redemption of any
shares of Series A Preferred Stock to be
redeemed except as to the Holder or Holders
to whom the Corporation has failed to give
said notice or except as to the Holder or
Holders whose notice was defective. In
addition to any information required by law
or by the applicable rules of any exchange
upon which shares of Series A Preferred Stock
may be listed or admitted to trading, the
Redemption Notice shall state:
the redemption price;
whether all or less than all of the
outstanding shares of Series A Preferred Stock redeemable thereunder are to be
redeemed and the aggregate number of shares of Series A Preferred Stock being
redeemed;
the number of shares of Series A Preferred
Stock held, as of the appropriate record date, by the Holder that the
Corporation intends to redeem;
the Redemption Date;
that the Holder is to surrender to the
Corporation, at the place or places where certificates for shares of Series A
Preferred Stock are to be surrendered for redemption, in the manner and at the
price designated, his, her or its certificate or certificates representing the
shares of Series A Preferred Stock to be redeemed; and
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that dividends on the shares of Series A Preferred
Stock to be redeemed shall cease to accumulate on such Redemption Date unless
the Corporation defaults in the payment of the redemption price.
Each Holder shall surrender the certificate or certificates
representing such shares of Series A Preferred Stock
being so redeemed to the Corporation, duly endorsed, in
the manner and at the place designated in the
Redemption Notice, and on the Redemption Date the full
redemption price for such shares shall be payable in
cash to the Person whose name appears on such
certificate or certificates as the owner thereof, and
each surrendered certificate shall be canceled and
retired. In the event that less than all of the shares
represented by any such certificate are redeemed, a new
certificate shall be issued representing the unredeemed
shares.
If a Redemption Notice has been mailed in accordance with
paragraph 4.C.v.e. above, unless the Corporation
defaults in the payment in full of the redemption
price, then, notwithstanding that the certificates
evidencing any shares of Series A Preferred Stock so
called for redemption shall not have been surrendered,
(x) on the Redemption Date, the shares represented
thereby so called for redemption shall be deemed no
longer outstanding and shall have the status of
authorized but unissued shares of Preferred Stock,
undesignated as to series, (y) dividends with respect
to the shares so called for redemption shall cease to
accrue after the Redemption Date and (z) all rights
with respect to the shares so called for redemption or
subject to conversion shall forthwith after such date
cease and terminate, except for the right of the
holders to receive the funds, if any, payable pursuant
to this paragraph 5 without interest upon surrender of
their certificates therefor.
DEPOSIT OF FUNDS. The Corporation's obligation to deliver
funds in accordance with this paragraph v. shall be
deemed fulfilled if, on or before a Redemption Date,
the Corporation shall
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deposit, with a bank or trust Corporation, or an
affiliate of a bank or trust Corporation such funds as
are required to be delivered by the Corporation
pursuant to this paragraph v. upon the occurrence of
the related redemption consideration sufficient to pay
all accrued and unpaid dividends on the shares to be
redeemed, in trust for the account of the Holders of
the shares to be redeemed (and so as to be and continue
to be available therefor), with irrevocable
instructions and authority to such bank or trust
Corporation that such shares and funds be delivered
upon redemption of the shares of Series A Preferred
Stock so called for redemption. Any interest accrued
on such funds shall be paid to the Corporation from
time to time. Upon surrender of the certificates
pursuant to paragraph 4.C.v.c.(2), each Holder shall
thereupon be entitled to any funds payable pursuant to
this paragraph v. following such surrender and
following the date of such redemption.
VOTING RIGHTS.
The Holders shall not be entitled or permitted to vote on
any matter required or permitted to be voted upon by
the shareholders of the Corporation, except as
otherwise required by Delaware law or this Certificate
of Designation except that, without the written consent
of the holders of a majority of the outstanding shares
of Series A Preferred Stock or the vote of the holders
of a majority of the outstanding shares of Series A
Preferred Stock at a meeting of the holders of Series A
Preferred Stock called for such purpose, the
Corporation shall not (a) create, authorize or issue
any other class or series of stock entitled to a
preference prior to Series A Preferred Stock upon any
dividend or distribution or any liquidation,
distribution of assets, dissolution or winding up of
the Corporation, or (b) amend, alter or repeal any
provision of the Corporation's Certificate of
Incorporation so as to materially adversely affect the
relative rights and preferences of the Series A
Preferred Stock.
Without limiting the generality of the foregoing, in no
event shall the Holders be entitled to vote
(individually or as a class) on any merger or
consolidation involving the Corporation, any sale of
all or substantially all of the assets of the
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Corporation or any similar transaction.
In any case in which the Holders shall be entitled to vote
pursuant to paragraph 4.C.vi.a. above, each Holder
shall be entitled to one vote for each share of Series
A Preferred Stock held unless otherwise required by
applicable law.
CONVERSION OR EXCHANGE. The Holders shall not have any rights
hereunder to convert such shares into or exchange such shares for shares of any
other class or classes or of any other series of any class or classes of Capital
Stock of the Corporation.
REISSUANCE OF SERIES A PREFERRED STOCK. Shares of Series A
Preferred Stock which have been issued and reacquired in any manner, including
shares purchased, redeemed or exchanged, shall have the status of authorized and
unissued shares of Preferred Stock and may be reissued as part of a new series
of Preferred Stock to be created by resolution or resolutions of the Board of
Directors or as part of any other series of Preferred Stock, all subject to the
conditions or restrictions on issuance set forth in any resolution or
resolutions adopted by the Board of Directors providing for the issuance of any
series of Preferred Stock; except that the Corporation may reissue shares of
Series A Preferred Stock which are reacquired by the Corporation from a Holder
who is, or was, an employee or director of the Corporation (or its affiliates).
BUSINESS DAY. If any payment shall be required by the terms
hereof to be made on a day that is not a Business Day, such payment shall be
made on the immediately succeeding Business Day.
