EXHIBIT 99.2
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SCHEDULE 2.6(B)-2
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DESIGNATION OF RIGHTS AND PREFERENCES FOR SERIES B PREFERRED STOCK
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The issue of up to 303,771 shares of Series B Preferred Stock, $.01 par
value, of the Corporation is hereby authorized, and the designation, preferences
and privileges, relative, participating, optional and other special rights and
qualifications of all 303,771 shares of this series, in addition to those set
forth in the Articles of Incorporation (as amended from time to time), are
hereby fixed as follows:
1. Designation. The designation of such Preferred Stock shall be
Series B Preferred Stock, and the number of shares constituting such series is
303,771. Shares of the Series B Preferred Stock shall have a stated value of
$50 per share. The number of authorized shares of the Series B Preferred Stock
may be reduced by resolution duly adopted by the Board of Directors of the
Corporation and by the filing of a certificate pursuant to the provisions of the
Act stating that such reduction has been so authorized.
2. Dividends.
2.1. Dividend rates on the shares of the Series B Preferred Stock
shall be for the period that commences on January 1, 2002 and that
shall end on and include March 31, 2001 (the "Initial Dividend Period")
and for each quarterly dividend period (hereinafter referred to as a
"Quarterly Dividend Period," and the Initial Dividend Period and any
Quarterly Dividend Period being hereinafter individually referred to as
a "Dividend Period" and collectively as "Dividend Periods") thereafter,
which Quarterly Dividend Periods shall commence on January 1, April 1,
July 1 and October 1 in each year and shall end on and include the day
next preceding the first day of the next Quarterly Dividend Period, at
a rate per annum of the stated value thereof equal to the Applicable
Rate (as defined in Section 3) in respect of each Dividend Period. Such
dividends shall be cumulative from the first day of the Initial
Dividend Period and shall be declared, set aside and paid from funds
legally available for that purpose, on March 31, June 30, September 30
and December 31 of each year, commencing with such date that is the
last day of the Initial Dividend Period (the respective dates that such
dividends are payable will hereinafter be referred to as the "Dividend
Payment Dates"). The dividend for a Dividend Period shall be paid to
the holders of record of shares of the Series B Preferred Stock as they
appear on the stock register of the Corporation on such record date,
not exceeding 30 days preceding the Dividend Payment Date for that
Dividend Period, as shall be fixed by the Board of Directors of the
Corporation, or by a committee of said Board of Directors duly
authorized to fix such date.
2.2. Dividends on account of arrears for any one or more past
Dividend Periods may be declared and paid at any time, without
reference to any regular Dividend Payment Date, to holders of record on
such date, not exceeding 30 days preceding the payment date thereof, as
may be fixed by the Board of Directors of the Corporation, or by a
committee of said Board of Directors duly authorized to fix such date.
No interest, or sum of money in lieu of interest, shall be payable in
respect of any dividend payment or payments which may be in arrears.
Dividends payable on the Series B Preferred Stock for each full
Dividend Period (including the Initial Dividend Period) shall be
computed by dividing the Applicable Rate by four. Dividends payable for
any period less than a full Dividend Period shall be computed on the
basis of a 360-day year of four 90-day quarters and the actual number
of days elapsed in the period for which payable.
3. Definition of Applicable Rate.
3.1. The "Applicable Rate" for a Dividend Period (a) shall be 10%,
if neither of the succeeding clauses (b) or (c) applies; (b) shall be
15%, if (i) a Dividend Default (as defined in Section 3.2) has occurred
and is continuing on the last day of the Dividend Period or, in the
event of dividends payable for any period less than a full Dividend
Period, on the last day of such period, and (ii) the succeeding clause
(c) does not apply; or (c) shall be 20%, if a Series B Redemption
Default (as defined in Section 10.1) or a Covenant Default (also as
defined in Section 10.1) has occurred and is continuing on the last day
of the Dividend Period or, in the event of dividends payable for any
period less than a full Dividend Period, on the last day of such
period.
3.2. A "Dividend Default" shall occur if the Corporation fails
for two consecutive Dividend Periods to pay, within 10 days of the
respective Dividend Payment Dates therefor, any dividends payable for
those Dividend Periods on either the Series B Preferred Stock or the
Corporation's Series A Preferred Stock.
4. Redemption.
4.1. The Corporation, at its option, may redeem the Series B
Preferred Stock, as a whole or in part, at any time or from time to
time, at a redemption price of $50.00 per share (such amount to be
equitably adjusted in the event of any subdivision or combination of
the Series B Preferred Stock), plus, in each case, accrued and unpaid
dividends thereon to the date fixed for redemption.
