==============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
------------------------
W. R. GRACE & CO.
(To be renamed Sealed Air Corporation)
(Exact Name of Registrant as Specified in Its Charter)
Delaware 65-0654331
(State of Incorporation (I.R.S. Employer
or Organization) Identification no.)
One Town Center Road
Boca Raton, Florida 33486
(Address of Registrant's Principal Executive Offices)
If this Form relates to the If this Form relates to the
registration of a class of securities registration of a class of debt
pursuant to Section 12(b) of the securities pursuant to Section
Exchange Act and is effective 12(g) of the Exchange Act and is
pursuant to General Instruction effective pursuant to General
A.(c), please check the following Instruction A.(d), please check the
box. [X] following box. [ ]
Securities Act registration statement file number to which this form
relates: 333-46281
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
- -------------------------------- -------------------------------
Common Stock, par value $.10
per share New York Stock Exchange, Inc.
Series A Convertible Preferred
Stock, par value $.10 per share New York Stock Exchange, Inc.
Securities to be registered pursuant to Section 12(g) of the Act:
None.
==============================================================================
Item 1. Description of Registrant's Securities to be Registered
A description of the Registrant's Common Stock, par value $.10
per share, is contained in the Proxy Statement/Prospectus included in the
Registrant's Registration Statement (the "Registration Statement") on Form S-4
(File No. 333-46281), filed with the Securities and Exchange Commission on
February 13, 1998 under the Securities Act of 1933, as amended, under the
caption "Description of Capital Stock of New Sealed Air--New Sealed Air Common
Stock", which description is hereby incorporated by reference.
A description of the Registrant's Series A Convertible
Preferred Stock, par value $.10 per share, is contained in the Proxy
Statement/Prospectus included in the Registration Statement under the caption
"Description of Capital Stock of New Sealed Air--New Sealed Air Preferred
Stock", which description is hereby incorporated by reference.
Item 2. Exhibits
1. Form of Amended and Restated Articles of Incorporation of
the Registrant (incorporated by reference to Annex E of the Proxy
Statement/Prospectus included in the Registration Statement).
2. Form of Amended and Restated Bylaws of the Registrant.
3. Form of specimen certificate representing Common Stock.
4. Form of specimen certificate representing Series A Convertible
Preferred Stock.
5. Form of Certificate of Designations, Preferences and Rights of
Series A Convertible Preferred Stock.
SIGNATURES
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, as amended, the Registrant has duly caused this
registration statement to be signed on its behalf by the undersigned, thereto
duly authorized.
W. R. GRACE & CO.
Date: March 18, 1998 By: /s/ Robert B. Lamm
---------------------
Name: Robert B. Lamm
Title: Vice President and Secretary
EXHIBIT 2
AMENDED AND RESTATED BYLAWS
OF
SEALED AIR CORPORATION
(Formerly Named W.R. Grace & Co.)
ARTICLE 1
Offices
Section 1.1. Registered Office. The registered office of
the Corporation shall be in Wilmington, Delaware.
Section 1.2. Other Offices. The Corporation may also have
offices at such other places within and without the State of Delaware as the
Board of Directors may from time to time determine or the business of the
Corporation may require.
ARTICLE 2
Meetings of Stockholders
Section 2.1. Place. Meetings of the stockholders shall be
held at such place either within or without the State of Delaware as shall be
designated from time to time by the Board of Directors.
Section 2.2. Annual Meetings. Annual meetings of stockholders
shall, unless otherwise provided by the Board of Directors, be held on the
third Friday in May each year if not a legal holiday, and if a legal holiday,
then on the next full business day following, at 11:00 A.M., at which the
stockholders shall elect a Board of Directors, vote upon the ratification of
the selection of the independent auditors selected for the Corporation for the
then current fiscal year of the Corporation, and transact such other business
as may properly be brought before the meeting.
Section 2.3. Notice of Annual Meetings. Written notice of the
annual meeting, stating the place, date and hour thereof, shall be given to
each stockholder entitled to vote thereat not less than ten nor more than
sixty days before the date of the meeting.
Section 2.4. List of Stockholders. The officer who has charge
of the stock ledger of the Corporation shall prepare and make or cause to be
prepared and made, at least ten days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at said meeting, arranged
in alphabetical order with the address of and the number of voting shares
registered in the name of each. Such list shall be open for ten days prior to
the meeting to the examination of any stockholders, for any purpose germane to
the meeting, during ordinary business hours, either at a place within the city
where the meeting is to be held, which place shall be specified in the notice
of meeting, or, if not so specified, at the place where the meeting is to be
held, and shall be produced and kept at the time and place of said meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 2.5. Special Meetings. Special meetings of the
stockholders may be called by the chairman of the board, by the chief
executive officer, by resolution of the Board of Directors, or at the request
in writing of stockholders owning a majority in amount of the entire capital
stock of the Corporation issued and outstanding and entitled to vote. Any
such resolution or request shall state the purpose or purposes of the proposed
meeting.
Section 2.6. Notice of Special Meetings. Written notice of a
special meeting of stockholders, stating the place, date, hour and purpose
thereof, shall be given by the secretary to each stockholder entitled to vote
thereat, not less than ten nor more than sixty days before the date fixed for
the meeting.
Section 2.7. Business Transacted. Business transacted at any
special meeting of stockholders shall be limited to the purposes stated in the
notice.
Section 2.8. Quorum. The holders of a majority of the stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business except as otherwise provided by
statute or by the certificate of incorporation. If, however, such quorum
shall not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, so long as the adjournment is
not for more than thirty days and a new record date is not fixed for the
adjourned meeting, until a quorum shall be present or represented. If a
quorum shall be present or represented at such adjourned meeting, any business
may be transacted which might have been transacted at the original meeting.
Section 2.9. Vote Required. When a quorum is present at any
meeting, the vote of the holders of a majority of the stock having voting
power present in person or represented by proxy shall decide any questions
brought before such meeting, unless the question is one upon which by express
provision of the statutes or of the certificate of incorporation a different
vote is required, in which case such express provision shall govern and
control the decision of such question.