NO PREEMPTIVE RIGHTS No Holder will possess any preemptive
rights to subscribe for or acquire any unissued shares of Capital Stock of the
Corporation (whether now or hereafter authorized) or securities of the
Corporation convertible into or carrying a right to subscribe to or acquire
shares of Capital Stock of the Corporation.
PROHIBITIONS AND RESTRICTIONS IMPOSED BY SENIOR SECURITIES AND
INDEBTEDNESS. To the extent that any action required to be taken by the
Corporation under this Certificate of Designation shall be prohibited or
restricted by the terms of any Series A Senior Securities or any contract or
instrument to which the Corporation is a party or by which it is bound in
respect of the incurrence of indebtedness, such Corporation's actions shall be
delayed until such time as such prohibition or restriction is no longer in
force.
DEFINITIONS. As used in this Section 4.C., the following terms
shall have the following meanings (with terms defined in the singular having
comparable meanings when used in the plural and VICE VERSA), unless the context
otherwise requires:
"ACCUMULATED DIVIDENDS" means (i) with respect to any share of
Series A
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Preferred Stock, the dividends that have accrued on such share as of such
specific date for Dividend Periods ending on or prior to such date and that have
not previously been paid in cash, and (ii) with respect to any Series A Parity
Security, the dividends that have accrued and are due on such security as of
such specific date.
"ADDITIONAL DIVIDENDS" has the meaning given to such term in
paragraph 4.C.iii.a.
"BUSINESS DAY" means any day except a Saturday, Sunday or other
day on which commercial banking institutions in New York City are authorized by
law or executive order to close.
"CAPITAL STOCK" means any and all shares, interests,
participations, rights, or other equivalents (however designated) of corporate
stock including, without limitation, partnership interests.
"COMMON STOCK" shall have the meaning given to such term in
paragraph 4.C.ii.
"DIVIDEND PAYMENT DATE" means June 30th and December 31st of each
year.
"DIVIDEND PERIOD" means the Initial Dividend Period and,
thereafter, each Semi-Annual Dividend Period.
"HOLDER" means a holder of shares of Series A Preferred Stock.
"INITIAL DIVIDEND PERIOD" means the dividend period commencing on
the Issue Date and ending on the first Dividend Payment Date to occur
thereafter.
"ISSUE DATE" means May 29, 1998.
"LIQUIDATION PREFERENCE" has the meaning given to such term in
paragraph 4.C.iv.a.
"MANDATORY REDEMPTION DATE" has the meaning given to such term in
paragraph 4.C.v.b.
"PERSON" means any individual, corporation, partnership, joint
venture, incorporated or unincorporated association, joint-stock Corporation,
trust, unincorporated organization or government or other agency or political
subdivision thereof or any other entity of any kind.
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"PREFERRED STOCK" means the Preferred Stock of the Corporation.
"REDEMPTION DATE", with respect to any shares of Preferred Stock,
means the date on which such shares of Preferred Stock are redeemed by the
Corporation pursuant to paragraph 4.C.v.
"REDEMPTION NOTICE" has the meaning given to such term in
paragraph 4.C.v.c.
"SERIES A JUNIOR PAYMENT DATE" has the meaning given to such term
in 4.C.iii.c.
"SERIES A JUNIOR SECURITIES" has the meaning given to such term
in paragraph 4.C.ii.
"SERIES A PARITY PAYMENT DATE" has the meaning given to such term
in 4.C.iii.d.
"SERIES A PARITY SECURITIES" has the meaning given to such term
in paragraph 4.C.ii.
"SEMI-ANNUAL DIVIDEND PERIOD" means the annual period commencing
on each January 1st and July 1st and ending on each Dividend Payment Date,
respectively.
"SERIES A PREFERRED STOCK" has the meaning given to such term in
paragraph 4.C.i.
"SERIES A SENIOR SECURITIES" has the meaning given to such term
in paragraph 4.C.ii.
"SERIES B PREFERRED STOCK" means the Series B 13.25% Cumulative
Compounding Perpetual Preferred Stock of the Corporation as more fully described
in Section 4.D.
"SERIES C PREFERRED STOCK" means the Series C 13.5% Cumulative
Compounding Preferred Stock of the Corporation as more fully described in
Section 4.E.
SERIES B PREFERRED STOCK.
DESIGNATION OF SERIES. There shall be 5,000,000 shares of
Preferred Stock designated as "Series B 13.25% Cumulative Compounding Perpetual
Preferred Stock" ("Series B
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Preferred Stock"). The par value of Series B Preferred Stock shall be $.01 per
share.
RANK. With respect to dividend rights and rights on liquidation,
winding up and dissolution of the Corporation, Series B Preferred Stock shall
rank (a) senior to the Common Stock of the Corporation, par value $.01 per share
("COMMON STOCK"), the Series C Preferred Stock (defined in paragraph 4.D.xii.
below), and each other class of capital stock or class or series of preferred
stock issued by the Corporation after the date hereof the terms of which
specifically provide that such class or series shall rank junior to the Series B
Preferred Stock as to dividend distributions or distributions upon the
liquidation, winding up and dissolution of the Corporation (collectively
referred to as "SERIES B JUNIOR SECURITIES"), (b) on a parity with each other
class of capital stock or class or series of preferred stock issued by the
Corporation after the date hereof the terms of which specifically provide that
such class or series shall rank neither senior nor junior to the Series B
Preferred Stock as to dividend distributions or distributions upon liquidation,
winding up and dissolution of the Corporation (collectively referred to as "
SERIES B PARITY SECURITIES"), and (c) junior to (i) the Series A Preferred
Stock, (ii) each other class of capital stock or other class or series of
preferred stock issued by the Corporation that by its terms is senior to the
Series B Preferred Stock with respect to dividend distributions or distributions
upon the liquidation, winding up and dissolution of the Corporation and
(iii) each other class of capital stock or class or series of preferred stock
issued by the Corporation after the date hereof the terms of which do not
specifically provide that they rank junior to Series B Preferred Stock or senior
to Series B Preferred Stock as to dividend distributions or distributions upon
liquidation, winding up and dissolution of the Corporation (collectively
referred to as "SERIES B SENIOR SECURITIES").