4.2. If the Corporation elects to redeem shares of Series B
Preferred Stock, notice of such redemption (the "Redemption Notice")
shall be given by first class mail, postage prepaid, mailed not less
than 10 days prior to the redemption date, to each holder of record of
the shares to be redeemed, at such holder's address as the same appears
on the stock register of the Corporation. Any Redemption Notice mailed
in the manner herein provided shall be conclusively presumed to have
been duly given on the date mailed whether or not the holder receives
the notice. Each Redemption Notice shall state: (a) the redemption
date; (b) the number of shares of Series B Preferred Stock to be
redeemed and, if less than all the shares held by such holder are to be
redeemed, the number of such shares to be redeemed from such holder;
(c) the redemption price; (d) the place or places where certificates
for such shares are to be surrendered for payment of the redemption
price; and (e) that dividends on the shares to be redeemed will cease
to accrue on such redemption date. If a Redemption Notice is mailed as
aforesaid, then, from and after the redemption date stated therein
(unless a default shall be made by the Corporation in providing money
for the payment of the redemption price), dividends on the shares of
the Series B Preferred Stock so called for redemption shall cease to
accrue, and said shares shall no longer be deemed to be outstanding,
and all rights of the holders thereof as shareholders of the
Corporation (except the right to receive from the Corporation the
redemption price, without interest thereon) shall cease. Upon surrender
in accordance with said Redemption Notice of the certificates for any
shares so redeemed (properly endorsed or assigned for transfer, if the
Board of Directors of the Corporation shall so require and the
Redemption Notice shall so state), such shares shall be redeemed by the
Corporation at the redemption price aforesaid. If less than all the
outstanding shares of the Series B Preferred Stock are to be redeemed,
shares to be redeemed shall be selected by the Corporation from
outstanding shares of Series B Preferred Stock not previously called
for redemption pro rata (as nearly as may be) or by any other method
determined by the Corporation in its sole discretion to be equitable. A
new certificate shall be issued representing the unredeemed shares
without cost to the holder thereof.
4.3. Notwithstanding the foregoing provisions of this Section 4,
if any dividends on the Series B Preferred Stock are in arrears, no
shares of the Series B Preferred Stock shall be redeemed unless all
outstanding shares of the Series B Preferred Stock are simultaneously
redeemed, and the Corporation shall not purchase or otherwise acquire
any shares of such series; provided, however, that the foregoing shall
not prevent the purchase or acquisition of shares of the Series B
Preferred Stock pursuant to a purchase or exchange offer made on the
same terms (such terms to include a provision for pro rata acceptance
of all shares tendered for purchase) to holders of all outstanding
shares of the Series B Preferred Stock.
5. Shares to be Retired. All shares of the Series B Preferred Stock
redeemed by the Corporation shall be retired and cancelled and shall be restored
to the status of authorized but unissued shares of Preferred Stock, without
designation as to series, and may thereafter be issued.
6. Conversion or Exchange. The holders of shares of the Series B
Preferred Stock shall not have any rights 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.
7. Voting. The Series B Preferred Stock shall have no voting powers
either general or special except as otherwise required by the Act and as
provided in Section 8.
8. Protective Provisions. Unless the vote or consent of the holders of
a greater number of shares shall then be required by law, the consent of the
holders of record of at least 75% of the outstanding shares of the Series B
Preferred Stock, given in person or by proxy, either in writing or by a vote at
a meeting called for that purpose, shall be necessary for (a) any amendment to
the Articles of Incorporation or By-Laws of the Corporation (as amended from
time to time) that adversely affects the preferences, rights, powers or
privileges of the Series B Preferred Stock; (b) any authorization, issuance or
increase in the authorized amount of any additional class or series of Senior
Stock or Parity Stock (as those terms are defined in Section 12); (c) any merger
of the Corporation into another corporation in a transaction where the
Corporation is not a surviving corporation; (d) any sale, conveyance, exchange
or transfer of all or substantially all the property or business of the
Corporation; (e) any voluntary liquidation, dissolution or winding up of the
Corporation; and (f) any declaration or payment by the Corporation of any
dividend, other than dividends declared or paid on the Series B Preferred Stock
and the Corporation's Series A Preferred Stock.