Section 2.10. Proxies, Etc. Each stockholder shall at every
meeting of the stockholders be entitled to one vote in person or by proxy for
each share of the capital stock having voting power held by such stockholder,
but no proxy shall be voted or acted upon after three years from its date,
unless the proxy provides for a longer period. No proxy or power of attorney
to vote shall be used to vote at a meeting of the stockholders unless it shall
have been filed with the secretary of the meeting when required by the
inspectors of election.
Section 2.11. Inspectors of Election. In advance of any
meeting of the stockholders, the Board of Directors or the presiding officer
of such meeting shall appoint two or more inspectors of election to act at
such meeting or at any adjournments thereof and make a written report thereof.
One or more persons may also be designated by the Board of Directors or such
presiding officer as alternate inspectors to replace any inspector who fails
to act. If no inspector or alternate is able to act at a meeting of
stockholders, the presiding officer of such meeting shall appoint one or more
inspectors to act at such meeting. No director or nominee for the office of
director at such meeting shall be appointed an inspector of election. Each
inspector, before entering on the discharge of the inspector's duties, shall
first take and sign an oath faithfully to execute the duties of inspector at
such meeting with strict impartiality and according to the best of such
person's ability. The inspectors of election shall, in accordance with the
requirements of the Delaware General Corporation Law, (i) ascertain the number
of shares outstanding and the voting power of each, (ii) determine the shares
represented at the meeting and the validity of proxies and ballots, (iii)
count all votes and ballots, (iv) determine and retain for a reasonable period
and file with the secretary of the meeting a record of the disposition of any
challenges made to any determination by the inspectors, and (v) make and file
with the secretary of the meeting a certificate of their determination of the
number of shares represented at the meeting and their count of all votes and
ballots. The inspectors may appoint or retain other persons or entities to
assist the inspectors in the performance of the duties of the inspectors.
Section 2.12. Action by Consent. Whenever the vote of the
stockholders at a meeting thereof is required or permitted to be taken for or
in connection with any corporate action by any provision of the statutes, the
meeting and vote of stockholders may be dispensed with if all of the
stockholders who would have been entitled to vote, or less than all but not
less than the holders of a majority of the stock entitled to vote upon the
action if such meeting were held shall consent in writing to such corporate
action being taken; provided that the written consent shall be signed by the
holders of outstanding stock having not less than the minimum number of votes
that would be necessary to authorize or take such action at a meeting at which
all shares entitled to vote thereon were present and voted; and provided
further that prompt notice shall be given to all stockholders of the taking of
corporate action without a meeting and by less than unanimous written consent.
ARTICLE 3
Directors
Section 3.1. Number. The number of directors which shall
constitute the whole Board of Directors shall be fixed from time to time by
resolution of the Board of Directors, but no decrease in the number of
directors effected by any such resolution shall change the term of any
director in office at the time that any such resolution is adopted. The
directors shall be elected at the annual meeting of the stockholders, except
as provided in Section 3.2, and each director shall hold office until a
successor is elected and qualified or until such director's earlier
resignation or removal. Directors need not be stockholders.
Section 3.2. Vacancies. Vacancies and newly created
directorships resulting from any increase in the authorized number of
directors may be filled by a majority of the directors then in office, though
less than a quorum, or by a sole remaining director, and each of the directors
so chosen shall hold office until the next annual election and until a
successor is elected and qualified or until such director's earlier
resignation or removal.
Section 3.3. Authority. The business of the Corporation shall
be managed by or under the direction of its Board of Directors, which shall
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute, by the certificate of incorporation or by these
by-laws directed or required to be exercised or done by the stockholders or
are not by these by-laws or by resolution of the Board of Directors or a
committee thereof, in either case not inconsistent with the statutes, the
certificate of incorporation or these by-laws, authorized or directed to be
done by the officers of the Corporation.
Section 3.4. Place of Meeting. The Board of Directors of the
Corporation or any committee thereof may hold meetings, both regular and
special, either within or without the State of Delaware.
Section 3.5. Annual Meeting. The first meeting of each newly
elected Board of Directors shall be held immediately following the adjournment
of the annual meeting of stockholders. No notice of such meeting shall be
necessary to the directors in order legally to constitute the meeting,
provided a quorum be present. In the event such meeting is not so held, the
meeting may be held at such time and place as shall be specified in a notice
given as hereinafter provided for special meetings of the Board of Directors.
Section 3.6. Regular Meetings. Regular meetings of the Board
of Directors may be held without notice at such time and at such place as
shall from time to time be determined by the Board of Directors.
Section 3.7. Special Meetings. Special meetings of the Board
of Directors may be called by the chairman of the board, the chief executive
officer or the president and shall be called by the president or the secretary
on the written request of at least two directors. Notice of special meetings
of the Board of Directors shall be given to each director at least three
calendar days before the meeting if by mail or at least the calendar day
before the meeting if given in person or by telephone, telegraph, telex or
similar means of electronic transmission. The notice need not specify the
business to be transacted.
Section 3.8. Emergency Meetings. In the event of an emergency
which in the judgment of the chairman of the board, the chief executive
officer or the president requires immediate action, a special meeting may be
convened without notice, consisting of those directors who are immediately
available in person or by telephone and can be joined in the meeting in person
or by conference telephone. The actions taken at such a meeting shall be
valid if at least a quorum of the directors participates either personally or
by conference telephone.
Section 3.9. Quorum; Vote Required. At meetings of the Board
of Directors, a majority of the directors at the time in office shall
constitute a quorum for the transaction of business and the act of a majority
of the directors present at any meeting at which there is a quorum shall be
the act of the Board of Directors. If a quorum shall not be present at any
meeting of the Board of Directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 3.10. Organization. The Board of Directors may elect
one of its members to be chairman of the board and may fill any vacancy in the
position of chairman of the board at such time and in such manner as the Board
of Directors shall determine. The chairman of the board may but need not be
an officer of or employed in an executive or other capacity by the
Corporation. The chairman of the board shall preside at meetings of the Board
of Directors and lead the Board of Directors in fulfilling its
responsibilities as defined in Section 3.3. In the absence of the chairman
of the board or if there should be no chairman of the board, the chief
executive officer shall preside at meetings of the Board of Directors.