DIVIDENDS.
Each Holder of Series B Preferred Stock shall be entitled to
receive, when, as and if declared by the Board of
Directors, out of funds legally available therefor,
cash dividends on each share of Series B Preferred
Stock at a rate equal to $1.325 per share PER ANNUM.
All dividends shall be cumulative, whether or not
earned or declared, and shall accrue on a daily basis
from the date of issuance of Series B Preferred Stock,
and shall be payable semi-annually in arrears on each
Dividend Payment Date, commencing on the second
Dividend Payment Date after the date of issuance of
such Series B Preferred Stock. Each dividend on Series
B Preferred Stock shall be payable to the Holders of
record of Series B Preferred Stock as they appear on
the stock register of the Corporation on such record
date as may be fixed by the Board of Directors, which
record date shall not be less than 10 nor more than 60
days prior to the applicable Dividend Payment Date.
Dividends shall cease
-15-
to accrue in respect of shares of Series B Preferred
Stock on the date of their repurchase by the
Corporation unless the Corporation shall have failed to
pay the relevant repurchase price on the date fixed for
repurchase. Notwithstanding anything to the contrary
set forth above, unless and until such dividends are
declared by the Board of Directors, there shall be no
obligation to pay such dividends; PROVIDED, that such
dividends shall continue to cumulate and shall be added
to the Liquidation Preference (as provided in
paragraph 4.D.iv.a. below) at the time of repurchase as
provided herein if not earlier declared and paid.
Accrued dividends on the Series B Preferred Stock if
not paid on the first or any subsequent Dividend
Payment Date following accrual shall thereafter accrue
additional dividends ("ADDITIONAL DIVIDENDS") in
respect thereof, compounded annually, at the rate of
13.25% per annum.
All dividends paid with respect to shares of Series B
Preferred Stock pursuant to paragraph 4.D.iii.a. shall
be paid PRO RATA to the Holders entitled thereto.
Dividends on account of arrears for any past Dividend Period
may be declared and paid at any time, without reference
to any regular Dividend Payment Date, to the Holders of
record on any date as may be fixed by the Board of
Directors, which date is not more than 60 days prior to
the payment of such dividends.
As long as any Series B Preferred Stock is outstanding, no
dividends shall be declared by the Board of Directors
or paid or funds set apart for the payment of dividends
or other distributions on any Series B Parity
Securities for any period, and no Series B Parity
Securities may be repurchased, redeemed or otherwise
acquired, nor may funds be set apart for such payment
(other than dividends, other distributions,
redemptions, repurchases or acquisitions payable in
Series B Junior Securities and cash in lieu of
fractional shares of such Series B Junior Securities in
connection therewith), unless (i) full Accumulated
Dividends have been paid or set apart for such payment
on the Series B Preferred Stock and Series B Parity
Securities for all Dividend Periods terminating on or
prior to the date of payment of such dividends or
-16-
distributions on, or such repurchase or redemption of,
such Series B Parity Securities (the "SERIES B PARITY
PAYMENT DATE") and (ii) any such dividends are declared
and paid pro rata so that the amounts of any dividends
declared and paid per share on outstanding Series B
Preferred Stock and each other share of Series B Parity
Securities will in all cases bear to each other the
same ratio that accrued and unpaid dividends (including
any Accumulated Dividends) per share of outstanding
Series B Preferred Stock and such other outstanding
shares of Series B Parity Securities bear to each
other.
The Holders shall be entitled to receive the dividends
provided for in paragraph 4.D.iii.a. hereof in
preference to and in priority over any dividends upon
any of the Series B Junior Securities. Such dividends
on the Series B Preferred Stock shall be cumulative,
whether or not earned or declared, so that if at any
time full Accumulated Dividends on all shares of Series
B Preferred Stock then outstanding for all Dividend
Periods then elapsed have not been paid or set aside
for payment, the amount of such unpaid dividends shall
be paid before any sum shall be set aside for or
applied by the Corporation to the purchase, redemption
or other acquisition for value of any shares of Series
B Junior Securities (either pursuant to any applicable
sinking fund requirement or otherwise) or any dividend
or other distribution shall be paid or declared or set
apart for payment on any Series B Junior Securities
(the date of any such actions to be referred to as the
"SERIES B JUNIOR PAYMENT DATE"); PROVIDED, HOWEVER,
that the foregoing shall not (i) prohibit the
Corporation from repurchasing shares of Series B Junior
Securities from a holder thereof who is, or was, a
director or employee of the Corporation (or an
affiliate of the Corporation) and (ii) prohibit the
Corporation from making dividends, other distributions,
redemptions, repurchases or acquisitions in respect of
Series B Junior Securities payable in Series B Junior
Securities and cash in lieu of fractional shares of
such Series B Junior Securities in connection
therewith.
Dividends payable on Series B Preferred Stock for any period
less than one year shall be computed on the basis of a
360-day
-17-
year consisting of twelve 30-day months and the actual
number of days elapsed in the period for which such
dividends are payable.
LIQUIDATION PREFERENCE.
Upon any voluntary or involuntary liquidation, dissolution
or winding up of the Corporation, the Holders of all
shares of Series B Preferred Stock then outstanding
shall be entitled to be paid out of the assets of the
Corporation available for distribution to its
stockholders an amount in cash equal to $10.00 per
share, plus an amount equal to full cumulative
dividends (whether or not earned or declared) accrued
and unpaid thereon, including Additional Dividends, to
the date of final distribution (the "Liquidation
Preference") and no more, before any distribution is
made on any Series B Junior Securities. If upon any
voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the application of all
amounts available for payments with respect to Series B
Preferred Stock and all other Series B Parity
Securities would not result in payment in full of
Series B Preferred Stock and such other Series B Parity
Securities, the Holders and holders of Series B Parity
Securities shall share equally and ratably in any
distribution of assets of the Corporation in proportion
to the full liquidation preference to which each is
entitled. After payment in full pursuant to this
paragraph 4.D.iv.a., the Holders shall not be entitled
to any further participation in any distribution in the
event of liquidation, dissolution or winding up of the
affairs of the Corporation.