9. Limitation on Dividends on Junior Stock. So long as any of the
Series B Preferred Stock shall be outstanding, the Corporation shall not declare
any dividends on any one or more classes of Junior Stock (as defined in Section
12), or make any payment on account of, or set apart money for, a sinking or
other analogous fund for the purchase, redemption or other retirement of any
shares of Junior Stock, or make any distribution in respect thereof, whether in
cash or property or in obligations or stock of the Corporation, other than
Junior Stock (such dividends, payments, setting apart and distributions being
herein called "Junior Stock Payments"), unless full cumulative dividends shall
have been paid or declared and set apart for payment upon all outstanding shares
of Series B Preferred Stock at the date of such declaration in the case of any
such dividend, or the date of such setting apart in the case of any such fund,
or the date of such payment or distribution in the case of any other Junior
Stock Payment; provided, however, that, so long as no Triggering Event has
occurred and is continuing, the Corporation shall be entitled to repurchase (a)
shares of Common Stock in accordance with restricted stock purchase agreements
entered into with employees, consultants and directors of the Corporation and
its direct and indirect subsidiaries and (ii) a number of shares of Common Stock
during each calendar year equal to the aggregate number of shares of Common
Stock issued or to be issued during that year in connection with benefit
programs for employees, consultants and directors of the Corporation and its
direct and indirect subsidiaries, including stock bonuses, restricted stock
grants and contributions to qualified plans, so long as the total number of
shares of Common Stock repurchased pursuant to the foregoing clause (a) and
clause (b) during each calendar year may not exceed 1% of the number of shares
of Common Stock of the Corporation outstanding on the first day of such calendar
year (such number to be equitably adjusted in the event of any subdivision or
combination of the Common Stock during such calendar year). A Junior Stock
Payment made in conformity with the proviso in the preceding sentence shall not
constitute a Covenant Default.
10. Triggering Event.
10.1. A "Triggering Event" shall occur if (a) a Dividend Default
occurs; (b) the Corporation fails to call for redemption pursuant to
Section 4 all of the outstanding shares of Series B Preferred Stock and
complete such redemption by January 30, 2008, unless such failure is
due solely to the failure of one or more holders of the Series B
Preferred Stock to surrender in accordance with the Redemption Notice
the certificates for any shares so redeemed (properly endorsed or
assigned for transfer, if the Board of Directors of the Corporation
shall so require and the Redemption Notice shall so state) (such
failure is herein referred to as a "Series B Redemption Default"); or
(c) the Corporation breaches or fails to perform any obligation in
Section 4.3, 8, 9 or 10.2 of this Article Fourth-B, and such breach or
failure, if susceptible of cure, is not cured within 30 days after the
Corporation receives written notice of default from the then holders of
record of a majority of the outstanding shares of the Series B
Preferred Stock (such breach or failure is herein referred to as a
"Covenant Default"). Once a Triggering Event occurs by reason of a
Dividend Default, the Triggering Event shall solely for purposes of
Section 10.2 be deemed to continue until all accrued and unpaid
dividends on the Series B Preferred Stock and the Corporation's Series
A Preferred Stock have been paid (or declared and set aside for
payment) and thereafter until the Corporation has for three consecutive
Dividend Periods paid (or declared and set aside for payment), within
10 days of the respective Dividend Payment Dates therefor, all
dividends payable for those Dividend Periods on both the Series B
Preferred Stock and the Corporation's Series A Preferred Stock.
10.2. If a Triggering Event occurs, the then holders of record of
a majority of the outstanding shares of the Series B Preferred Stock
and the Corporation's Series A Preferred Stock will be entitled, by
written instrument delivered to the Corporation, to jointly designate
two individuals to serve on the Board of Directors of the Corporation.
As promptly as practical following receipt of such written designation,
the Corporation will cause two vacancies to exist on its Board of
Directors (by means of a resignation of one or more directors, an
increase in the number of directors constituting the Board of Directors
or a combination of the two) and cause the individuals named in the
designation to be elected to fill those vacancies. If either of such
individuals ceases to serve as a director for any reason, the
Corporation will use its best efforts to have appointed or elected as a
successor director such other individual as is designated by the then
holders of record of a majority of the outstanding shares of the Series
B Preferred Stock and the Corporation's Series A Preferred Stock. The
right to representatives on the Board of Directors will terminate at
such time as no Triggering Event is continuing or deemed to be
continuing as provided in Section 10.1. Upon such termination, the
terms of office of all individuals who may have been elected directors
pursuant to this Section 10.2 shall forthwith terminate without
reduction in the number of directors constituting the Board of
Directors.