Section 3.11. Committees. The Board of Directors may, by
resolution adopted by a majority of the whole Board of Directors, designate
one or more committees, each committee to consist of two or more of the
directors of the Corporation, which, to the extent provided in the resolution,
shall have any exercise the powers of the Board of Directors in the management
of the business and affairs of the Corporation, including the power and
authority to declare a dividend, to authorize the issuance of stock, and to
adopt a Certificate of Ownership and Merger pursuant to Section 253 of the
Delaware General Corporation Law, and may authorize the seal of the
Corporation to be affixed to all papers which may require it; provided that no
such committee shall have the power or authority to amend the certificate of
incorporation, adopt an agreement of merger or consolidation, recommend to the
stockholders the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, recommend to the stockholders a dissolution
of the Corporation or a revocation of a dissolution, or amend the by-laws of
the Corporation. Such committee or committees shall have such name or names
as may be determined from time to time by resolution adopted by the Board of
Directors. Unless the Board of Directors designates one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee, the members of any such committee
present at any meeting and not disqualified from voting may, whether or not
they constitute a quorum, unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any absent or disqualified
member of such committee. At meetings of any such committee, a majority of
the members or alternate members of such committee shall constitute a quorum
for the transaction of business, and the act of a majority of members or
alternate members present at any meeting at which there is a quorum shall be
the act of the committee.
Section 3.12. Minutes of Committee Meetings. The committees
shall keep regular minutes of their proceedings and, when requested to do so
by the Board of Directors, shall report the same to the Board of Directors.
Section 3.13. Action by Written Consent. Any action required
or permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if a written consent thereto
is signed by all members of the Board of Directors or of such committee, as
the case may be, and such written consent is filed with the minutes of
proceedings of the Board of Directors or committee.
Section 3.14. Participation by Conference Telephone. The
members of the Board of Directors or any committee thereof may participate in
a meeting of the Board of Directors or such committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other and such participation shall
constitute presence in person at such meeting.
Section 3.15. Compensation of Directors. The directors may be
paid their expenses of attendance at each meeting of the Board of Directors or
of any special or standing committee thereof. The Board of Directors may
establish by resolution from time to time the fees to be paid to each director
who is not an officer or employee of the Corporation or any of its
subsidiaries for serving as a director of the Corporation, for serving on any
special or standing committee of the Board of Directors, and for attending
meetings of the Board of Directors or of any special or standing committee
thereof. No such payment shall preclude any such director from serving the
Corporation in any other capacity and receiving compensation therefor.
ARTICLE 4
Notices
Section 4.1. Giving of Notice. Notices to directors and
stockholders mailed to them at their addresses appearing on the books of the
Corporation shall be deemed to be given at the time when deposited in the
United States mail.
Section 4.2. Waiver of Notice. Whenever any notice is
required to be given under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, a waiver thereof in writing,
signed by the person or persons entitled to said notice, whether before or
after the time stated therein, shall be deemed equivalent to notice.
Attendance of a person at a meeting shall constitute a waiver of notice of such
meeting except when the person attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened.
ARTICLE 5
Officers
Section 5.1. Selection of Officers. The officers of the
Corporation shall be chosen by the Board of Directors at its first meeting
after each annual meeting of stockholders and shall be a chief executive
officer, who shall be a director, a president, one or more vice presidents and
a secretary. Any number of offices may be held by the same person.
Section 5.2. Other Officers. The Board of Directors may
appoint such other officers, assistant officers and agents as it desires who
shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of
Directors.
Section 5.3. Term of Office, Etc. The officers of the
Corporation shall hold office at the pleasure of the Board of Directors. Each
officer shall hold office until a successor is elected and qualified or until
such officer's earlier resignation or removal. Any officer may resign at any
time upon written notice to the Corporation. Any officer elected or appointed
by the Board of Directors may be removed at any time by the Board of
Directors. Any vacancy occurring in any office of the Corporation by death,
resignation, removal or otherwise shall be filled by the Board of Directors.
Section 5.4. Chief Executive Officer. The chief executive
officer of the Corporation shall preside at all meetings of the stockholders,
shall have the responsibility for the general and active management and
control of the affairs and business of the Corporation, shall perform all
duties and have all powers which are commonly incident to the office of chief
executive or which are delegated to the chief executive officer by the Board
of Directors, and shall see that all orders and resolutions of the Board of
Directors are carried into effect. The chief executive officer shall have the
authority to sign all certificates of stock, bonds, deeds, contracts and other
instruments of the Corporation that are authorized and shall have general
supervision and direction of all of the other officers and agents of the
Corporation.
Section 5.5. President. The president, who may also be the
chief executive officer of the Corporation, shall perform all duties and have
all powers which are commonly incident to the office of president or which are
delegated to the president by the Board of Directors, and shall see that all
orders and resolutions of the Board of Directors are carried into effect. In
the absence or disability of the chief executive officer, the president shall
exercise perform the duties and exercise the powers of the chief executive
officer. The president shall have the authority to sign all certificates of
stock, bonds, deeds, contracts and other instruments of the Corporation that
are authorized.
Section 5.6. Vice Presidents. The vice presidents shall act
under the direction of the chief executive officer and in the absence or
disability of both the chief executive officer and the president shall perform
the duties and exercise the powers of the chief executive officer. They shall
perform such other duties and have such other powers as the chief executive
officer or the Board of Directors may from time to time prescribe. The Board
of Directors may designate one or more executive or senior vice presidents or
may otherwise specify the order of seniority of the vice presidents, and in
that event the duties and powers of the chief executive officer shall descend
to the vice presidents in such specified order of seniority.
Section 5.7. Secretary. The secretary shall act under the
direction of the chief executive officer. Subject to the direction of the
chief executive officer, the secretary shall attend all meetings of the Board
of Directors and all meetings of the stockholders and record the proceedings
in a book to be kept for that purpose, and the secretary shall perform like
duties for the standing committees of the Board of Directors when requested to
do so. The secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, shall have
charge of the original stock books, stock transfer books and stock ledgers of
the Corporation, and shall perform such other duties as may be prescribed by
the chief executive officer or the Board of Directors. The secretary shall
have custody of the seal of the Corporation and cause it to be affixed to any
instrument requiring it, and when so affixed, it may be attested by the
secretary's signature. The Board of Directors may give general authority to
any other officer to affix the seal of the Corporation and to attest the
affixing by such officer's signature.