For the purposes of this paragraph 4.D.iv., neither the
voluntary sale, conveyance, 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 nor the
consolidation, merger or other business combination of
the Corporation with one or more corporations (whether
or not the Corporation is the surviving corporation)
shall be deemed to be a voluntary or involuntary
liquidation, dissolution or winding up of the
Corporation.
REDEMPTION. The Company shall not have the right nor the power
to, and
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the Holders shall not have the right to require the Company to, redeem any
shares of Series B Preferred Stock. Notwithstanding the foregoing, this
Paragraph 4.D.v. shall not prohibit the Corporation from acquiring from any
Holder, with such Holder's consent, any shares of Series B Preferred Stock held
by such Holder.
VOTING RIGHTS.
The Holders shall not be entitled or permitted to vote on
any matter required or permitted to be voted upon by
the shareholders of the Corporation, except as
otherwise required by Delaware law or this Certificate
of Designation except that, without the written consent
of the holders of a majority of the outstanding shares
of Series B Preferred Stock or the vote of the holders
of a majority of the outstanding shares of Series B
Preferred Stock at a meeting of the holders of Series B
Preferred Stock called for such purpose, the
Corporation shall not (a) create, authorize or issue
any other class or series of stock entitled to a
preference prior to Series B Preferred Stock upon any
dividend or distribution or any liquidation,
distribution of assets, dissolution or winding up of
the Corporation, or (b) amend, alter or repeal any
provision of the Corporation's Certificate of
Incorporation so as to materially adversely affect the
relative rights and preferences of the Series B
Preferred Stock.
Without limiting the generality of the foregoing, in no
event shall the Holders be entitled to vote
(individually or as a class) on any merger or
consolidation involving the Corporation, any sale of
all or substantially all of the assets of the
Corporation or any similar transaction.
In any case in which the Holders shall be entitled to vote
pursuant to paragraph 4.D.vi.a. above, each Holder
shall be entitled to one vote for each share of Series
B Preferred Stock held unless otherwise required by
applicable law.
CONVERSION OR EXCHANGE. The Holders shall not have any rights
hereunder to convert such shares into or exchange such shares for shares of any
other class or classes or of any other series of any class or classes of Capital
Stock of the Corporation.
REISSUANCE OF SERIES B PREFERRED STOCK. Shares of Series B
Preferred Stock which have been issued and reacquired in any manner, including
shares purchased,
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redeemed or exchanged, shall have the status of authorized and unissued shares
of Preferred Stock and may be reissued as part of a new series of Preferred
Stock to be created by resolution or resolutions of the Board of Directors or as
part of any other series of Preferred Stock, all subject to the conditions or
restrictions on issuance set forth in any resolution or resolutions adopted by
the Board of Directors providing for the issuance of any series of Preferred
Stock; except that the Corporation may reissue shares of Series B Preferred
Stock which are reacquired by the Corporation from a Holder who is, or was, an
employee or director of the Corporation (or its affiliates).
BUSINESS DAY. If any payment shall be required by the terms
hereof to be made on a day that is not a Business Day, such payment shall be
made on the immediately succeeding Business Day.
NO PREEMPTIVE RIGHTS No Holder will possess any preemptive
rights to subscribe for or acquire any unissued shares of Capital Stock of the
Corporation (whether now or hereafter authorized) or securities of the
Corporation convertible into or carrying a right to subscribe to or acquire
shares of Capital Stock of the Corporation.
PROHIBITIONS AND RESTRICTIONS IMPOSED BY SENIOR SECURITIES AND
INDEBTEDNESS. To the extent that any action required to be taken by the
Corporation under this Certificate of Designation shall be prohibited or
restricted by the terms of any Series B Senior Securities or any contract or
instrument to which the Corporation is a party or by which it is bound in
respect of the incurrence of indebtedness, such Corporation's actions shall be
delayed until such time as such prohibition or restriction is no longer in
force.
DEFINITIONS. As used in this Section 4.D., the following terms
shall have the following meanings (with terms defined in the singular having
comparable meanings when used in the plural and VICE VERSA), unless the context
otherwise requires:
"ACCUMULATED DIVIDENDS" means (i) with respect to any share of
Series B Preferred Stock, the dividends that have accrued on such share as of
such specific date for Dividend Periods ending on or prior to such date and that
have not previously been paid in cash, and (ii) with respect to any Series B
Parity Security, the dividends that have accrued and are due on such security as
of such specific date.
"ADDITIONAL DIVIDENDS" has the meaning given to such term in
paragraph 4.D.iii.a.
"BUSINESS DAY" means any day except a Saturday, Sunday or other
day on which commercial banking institutions in New York City are authorized by
law or executive order to close.
"CAPITAL STOCK" means any and all shares, interests,
participations, rights,
-20-
or other equivalents (however designated) of corporate stock including, without
limitation, partnership interests.
"COMMON STOCK" shall have the meaning given to such term in
paragraph 4.D.ii.
"DIVIDEND PAYMENT DATE" means June 30th and December 31st of each
year.
"DIVIDEND PERIOD" means the Initial Dividend Period and,
thereafter, each Semi-Annual Dividend Period.
"HOLDER" means a holder of shares of Series B Preferred Stock.
"INITIAL DIVIDEND PERIOD" means the dividend period commencing on
the Issue Date and ending on the first Dividend Payment Date to occur
thereafter.