11. Liquidation Preference.
11.1. In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the holders of the Series
B Preferred Stock shall be entitled to receive out of the assets of the
Corporation available for distribution to shareholders, after any
distribution of assets shall be made to the holders of any Senior Stock
but before any distribution of assets shall be made to the holders of
any Junior Stock, an amount equal to $50 per share (such amount to be
equitably adjusted in the event of any subdivision or combination of
the Series B Preferred Stock) plus an amount equal to any accrued and
unpaid dividends thereon (whether or not earned or declared) to the
date fixed for payment of such distribution.
11.2. Upon any voluntary or involuntary liquidation, dissolution
or winding up of the Corporation, the holders of the Series B Preferred
Stock, the holders of the Corporation's Series A Preferred Stock and
the holders of any other shares of stock of the Corporation ranking on
a parity with the Series B Preferred Stock and the Corporation's Series
A Preferred Stock as to distributions upon such liquidation,
dissolution or winding up shall be entitled to the receipt of the
amounts distributable upon such liquidation, dissolution or winding up
in proportion to their respective liquidation prices, without
preference or priority, one over the other, as between the holders of
the Series B Preferred Stock, the Corporation's Series A Preferred
Stock and such other shares.
11.3. If upon any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the amounts payable with
respect to the Series B Preferred Stock and any other shares of stock
of the Corporation ranking as to distributions upon such liquidation,
dissolution or winding up on a parity with the Series B Preferred Stock
are not paid in full, the holders of the Series B Preferred Stock and
of such other shares shall share ratably in any such distribution of
assets of the Corporation in proportion to the full respective
preferential amounts to which they are entitled. After payment to the
holders of the Series B Preferred Stock of the full preferential
amounts provided for in this Section 11, the holders of the Series B
Preferred Stock shall be entitled to no further participation in any
distribution of assets by the Corporation.
11.4. For the purposes of this Section 11, a sale, conveyance,
exchange or transfer of all or substantially all the property or
business of the Corporation, and a merger of the Corporation into
another corporation in a transaction where the Corporation is not a
surviving corporation, shall be deemed to be a liquidation, dissolution
or winding up, voluntary or involuntary, of the Corporation. A merger
of another corporation into the Corporation in a transaction where the
Corporation is a surviving corporation shall not be deemed to be a
liquidation, dissolution or winding up, voluntary or involuntary, of
the Corporation for the purposes of this Section 11.
12. Ranking of Stock of the Corporation. Any stock of any class or
classes of the Corporation shall be deemed to rank:
(a) prior to the shares of the Series B Preferred Stock, either
as to dividends or upon liquidation, if the holders of such
class or classes shall be entitled to the receipt of
dividends or of amounts distributable upon liquidation,
dissolution or winding up of the Corporation, as the case
may be, in preference or priority to the holders of shares
of the Series B Preferred Stock (such class or classes of
stock are sometimes herein referred to as "Senior Stock");
(b) on a parity with the shares of the Series B Preferred Stock,
either as to dividends or upon liquidation, whether or not
the dividend rates, dividend payment dates or redemption or
liquidation prices per share or sinking fund provisions, if
any, be different from those of the Series B Preferred
Stock, if the holders of such stock shall be entitled to the
receipt of dividends or of amounts distributable upon
liquidation, dissolution or winding up of the Corporation,
or both, as the case may be, in proportion to their
respective dividend rates and/or liquidation prices, without
preference or priority, one over the other, as between the
holders of such stock and the holders of shares of the
Series B Preferred Stock (such class or classes of stock are
sometimes herein referred to as "Parity Stock"); and
(c) junior to the shares of the Series B Preferred Stock, either
as to dividends or upon liquidation, if such class shall be
Common Stock or if the holders of shares of the Series B
Preferred Stock shall be entitled to receipt of dividends or
of amounts distributable upon liquidation, dissolution or
winding up of the Corporation, as the case may be, in
preference or priority to the holders of shares of such
class or classes (such class or classes of stock are
sometimes herein referred to as "Junior Stock").
13. Capitalized Terms. Except as otherwise provided herein, the
meanings of the capitalized terms contained in this Article Fourth-B shall
govern the construction of this Article Fourth-B but shall not govern the
construction of any other provisions of the Corporation's Articles of
Incorporation (as amended from time to time), including but not limited to any
provisions of any other designation of any other class or series of capital
stock of the Corporation, unless specifically stated otherwise by such other
provisions. References in this Article Fourth-B to "Dividend Periods" and
"Dividend Payment Dates" for the Corporation's Series A Preferred Stock shall be
deemed to refer to the definitions of those terms contained in Article Fourth A
of the Articles of Incorporation.