Section 5.8. Assistant Secretaries. The assistant secretaries
in order of their seniority, unless otherwise determined by the chief
executive officer or the Board of Directors, shall, in the absence or
disability of the secretary, perform the duties and exercise the powers of the
secretary. They shall perform such other duties and have such other powers as
the chief executive officer or the Board of Directors may from time to time
prescribe.
ARTICLE 6
Certificates of Stock
Section 6.1. Issuance. The stock of the Corporation shall be
represented by certificates, provided that the Board of Directors may provide
by resolution for any or all of the stock to be uncertificated shares.
Notwithstanding any resolution by the board of directors providing for
uncertificated shares, every holder of stock in the Corporation represented by
certificates and, upon request, every holder of uncertificated shares in the
Corporation shall be entitled to have a certificate signed by, or in the name
of the Corporation by, the chairman of the board (or the vice chairman of the
board, if any), the president or a vice president and the treasurer or an
assistant treasurer or the secretary or an assistant secretary of the
Corporation, certifying the number of shares owned by such holder in the
Corporation.
Section 6.2. Facsimile Signatures. If a certificate is
countersigned (a) by a transfer agent other than the Corporation or its
employee, or (b) by a registrar other than the Corporation or its employee,
the signatures of the officers of the Corporation may be facsimiles. In case
any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall cease to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued
with the same effect as if he were such officer, transfer agent or registrar
at the date of issue. The seal of the Corporation or a facsimile thereof may,
but need not, be affixed to certificates of stock.
Section 6.3. Lost Certificates, Etc. The Board of Directors
may establish procedures for the issuance of a new certificate of stock in
place of any certificate theretofore issued by the Corporation alleged to have
been lost, stolen or destroyed and may in connection therewith require, among
other things, the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost, stolen or destroyed and the giving by
such person to the Corporation of a bond in such sum as may be specified
pursuant to such procedures as indemnity against any claim that may be made
against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 6.4. Transfer. Upon surrender to the Corporation or
the transfer agent of the Corporation of a certificate for shares duly
endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, it shall be the duty of the Corporation, if it shall be
satisfied that all provisions of the certificate of incorporation, of the
by-laws and of the law regarding the transfer of shares have been duly
complied with, to issue a new certificate to the person entitled thereto,
cancel the old certificate and record the transaction upon its books.
[Transfers of uncertificated shares shall be effected and recorded in the
manner prescribed or approved by the Board of Directors or established by the
transfer agent and approved by the Board of Directors, as the case may be.]
Section 6.5. Registered Stockholders. The Corporation shall
be entitled to recognize the person registered on its books as the owner of
shares to be the exclusive owner for all purposes including voting and
dividends, and the Corporation shall not be bound to recognize any equitable
or other claim to or interest in such share or shares on the part of any other
person, whether or not it shall have express or other notice thereof, except
as otherwise provided by the laws of Delaware.
Section 6.6. Record Date. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock
or for the purpose of any other lawful action, the Board of Directors may fix,
in advance, a record date, which shall not be more than sixty or less than ten
days before the date of such meeting, and not more than sixty days prior to
any other action. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of Directors may
fix a new record date for the adjourned meeting.
ARTICLE 7
Miscellaneous
Section 7.1. Declaration of Dividends. Dividends upon the
shares of the capital stock of the Corporation may be declared and paid by the
Board of Directors from the funds legally available therefor. Dividends may
be paid in cash, in property, or in shares of the capital stock of the
corporation.
Section 7.2. Reserves. The directors of the Corporation may
set apart out of any of the funds of the Corporation available for dividends a
reserve or reserves for such purposes as the directors shall think conducive
to the interest of the Corporation, and the directors may modify or abolish
any such reserve.
Section 7.3. Fiscal Year. The fiscal year of the Corporation
shall be fixed by resolution of the Board of Directors.
Section 7.4. Corporate Seal. The corporate seal shall have
inscribed thereon the name of the Corporation, the year of its organization
and the words "Corporate Seal, Delaware". The seal may be used by causing it
or a facsimile thereof to be impressed or affixed or in any other manner
reproduced.
ARTICLE 8
Indemnification
Section 8.1. In General. Any person who was or is a party or
is threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he or a person of whom is the legal representative, is
or was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation or for its benefit as a director,
officer, employee or agent of another corporation, or as its representative in
a partnership, joint venture, trust or other enterprise, shall be indemnified
and held harmless to the fullest extent legally permissible under and pursuant
to any procedure specified in or pursuant to the General Corporation Law of
the State of Delaware, as amended from time to time, from and against any and
all expenses, liabilities and losses (including without limitation attorney's
fees, judgments, fines and amounts paid or to be paid in settlement) actually
and reasonably incurred or suffered by such person in connection therewith.
Such right of indemnification shall be a contract right which may be enforced
in any manner desired by such person. Such right of indemnification shall not
be exclusive of any other right which such directors, officers, employees,
agents or representatives may have or hereafter acquire and, without limiting
the generality of the foregoing, they shall be entitled to their respective
rights of indemnification under any by-law, agreement, vote of stockholders
or the Board of Directors, provision of law or otherwise, as well as their
rights under this Article.
Section 8.2. Insurance. The Board of Directors may cause the
Corporation to purchase and maintain insurance on behalf of any person who is
or was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation or as its representative in a partnership, joint
venture, trust or other enterprise against any liability asserted against such
person and incurred in any such capacity, or arising out of such status,
whether or not the Corporation would have the power to indemnify such person
against such liability.
Section 8.3. Additional Indemnification. The Board of
Directors may from time to time adopt further by-laws with respect to
indemnification and may amend these by-laws and such by-laws to provide at all
times the fullest indemnification permitted by the General Corporation Law of
the State of Delaware, as amended from time to time.