"ISSUE DATE" means May 29, 1998.
"LIQUIDATION PREFERENCE" has the meaning given to such term in
paragraph 4.D.iv.a.
"PERSON" means any individual, corporation, partnership, joint
venture, incorporated or unincorporated association, joint-stock Corporation,
trust, unincorporated organization or government or other agency or political
subdivision thereof or any other entity of any kind.
"PREFERRED STOCK" means the Preferred Stock of the Corporation.
"SEMI-ANNUAL DIVIDEND PERIOD" means the annual period commencing
on each January 1st and July 1st and ending on each Dividend Payment Date,
respectively.
"SERIES A PREFERRED STOCK" means the Series A 13.0% Cumulative
Compounding Preferred Stock of the Corporation as more fully described in
Section 4.C.
"SERIES B JUNIOR PAYMENT DATE" has the meaning given to such term
in 4.D.iii.e.
"SERIES B JUNIOR SECURITIES" has the meaning given to such term
in paragraph 4.D.ii.
"SERIES B PARITY PAYMENT DATE" has the meaning given to such term
in 4.D.iii.d.
-21-
"SERIES B PARITY SECURITIES" has the meaning given to such term
in paragraph 4.D.ii.
"SERIES B PREFERRED STOCK" has the meaning given to such term in
paragraph 4.D.i..
"SERIES B SENIOR SECURITIES" has the meaning given to such term
in paragraph 4.D.ii.
"SERIES C PREFERRED STOCK" means the Series C 13.5% Cumulative
Compounding Preferred Stock of the Corporation as more fully described in
Section 4.E.
SERIES C PREFERRED STOCK.
DESIGNATION OF SERIES. There shall be 5,000,000 shares of
Preferred Stock designated as "Series C 13.5% Cumulative Compounding Preferred
Stock" ("Series C Preferred Stock"). The par value of Series C Preferred Stock
shall be $.01 per share.
RANK. With respect to dividend rights and rights on liquidation,
winding up and dissolution of the Corporation, Series C Preferred Stock shall
rank (a) senior to the Common Stock of the Corporation, par value $.01 per share
("COMMON STOCK"), and each other class of capital stock or class or series of
preferred stock issued by the Corporation after the date hereof the terms of
which specifically provide that such class or series shall rank junior to the
Series C Preferred Stock as to dividend distributions or distributions upon the
liquidation, winding up and dissolution of the Corporation (collectively
referred to as "SERIES C JUNIOR SECURITIES"), (b) on a parity with each other
class of capital stock or class or series of preferred stock issued by the
Corporation after the date hereof the terms of which specifically provide that
such class or series shall rank neither senior nor junior to the Series C
Preferred Stock as to dividend distributions or distributions upon liquidation,
winding up and dissolution of the Corporation (collectively referred to as "
SERIES C PARITY SECURITIES"), and (c) junior to (i) the Series A Preferred Stock
(defined in Paragraph 4.E.xii.), (ii) the Series B Preferred Stock (defined in
Paragraph 4.E.xii.), (iii) each other class of capital stock or other class or
series of preferred stock issued by the Corporation that by its terms is senior
to the Series C Preferred Stock with respect to dividend distributions or
distributions upon the liquidation, winding up and dissolution of the
Corporation and (iv) each other class of capital stock or class or series of
preferred stock issued by the Corporation after the date hereof the terms of
which do not specifically provide that they rank junior to Series C Preferred
Stock or senior to Series C Preferred Stock as to dividend distributions or
distributions upon liquidation, winding up and dissolution of the Corporation
(collectively referred to as "SERIES C SENIOR SECURITIES").
DIVIDENDS.
-22-
Each Holder of Series C Preferred Stock shall be entitled to
receive, when, as and if declared by the Board of
Directors, out of funds legally available therefor,
cash dividends on each share of Series C Preferred
Stock at a rate equal to $1.35 per share PER ANNUM.
All dividends shall be cumulative, whether or not
earned or declared, and shall accrue on a daily basis
from the date of issuance of Series C Preferred Stock,
and shall be payable semi-annually in arrears on each
Dividend Payment Date, commencing on the second
Dividend Payment Date after the date of issuance of
such Series C Preferred Stock. Each dividend on Series
C Preferred Stock shall be payable to the Holders of
record of Series C Preferred Stock as they appear on
the stock register of the Corporation on such record
date as may be fixed by the Board of Directors, which
record date shall not be less than 10 nor more than 60
days prior to the applicable Dividend Payment Date.
Dividends shall cease to accrue in respect of shares of
Series C Preferred Stock on the date of their
repurchase by the Corporation unless the Corporation
shall have failed to pay the relevant repurchase price
on the date fixed for repurchase. Notwithstanding
anything to the contrary set forth above, unless and
until such dividends are declared by the Board of
Directors, there shall be no obligation to pay such
dividends; PROVIDED, that such dividends shall continue
to cumulate and shall be added to the Liquidation
Preference (as provided in paragraph 4.E.iv.a. below)
at the time of repurchase as provided herein if not
earlier declared and paid. Accrued dividends on the
Series C Preferred Stock if not paid on the first or
any subsequent Dividend Payment Date following accrual
shall thereafter accrue additional dividends
("ADDITIONAL DIVIDENDS") in respect thereof, compounded
annually, at the rate of 13.5% per annum.
All dividends paid with respect to shares of Series C
Preferred Stock pursuant to paragraph 4.E.iii.a. shall
be paid PRO RATA to the Holders entitled thereto.
Dividends on account of arrears for any past Dividend Period
and dividends in connection with any optional
redemption pursuant to paragraph 4.E.v.a. may be
declared and paid at any time, without reference to any
regular Dividend
-23-
Payment Date, to the Holders of record on any date as
may be fixed by the Board of Directors, which date is
not more than 60 days prior to the payment of such
dividends.
As long as any Series C Preferred Stock is outstanding, no
dividends shall be declared by the Board of Directors
or paid or funds set apart for the payment of dividends
or other distributions on any Series C Parity
Securities for any period, and no Series C Parity
Securities may be repurchased, redeemed or otherwise
acquired, nor may funds be set apart for such payment
(other than dividends, other distributions,
redemptions, repurchases or acquisitions payable in
Series C Junior Securities and cash in lieu of
fractional shares of such Series C Junior Securities in
connection therewith), unless (i) full Accumulated
Dividends have been paid or set apart for such payment
on the Series C Preferred Stock and Series C Parity
Securities for all Dividend Periods terminating on or
prior to the date of payment of such dividends or
distributions on, or such repurchase or redemption of,
such Series C Parity Securities (the "SERIES C PARITY
PAYMENT DATE") and (ii) any such dividends are declared
and paid pro rata so that the amounts of any dividends
declared and paid per share on outstanding Series C
Preferred Stock and each other share of Series C Parity
Securities will in all cases bear to each other the
same ratio that accrued and unpaid dividends (including
any Accumulated Dividends) per share of outstanding
Series C Preferred Stock and such other outstanding
shares of Series C Parity Securities bear to each
other.
The Holders shall be entitled to receive the dividends
provided for in paragraph 4.E.iii.a. hereof in
preference to and in priority over any dividends upon
any of the Series C Junior Securities. Such dividends
on the Series C Preferred Stock shall be cumulative,
whether or not earned or declared, so that if at any
time full Accumulated Dividends on all shares of Series
C Preferred Stock then outstanding for all Dividend
Periods then elapsed have not been paid or set aside
for payment, the amount of such unpaid dividends shall
be paid before any sum shall be set aside for or
applied by the Corporation to the purchase, redemption
or
-24-
other acquisition for value of any shares of Series C
Junior Securities (either pursuant to any applicable
sinking fund requirement or otherwise) or any dividend
or other distribution shall be paid or declared or set
apart for payment on any Series C Junior Securities
(the date of any such actions to be referred to as the
"SERIES C JUNIOR PAYMENT DATE"); PROVIDED, HOWEVER,
that the foregoing shall not (i) prohibit the
Corporation from repurchasing shares of Series C Junior
Securities from a holder thereof who is, or was, a
director or employee of the Corporation (or an
affiliate of the Corporation) and (ii) prohibit the
Corporation from making dividends, other distributions,
redemptions, repurchases or acquisitions in respect of
Series C Junior Securities payable in Series C Junior
Securities and cash in lieu of fractional shares of
such Series C Junior Securities in connection
therewith.
Dividends payable on Series C Preferred Stock for any period
less than one year shall be computed on the basis of a
360-day year consisting of twelve 30-day months and the
actual number of days elapsed in the period for which
such dividends are payable.
LIQUIDATION PREFERENCE.
Upon any voluntary or involuntary liquidation, dissolution
or winding up of the Corporation, the Holders of all
shares of Series C Preferred Stock then outstanding
shall be entitled to be paid out of the assets of the
Corporation available for distribution to its
stockholders an amount in cash equal to $10.00 per
share, plus an amount equal to full cumulative
dividends (whether or not earned or declared) accrued
and unpaid thereon, including Additional Dividends, to
the date of final distribution (the "LIQUIDATION
PREFERENCE") and no more, before any distribution is
made on any Series C Junior Securities. If upon any
voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the application of all
amounts available for payments with respect to Series C
Preferred Stock and all other Series C Parity
Securities would not result in payment in full of
Series C Preferred Stock and such other Series C Parity
Securities, the Holders and holders of Series C Parity
Securities shall share equally and ratably in any
distribution
-25-
of assets of the Corporation in proportion to the full
liquidation preference to which each is entitled.
After payment in full pursuant to this paragraph
4.E.iv.a., the Holders shall not be entitled to any
further participation in any distribution in the event
of liquidation, dissolution or winding up of the
affairs of the Corporation.
For the purposes of this paragraph 4.E.iv., neither the
voluntary sale, conveyance, 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 nor the
consolidation, merger or other business combination of
the Corporation with one or more corporations (whether
or not the Corporation is the surviving corporation)
shall be deemed to be a voluntary or involuntary
liquidation, dissolution or winding up of the
Corporation.
REDEMPTION.
OPTIONAL REDEMPTION.
The Corporation may, at its option, redeem at any time or
from time to time, from any source of funds legally
available therefor, in whole or in part, in the manner
provided in paragraph 4.E.v.c. hereof, any or all of
the shares of Series C Preferred Stock, at a redemption
price of $10.00 per share, plus an amount equal to full
cumulative dividends (whether or not earned or
declared) accrued and unpaid thereon, including
Additional Dividends, to the Redemption Date (as
defined in paragraph B).
No partial redemption of Series C Preferred Stock pursuant
to paragraph 4.E.v.a. hereof may be authorized or made
unless prior thereto, full accrued and unpaid dividends
thereon for all Dividend Periods terminating on or
prior to the Redemption Date and an amount equal to a
prorated dividend thereon for the period from the
Dividend Payment Date immediately prior to the
Redemption Date to the Redemption Date have been or
immediately prior to the Redemption Notice are declared
and paid in
-26-
cash or are declared and there has been a sum set apart
sufficient for such cash payment on the Redemption
Date.
In the event of a redemption pursuant to paragraph 4.E.v.a.
hereof of only a portion of the then outstanding shares
of Series C Preferred Stock, the Corporation shall
effect such redemption PRO RATA according to the number
of shares held by each Holder of Series C Preferred
Stock.
MANDATORY REDEMPTION. All outstanding shares of the Series C
Preferred Stock shall be redeemed from funds legally
available therefor on December 31, 2012 (the "MANDATORY
REDEMPTION DATE"), at a price per share equal to the
Liquidation Preference on such Mandatory Redemption Date.
PROCEDURES FOR REDEMPTION.