ARTICLE 9
Amendments
Section 9.1. By the Stockholders. The by-laws may be amended
by a majority vote of all the stock issued and outstanding and entitled to
vote at any annual or special meeting of the stockholders, provided that
notice of intention to amend shall have been contained in the notice of the
meeting.
Section 9.2. By the Board of Directors. The Board of
Directors by a majority vote of the whole Board of Directors at any meeting
may amend these by-laws, including by-laws adopted by the stockholders, but
the stockholders may from time to time specify particular provisions of the
by-laws which shall not be amended by the Board of Directors.
EXHIBIT 3
Graphic Omitted
NUMBER SHARES
SE
COMMON STOCK COMMON STOCK
INCORPORATED UNDER THE LAWS CUSIP 81211K 10 0
OF THE STATE OF DELAWARE SEE REVERSE FOR
CERTAIN DEFINITIONS
Sealed Air Corporation
THIS CERTIFIES that
is the owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK,
PAR VALUE $0.10 PER SHARE, OF
Sealed Air Corporation, transferable on the books of the Corporation by the
holder hereof in person or by duly authorized attorney upon surrender of
this certificate properly endorsed. This certificate, and the shares
represented hereby are subject to all the terms, conditions and limitations
of the Certificate of Incorporation and all Amendments thereto and
Supplements thereof. This certificate is not valid until countersigned by
the Transfer Agent and registered by the Registrar.
In Witness Whereof, the Corporation has caused this certificate to be
signed by the facsimile signatures of its duly authorized officers and to
be sealed with the facsimile seal of the Corporation.
Dated
SEALED AIR CORPORATION
H. Katherine White CORPORATE SEAL T.J. Dermot Dunphy
Secretary 1996 Chairman of the Board
DELAWARE
COUNTERSIGNED AND REGISTERED:
FIRST CHICAGO TRUST COMPANY OF NEW YORK
TRANSFER AGENT AND REGISTRAR
BY___________________________
AUTHORIZED OFFICER
<PAGE>
SEALED AIR CORPORATION
THE CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO
REQUESTS A STATEMENT OF THE RIGHTS, PRIVILEGES, RESTRICTIONS, POWERS,
LIMITATIONS AND QUALIFICATIONS OF EACH CLASS OF STOCK OR SERIES THEREOF OF
THE CORPORATION. SUCH REQUEST MAY BE DIRECTED TO THE SECRETARY OF SEALED
AIR CORPORATION AT ITS HEADQUARTERS OFFICE OR TO THE TRANSFER AGENT.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT -- ______________Custodian______________
(Cust) (Minor)
under Uniform Gifts to Minors
Act ____________
(State)
Additional abbreviations may also be used though not in the above list.
For value received, _________ hereby, sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- ---------------------------------------
______________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
______________________________________________________________________________
______________________________________________________________________________
________________________________________________________________________shares
of the common stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
______________________________________________________________________Attorney
to transfer the said stock on the books of the within named Corporation
with full power of substitution in the promises.
Dated
---------------
-------------------------------------------
Notice: The signature to this assignment
must correspond with the name
as written upon the face of
this certificate in every
particular, without alteration
or enlargement or any change
whatever.
SIGNATURE GUARANTEE:
---------------------------------------------------------
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE
GUARANTOR INSTITUTION (BANKS, STOCK-BROKERS, SAVINGS
AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE
MEDALLION PROGRAM), PURSUANT TO S.E.C. RULE 17Ad-15.
/NET/BANKNOTE/HOME46/SEALED/55561 NEW
EXHIBIT 4
Graphic Omitted
NUMBER SHARES
AP
SERIES A CONVERTIBLE SERIES A CONVERTIBLE
PREFERRED STOCK PREFERRED STOCK
INCORPORATED UNDER THE LAWS CUSIP 81211K 20 9
OF THE STATE OF DELAWARE SEE REVERSE FOR
CERTAIN DEFINITIONS
Sealed Air Corporation
THIS CERTIFIES that
is the owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF THE SERIES A CONVERTIBLE PREFERRED
STOCK, PAR VALUE $0.10 PER SHARE OF
Sealed Air Corporation, transferable on the books of the Corporation by the
holder herof in person or by duly authorized attorney upon surrender of
this certificate properly endorsed. This certificate, and the shares
represented hereby are subject to all the terms, conditions and limitations
of the Certificate of Incorporation and all Amendments thereto and
Supplements thereof. This certificate is not valid until countersigned by
the Transfer Agent and registered by the Registrar.
In Witness Whereof, the Corporation has caused this certificate to be
signed by the facsimile signatures of its duly authorized officers and to
be sealed with the facsimile seal of the Corporation.
Dated
SEALED AIR CORPORATION
H. Katherine White CORPORATE SEAL T.J. Dermot Dunphy
Secretary 1996 Chairman of the Board
DELAWARE
COUNTERSIGNED AND REGISTERED:
FIRST CHICAGO TRUST COMPANY OF NEW YORK
TRANSFER AGENT AND REGISTRAR
BY___________________________
AUTHORIZED OFFICER
<PAGE>
SEALED AIR CORPORATION
THE CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO
REQUESTS A STATEMENT OF THE RIGHTS, PRIVILEGES, RESTRICTIONS, POWERS,
LIMITATIONS AND QUALIFICATIONS OF EACH CLASS OF STOCK OR SERIES THEREOF OF
THIS CORPORATION. SUCH REQUEST MAY BE DIRECTED TO THE SECRETARY OF SEALED
AIR CORPORATION AT ITS HEADQUARTERS OFFICE OR TO THE TRANSFER AGENT.
The following abbreviations, when used in the inscription on the face
of the certificate, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT -- ______________Custodian______________
(Cust) (Minor)
under Uniform Gifts to Minors
Act ____________
(State)
Additional abbreviations may also be used though not in the above list.
For value received, _________ hereby, sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- ---------------------------------------
______________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
______________________________________________________________________________
______________________________________________________________________________
________________________________________________________________________shares
of the Series A convertible preferred stock represented by the within
Certificate, and do hereby irrevocably constitute and appoint
______________________________________________________________________Attorney
to transfer the said stock on the books of the within named Corporation
with full power of substitution in the promises.
Dated
---------------
-------------------------------------------
Notice: The signature to this assignment
must correspond with the name
as written upon the face of
this certificate in every
particular, without alteration
or enlargement or any change
whatever.
SIGNATURE GUARANTEE:
---------------------------------------------------------
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE
GUARANTOR INSTITUTION (BANKS, STOCK-BROKERS, SAVINGS
AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE
MEDALLION PROGRAM), PURSUANT TO S.E.C. RULE 17Ad-15.
/NET/BANKNOTE/HOME46/SEALED/55561 NEW
EXHIBIT 5
CERTIFICATE OF DESIGNATIONS, PREFERENCES
AND RIGHTS OF SERIES A CONVERTIBLE PREFERRED STOCK
OF
W. R. GRACE & CO.
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
The undersigned, pursuant to the provisions of Sections 103 and
151 of the General Corporation Law of the State of Delaware, do hereby certify
that, pursuant to the authority expressly vested in the Board of Directors of
W. R. Grace & Co., a Delaware corporation (the "Corporation"), by the
Corporation's Certificate of Incorporation, the Board of Directors has duly
adopted the following resolutions:
RESOLVED that pursuant to the authority expressly granted to
and vested in the Board of Directors of the Corporation by the Corporation's
Certificate of Incorporation, the Board of Directors hereby provides for the
issuance of and creates a series of Preferred Stock of the Corporation, par
value $0.10 per share (the "Preferred Stock"), and hereby fixes the
designation and amount and the voting powers, designations, preferences and
relative, participating, optional and other special rights, and the
qualifications, limitations and restrictions, of a series of Preferred Stock.
RESOLVED that each share of such series of Preferred Stock
shall rank equally in all respects and shall be subject to the following
provisions:
1. Number of Shares and Designation. 36,000,000 shares of
Preferred Stock of the Corporation shall constitute a series of Preferred
Stock designated as Series A Convertible Preferred Stock (the "Series A
Preferred Stock"). The number of shares of Series A Preferred Stock may be
increased (to the extent of the Corporation's authorized and unissued
Preferred Stock) or decreased (but not below the number of shares of Series
A Preferred Stock then outstanding) by further resolution duly adopted by
the Board of Directors and the filing of a certificate of increase or
decrease, as the case may be, with the Secretary of State of Delaware.
2. Rank. The Series A Preferred Stock shall, with respect
to payment of dividends, redemption payments and rights upon liquidation,
dissolution or winding up of the affairs of the Corporation, (i) rank
senior and prior to the Common Stock of the Corporation, par value $0.10
per share (the "Common Stock"), and each other class or series of equity
securities of the Corporation, whether currently issued or issued in the
future, that by its terms ranks junior to the Series A Preferred Stock
(whether with respect to payment of dividends, redemption payments or
rights upon liquidation, dissolution or winding up of the affairs of the
Corporation) (all of such equity securities, including the Common Stock,
are collectively referred to herein as the "Junior Securities"), (ii) rank
on a parity with each other class or series of equity securities of the
Corporation (other than the Common Stock), whether currently issued or
issued in the future, that does not by its terms expressly provide that it
ranks senior to or junior to the Series A Preferred Stock (whether with
respect to payment of dividends, redemption payments or rights upon
liquidation, dissolution or winding up of the affairs of the Corporation)
(all of such equity securities are collectively referred to herein as the
"Parity Securities"), and (iii) rank junior to each other class or series
of equity securities of the Corporation, whether currently issued or issued
in the future, that by its terms ranks senior to the Series A Preferred
Stock (whether with respect to payment of dividends, redemption payments or
rights upon liquidation, dissolution or winding up of the affairs of the
Corporation) (all of such equity securities are collectively referred to
herein as the "Senior Securities"). The respective definitions of Junior
Securities, Parity Securities and Senior Securities shall also include any
rights or options exercisable or exchangeable for or convertible into any
of the Junior Securities, Parity Securities or Senior Securities, as the
case may be.
3. Dividends.
(a) The holders of shares 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 for the payment of dividends, cash dividends at the
annual rate of $2.00 per share. Such dividends shall be payable quarterly in
arrears, in equal amounts, on ________, ________, ________ and ________ of
each year (unless such day is not a Business Day (as defined below), in which
event such dividends shall be payable on the next succeeding Business Day),
commencing _____________ ___, 1998 (each such payment date being a "Dividend
Payment Date" and from the date of issuance until the first Dividend Payment
Date and each quarterly period thereafter being a "Dividend Period").
Dividends on shares of Series A Preferred Stock shall be cumulative from the
date of issue, whether or not in any Dividend Period there shall be funds of
the Corporation legally available for the payment of dividends. The amount of
dividends payable for each full Dividend Period shall be computed by dividing
the annual dividend rate by four. The amount of dividends payable on the
Series A Preferred Stock for the initial Dividend Period, or for any other
period shorter or longer than a full Dividend Period, shall be computed on the
basis of a 360-day year of twelve 30-day months. As used herein, the term
"Business Day" means any day except a Saturday, Sunday or day on which banking
institutions are legally authorized to close in the City of New York.
(b) Each dividend shall be payable to the holders of record of
shares of Series A Preferred Stock as they appear on the stock records of the
Corporation at the close of business on such record dates (each, a "Dividend
Payment Record Date"), which shall be not more than 60 days nor less than 10
days preceding the Dividend Payment Date thereof, as shall be fixed by the
Board of Directors. Accrued and unpaid dividends for any past Dividend
Periods may be declared and paid at any time, without reference to any
Dividend Payment Date, to holders of record on such date, not more than 60
days nor less than 10 days preceding the payment date thereof, as may be fixed
by the Board of Directors. No interest, or sum of money in lieu of interest,
shall be payable in respect of any dividend payment or payments on the Series
A Preferred Stock that may be in arrears.