At least 30 days and not more than 60 days prior to the date
fixed for any redemption of Series C Preferred Stock,
written notice (the "REDEMPTION NOTICE") shall be given
by first class mail, postage prepaid, to each Holder of
record of Series C Preferred Stock on the record date
fixed for such redemption of Series C Preferred Stock
at such Holder's address as set forth on the stock
register of the Corporation on such record date;
PROVIDED that no failure to give such notice nor any
deficiency therein shall affect the validity of the
procedure for the redemption of any shares of Series C
Preferred Stock to be redeemed except as to the Holder
or Holders to whom the Corporation has failed to give
said notice or except as to the Holder or Holders whose
notice was defective. In addition to any information
required by law or by the applicable rules of any
exchange upon which shares of Series C Preferred Stock
may be listed or admitted to trading, the Redemption
Notice shall state:
the redemption price;
-27-
whether all or less than all of the outstanding shares
of Series C Preferred Stock redeemable thereunder are to be redeemed and the
aggregate number of shares of Series C Preferred Stock being redeemed;
the number of shares of Series C Preferred Stock held,
as of the appropriate record date, by the Holder that the Corporation intends to
redeem;
the Redemption Date;
that the Holder is to surrender to the Corporation, at
the place or places where certificates for shares of Series C Preferred Stock
are to be surrendered for redemption, in the manner and at the price designated,
his, her or its certificate or certificates representing the shares of Series C
Preferred Stock to be redeemed; and
that dividends on the shares of Series C Preferred
Stock to
be redeemed shall cease to accumulate on such Redemption Date unless the
Corporation defaults in the payment of the redemption price.
Each Holder shall surrender the certificate or certificates
representing such shares of Series C Preferred Stock
being so redeemed to the Corporation, duly endorsed, in
the manner and at the place designated in the
Redemption Notice, and on the Redemption Date the full
redemption price for such shares shall be payable in
cash to the Person whose name appears on such
certificate or certificates as the owner thereof, and
each surrendered certificate shall be canceled and
retired. In the event that less than all of the shares
represented by any such certificate are redeemed, a new
certificate shall be issued representing the unredeemed
shares.
If a Redemption Notice has been mailed in accordance with
paragraph 4.E.v.c. above, unless the Corporation
defaults in the payment in full of the redemption
price, then, notwithstanding that the certificates
evidencing any shares of Series C Preferred Stock so
called for redemption shall not have been surrendered,
(x) on the Redemption Date, the shares represented
thereby so called for redemption shall be deemed no
longer outstanding and shall have the status of
authorized but unissued shares of Preferred
-28-
Stock, undesignated as to series, (y) dividends with
respect to the shares so called for redemption shall
cease to accrue after the Redemption Date and (z) all
rights with respect to the shares so called for
redemption or subject to conversion shall forthwith
after such date cease and terminate, except for the
right of the holders to receive the funds, if any,
payable pursuant to this paragraph 5 without interest
upon surrender of their certificates therefor.
DEPOSIT OF FUNDS. The Corporation's obligation to deliver
funds in accordance with this paragraph v. shall be deemed
fulfilled if, on or before a Redemption Date, the
Corporation shall deposit, with a bank or trust Corporation,
or an affiliate of a bank or trust Corporation such funds as
are required to be delivered by the Corporation pursuant to
this paragraph v. upon the occurrence of the related
redemption consideration sufficient to pay all accrued and
unpaid dividends on the shares to be redeemed, in trust for
the account of the Holders of the shares to be redeemed (and
so as to be and continue to be available therefor), with
irrevocable instructions and authority to such bank or trust
Corporation that such shares and funds be delivered upon
redemption of the shares of Series C Preferred Stock so
called for redemption. Any interest accrued on such funds
shall be paid to the Corporation from time to time. Upon
surrender of the certificates pursuant to paragraph
4.E.v.c.(2), each Holder shall thereupon be entitled to any
funds payable pursuant to this paragraph v. following such
surrender and following the date of such redemption.
VOTING RIGHTS.
The Holders shall not be entitled or permitted to vote on
any matter required or permitted to be voted upon by
the shareholders of the Corporation, except as
otherwise required by Delaware law or this Certificate
of Designation except that, without the written consent
of the holders of a majority of the outstanding shares
of Series C Preferred Stock or the vote of the holders
of a majority of the outstanding shares of Series C
Preferred Stock at a meeting of the holders of Series C
Preferred Stock called for such purpose, the
Corporation shall not (a) create, authorize or issue
any other
-29-
class or series of stock entitled to a preference prior
to Series C Preferred Stock upon any dividend or
distribution or any liquidation, distribution of
assets, dissolution or winding up of the Corporation,
or (b) amend, alter or repeal any provision of the
Corporation's Certificate of Incorporation so as to
materially adversely affect the relative rights and
preferences of the Series C Preferred Stock.
Without limiting the generality of the foregoing, in no
event shall the Holders be entitled to vote
(individually or as a class) on any merger or
consolidation involving the Corporation, any sale of
all or substantially all of the assets of the
Corporation or any similar transaction.
In any case in which the Holders shall be entitled to vote
pursuant to paragraph 4.E.vi.a. above, each Holder
shall be entitled to one vote for each share of Series
C Preferred Stock held unless otherwise required by
applicable law.
CONVERSION OR EXCHANGE. The Holders shall not have any rights
hereunder to convert such shares into or exchange such shares for shares of any
other class or classes or of any other series of any class or classes of Capital
Stock of the Corporation.
REISSUANCE OF SERIES C PREFERRED STOCK. Shares of Series C
Preferred Stock which have been issued and reacquired in any manner, including
shares purchased, redeemed or exchanged, shall have the status of authorized and
unissued shares of Preferred Stock and may be reissued as part of a new series
of Preferred Stock to be created by resolution or resolutions of the Board of
Directors or as part of any other series of Preferred Stock, all subject to the
conditions or restrictions on issuance set forth in any resolution or
resolutions adopted by the Board of Directors providing for the issuance of any
series of Preferred Stock; except that the Corporation may reissue shares of
Series C Preferred Stock which are reacquired by the Corporation from a Holder
who is, or was, an employee or director of the Corporation (or its affiliates).