(c) Except as described in the next succeeding sentence, so
long as any shares of Series A Preferred Stock are outstanding, (i) no
dividends shall be declared or paid or set apart for payment, or other
distribution declared or made, on any Parity Securities for any period unless
the Corporation has paid or contemporaneously pays or declares and sets apart
for payment on the Series A Preferred Stock all accrued and unpaid dividends
for all Dividend Periods terminating on or prior to the date of payment of
such dividends, and (ii) no dividends shall be declared or paid or set apart
for payment, or other distribution declared or made, on the Series A Preferred
Stock for any Dividend Period unless the Corporation has paid or
contemporaneously pays or declares and sets apart for payment on any Parity
Securities all accrued and unpaid dividends for all dividend payment periods
terminating on or prior to the Dividend Payment Date for such dividends.
Unless and until dividends accrued but unpaid in respect of all past Dividend
Periods with respect to the Series A Preferred Stock and all past dividend
periods with respect to any Parity Securities at the time outstanding shall
have been paid in full or a sum sufficient for such payment is set apart, all
dividends declared by the Corporation upon shares of Series A Preferred Stock
and upon all Parity Securities shall be declared ratably in proportion to the
respective amounts of dividends accrued and unpaid on the Series A Preferred
Stock and Parity Securities.
(d) So long as any shares of Series A Preferred Stock are
outstanding, no dividends shall be declared or paid or set apart for payment,
or other distribution declared or made, upon any Junior Securities (other than
dividends or distributions paid in shares of, or options, warrants or rights
to subscribe for or purchase shares of Junior Securities), nor shall any
Junior Securities be redeemed, purchased or otherwise acquired (other than a
redemption, purchase or other acquisition of shares of Common Stock made for
purposes of any employee or director incentive or benefit plans or
arrangements of the Corporation or any subsidiary of the Corporation) for any
consideration (nor shall any moneys be paid to or made available for a sinking
fund for the redemption of any shares of any such Junior Securities) by the
Corporation, directly or indirectly (except by conversion into or exchange for
Junior Securities), unless in each case (i) the full cumulative dividends on
all outstanding shares of Series A Preferred Stock and any other Parity
Securities shall have been paid or set apart for payment for all past Dividend
Periods with respect to the Series A Preferred Stock and all past dividend
periods with respect to such Parity Securities and (ii) sufficient funds shall
have been paid or set apart for the payment of the dividend for the current
Dividend Period with respect to the Series A Preferred Stock and for the
current dividend period with respect to such Parity Securities.
(e) The Corporation shall not, directly or indirectly, make any
payment on account of any purchase, redemption, retirement or other
acquisition of any Parity Securities (other than for consideration payable
solely in Junior Securities) unless all accrued and unpaid dividends on the
Series A Preferred Stock for all Dividend Payment Periods ending on or before
such payment for such Parity Securities shall have been paid or declared and
set apart for payment.
(f) If at any time the Corporation issues any Senior Securities
and the Corporation shall have failed to declare and pay or set apart for
payment accrued and unpaid dividends on such Senior Securities, in whole or in
part, then (except to the extent allowed by the terms of the Senior
Securities) no dividends shall be declared or paid or set apart for payment on
the Series A Preferred Stock unless and until all accrued and unpaid dividends
with respect to the Senior Securities, including the full dividends for the
then-current dividend period, shall have been declared and paid or set apart
for payment.
4. Liquidation Preference.
(a) The liquidation preference for the shares of Series A
Preferred Stock shall be $50.00 per share, plus an amount equal to the
dividends accrued and unpaid thereon, whether or not declared, to the payment
date (the "Liquidation Value").
(b) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the holders of shares of Series
A Preferred Stock (i) shall not be entitled to receive the Liquidation Value
of such shares until payment in full or provision has been made for the
payment in full of all claims of creditors of the Corporation and the
liquidation preferences for all Senior Securities, and (ii) shall be entitled
to receive the Liquidation Value of such shares before any payment or
distribution of any assets of the Corporation shall be made or set apart for
holders of any Junior Securities. Subject to clause (i) above, if the assets
of the Corporation are not sufficient to pay in full the Liquidation Value
payable to the holders of shares of Series A Preferred Stock and the
liquidation preference payable to the holders of any Parity Securities, then
such assets, or the proceeds thereof, shall be distributed among the holders
of shares of Series A Preferred Stock and any such other Parity Securities
ratably in accordance with the Liquidation Value for the Series A Preferred
Stock and the liquidation preference for the Parity Securities, respectively.
Upon payment in full of the Liquidation Value to which the holders of shares
of Series A Preferred Stock are entitled, the holders of shares of Series A
Preferred Stock will not be entitled to any further participation in any
distribution of assets of the Corporation.
(c) Neither a consolidation or merger of the Corporation with
or into any other entity, nor a merger of any other entity with or into the
Corporation, nor a sale or transfer of all or any part of the Corporation's
assets for cash, securities or other property shall be considered a
liquidation, dissolution or winding up of the Corporation within the meaning
of this Section 4.
5. Redemption.
(a) Optional Redemption. The Series A Preferred Stock shall
not be redeemable prior to __________ __, 2001. During the period from
__________ __, 2001 until __________ __, 2003, the Corporation may redeem at
its option shares of Series A Preferred Stock in accordance with this Section
5 only if the last reported sales price of a share of Common Stock in its
principal trading market for any 20 trading days within a period of 30
consecutive trading days ending on the trading day prior to the date of
mailing the notice of redemption is at least $70.6563. At any time on or
after __________ __, 2001, to the extent the Corporation shall have funds
legally available to redeem shares of Series A Preferred Stock and if
permitted by the immediately preceding sentence, the Corporation may redeem
shares of Series A Preferred Stock, in whole or in part, at the option of the
Corporation, at the applicable cash redemption price per share set forth below
for any redemption during the 12-month period beginning on _______ ____ of the
year indicated:
Year Redemption Price Per Share
------ ----------------------------
2001 $51.40
2002 $51.20
2003 $51.00
2004 $50.80
2005 $50.60
2006 $50.40
2007 $50.20
Thereafter $50.00
plus, in each case, an amount equal to the dividends accrued and unpaid
thereon, whether or not declared, up to but not including the redemption date.
From and after __________ __, 2008, the Corporation may redeem shares of
Series A Preferred Stock, at any time in whole or in part, at the option of
the Corporation, at a cash redemption price per share of $50.00 plus an amount
equal to the dividends accrued and unpaid thereon, whether or not declared, up
to but not including the redemption date.