BUSINESS DAY. If any payment shall be required by the terms
hereof to be made on a day that is not a Business Day, such payment shall be
made on the immediately succeeding Business Day.
NO PREEMPTIVE RIGHTS No Holder will possess any preemptive
rights to subscribe for or acquire any unissued shares of Capital Stock of the
Corporation (whether now or hereafter authorized) or securities of the
Corporation convertible into or carrying a right to subscribe to or acquire
shares of Capital Stock of the Corporation.
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PROHIBITIONS AND RESTRICTIONS IMPOSED BY SENIOR SECURITIES AND
INDEBTEDNESS. To the extent that any action required to be taken by the
Corporation under this Certificate of Designation shall be prohibited or
restricted by the terms of any Series C Senior Securities or any contract or
instrument to which the Corporation is a party or by which it is bound in
respect of the incurrence of indebtedness, such Corporation's actions shall be
delayed until such time as such prohibition or restriction is no longer in
force.
DEFINITIONS. As used in this Section 4.E., the following terms
shall have the following meanings (with terms defined in the singular having
comparable meanings when used in the plural and VICE VERSA), unless the context
otherwise requires:
"ACCUMULATED DIVIDENDS" means (i) with respect to any share of
Series C Preferred Stock, the dividends that have accrued on such share as of
such specific date for Dividend Periods ending on or prior to such date and that
have not previously been paid in cash, and (ii) with respect to any Series C
Parity Security, the dividends that have accrued and are due on such security as
of such specific date.
"ADDITIONAL DIVIDENDS" has the meaning given to such term in
paragraph 4.E.iii.a.
"BUSINESS DAY" means any day except a Saturday, Sunday or other
day on which commercial banking institutions in New York City are authorized by
law or executive order to close.
"CAPITAL STOCK" means any and all shares, interests,
participations, rights, or other equivalents (however designated) of corporate
stock including, without limitation, partnership interests.
"COMMON STOCK" shall have the meaning given to such term in
paragraph 4.E.ii.
"DIVIDEND PAYMENT DATE" means June 30th and December 31st of each
year.
"DIVIDEND PERIOD" means the Initial Dividend Period and,
thereafter, each Semi-Annual Dividend Period.
"HOLDER" means a holder of shares of Series C Preferred Stock.
"INITIAL DIVIDEND PERIOD" means the dividend period commencing on
the Issue Date and ending on the first Dividend Payment Date to occur
thereafter.
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"ISSUE DATE" means May 29, 1998.
"LIQUIDATION PREFERENCE" has the meaning given to such term in
paragraph 4.E.iv.a.
"MANDATORY REDEMPTION DATE" has the meaning given to such term in
paragraph 4.E.v.b.
"PERSON" means any individual, corporation, partnership, joint
venture, incorporated or unincorporated association, joint-stock Corporation,
trust, unincorporated organization or government or other agency or political
subdivision thereof or any other entity of any kind.
"PREFERRED STOCK" means the Preferred Stock of the Corporation.
"REDEMPTION DATE", with respect to any shares of Preferred Stock,
means the date on which such shares of Preferred Stock are redeemed by the
Corporation pursuant to paragraph 4.E.v.
"REDEMPTION NOTICE" has the meaning given to such term in
paragraph 4.E.v.c.
"SEMI-ANNUAL DIVIDEND PERIOD" means the annual period commencing
on each January 1st and July 1st and ending on each Dividend Payment Date,
respectively.
"SERIES A PREFERRED STOCK" means the Series A 13.0% Cumulative
Compounding Preferred Stock of the Corporation as more fully described in
Section 4.C.
"SERIES B PREFERRED STOCK" means the Series B 13.25% Cumulative
Compounding Preferred Stock of the Corporation as more fully described in
Section 4.D.
"SERIES C JUNIOR PAYMENT DATE" has the meaning given to such term
in 4.E.iii.e.
"SERIES C JUNIOR SECURITIES" has the meaning given to such term
in paragraph 4.E.ii.
"SERIES C PARITY PAYMENT DATE" has the meaning given to such term
in 4.E.iii.d.
"SERIES C PARITY SECURITIES" has the meaning given to such term
in paragraph 4.E.ii.
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"SERIES C PREFERRED STOCK" has the meaning given to such term in
paragraph 4.E.i.
"SERIES C SENIOR SECURITIES" has the meaning given to such term
in paragraph 4.E.ii.
BYLAWS. The board of directors of the Corporation is authorized to adopt,
amend or repeal the bylaws of the Corporation, except as otherwise specifically
provided therein.
ELECTIONS OF DIRECTORS. Elections of directors need not be by written
ballot unless the bylaws of the Corporation shall so provide.
RIGHT TO AMEND. The Corporation reserves the right to amend any provision
contained in this Certificate as the same may from time to time be in effect in
the manner now or hereafter prescribed by law, and all rights conferred on
stockholders or others hereunder are subject to such reservation.
LIMITATION ON LIABILITY. The directors of the Corporation shall be
entitled to the benefits of all limitations on the liability of directors
generally that are now or hereafter become available under the General
Corporation Law of Delaware. Without limiting the generality of the foregoing,
no director of the Corporation shall be liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, or (iv) for any transaction
from which the director derived an improper personal benefit. Any repeal or
modification of this SECTION 8 shall be prospective only, and shall not affect,
to the detriment of any director, any limitation on the personal liability of a
director of the Corporation existing at the time of such repeal or modification.
INCORPORATOR. The name and address of the Incorporator is: Ira S. Pim,
Jr., 2225 Land Title Building, Philadelphia, PA 19101.
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