(b) Mandatory Redemption. To the extent the Corporation shall
have funds legally available for such payment, on __________ __, 2018 (the
"Mandatory Redemption Date), the Corporation shall redeem all outstanding
shares of Series A Preferred Stock at a redemption price of $50.00 per share
in cash, together with accrued and unpaid dividends thereon, whether or not
declared, up to but not including such redemption date, without interest. If
the Corporation is unable or shall fail to discharge its obligation to redeem
all outstanding shares of Series A Preferred Stock on the Mandatory Redemption
Date (the "Mandatory Redemption Obligation"): (i) dividends on the Series A
Preferred Stock shall continue to accrue, without interest, in accordance with
Section 3, and (ii) the Mandatory Redemption Obligation shall be discharged as
soon thereafter as the Corporation is able to discharge such Mandatory
Redemption Obligation. If and for so long as any Mandatory Redemption
Obligation with respect to the Series A Preferred Stock shall not be fully
discharged on the Mandatory Redemption Date, the Corporation shall not (x)
directly or indirectly, redeem, purchase, or otherwise acquire any Parity
Securities or discharge any mandatory or optional redemption, sinking fund or
other similar obligation in respect of any Parity Securities (except in
connection with a redemption, sinking fund or other similar obligation to be
satisfied pro rata with the Series A Preferred Stock) or (y) declare or pay or
set apart for payment any dividends or other distributions upon any Junior
Securities, or, directly or indirectly, discharge any mandatory or optional
redemption, sinking fund or other similar obligation in respect of any Junior
Securities.
6. Procedures for Redemption.
(a) If fewer than all of the outstanding shares of Series A
Preferred Stock are to be redeemed pursuant to Section 5, the shares shall be
redeemed on a pro rata basis (according to the number of shares of Series A
Preferred Stock held by each holder, with any fractional shares rounded to the
nearest whole share) or in such other manner as the Board of Directors may
determine, as may be prescribed by resolution of the Board of Directors.
Notwithstanding the provisions of Section 5 and this Section 6, unless full
cumulative cash dividends (whether or not declared) on all outstanding shares
of Series A Preferred Stock shall have been paid or contemporaneously are
declared and paid or set apart for payment for all Dividend Periods
terminating on or prior to the applicable redemption date, none of the shares
of Series A Preferred Stock shall be redeemed, and no sum shall be set aside
for such redemption, unless shares of Series A Preferred Stock are redeemed
pro rata.
(b) In the event of a redemption of shares of Series A
Preferred Stock pursuant to Section 5, notice of such redemption shall be
given by first class mail, postage prepaid, mailed not less than 15 days nor
more than 60 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; provided that neither the failure to give
such notice nor any defect therein shall affect the validity of the giving of
notice for the redemption of any share of Series A Preferred Stock to be
redeemed, except as to the holder to whom the Corporation has failed to give
said notice or except as to the holder whose notice was defective. Each such
notice shall state: (i) the redemption date; (ii) the number of shares of
Series A Preferred Stock to be redeemed and, if fewer than all the shares held
by such holder are to be redeemed, the number of shares to be redeemed from
such holder; (iii) the redemption price; (iv) the place or places where
certificates for such shares are to be surrendered for payment of the
redemption price; and (v) that dividends on the shares to be redeemed will
cease to accrue on such redemption date. Any notice mailed in the manner
herein provided shall be conclusively presumed to have been duly given whether
or not the holder receives the notice.
(c) If a notice of redemption has been given pursuant to
Section 6(b) and if, on or before the redemption date, the funds necessary for
such redemption (including all dividends on the shares of Series A Preferred
Stock to be redeemed that will accrue to but not including the redemption
date) shall have been set aside by the Corporation, separate and apart from
its other funds, in trust for the pro rata benefit of the holders of the
shares so called for redemption, then on the redemption date, notwithstanding
that any certificates for such shares have not been surrendered for
cancellation, (i) dividends shall cease to accrue on the shares of Series A
Preferred Stock to be redeemed, (ii) the holders of such shares shall cease
to be stockholders with respect to those shares, shall have no interest in or
claims against the Corporation by virtue thereof and shall have no voting or
other rights with respect thereto, except the conversion rights provided in
Section 7 (in accordance with Section 6(e)) and the right to receive the
monies payable upon such redemption, without interest thereon, upon surrender
(and endorsement, if required by the Corporation) of their certificates, and
(iii) the shares evidenced thereby shall no longer be outstanding. Subject to
applicable escheat laws, any monies so set aside by the Corporation and
unclaimed at the end of two years from the redemption date shall revert to the
general funds of the Corporation, after which reversion the holders of such
shares so called for redemption shall look only to the general funds of the
Corporation for the payment of the redemption price, without interest. Any
interest accrued on funds so deposited shall belong to the Corporation and be
paid thereto from time to time.
(d) Upon surrender in accordance with the Corporation's notice
of redemption of the certificates for any shares so redeemed (properly
endorsed or assigned for transfer, if the Board of Directors shall so require
and the notice shall so state), such shares shall be redeemed by the
Corporation at the redemption price aforesaid. In case fewer than all the
shares represented by any such certificate are redeemed, a new certificate
shall be issued representing the unredeemed shares without cost to the holder
thereof.
(e) If a notice of redemption has been given pursuant to
Section 6(b) and any holder of shares of Series A Preferred Stock shall, prior
to the close of business on the Business Day preceding the redemption date,
give written notice to the Corporation pursuant to Section 7 of the conversion
of any or all of the shares to be redeemed held by the holder (accompanied by
a certificate or certificates for such shares, duly endorsed or assigned to
the Corporation, and any necessary transfer tax payment, as required by
Section 7), then such redemption shall not become effective as to such shares
to be converted and such conversion shall become effective as provided in
Section 7, whereupon any funds deposited by the Corporation for the redemption
of such shares shall (subject to any right of the holder of such shares to
receive the dividend payable thereon as provided in Section 7) immediately
upon such conversion be returned to the Corporation or, if then held in trust
by the Corporation, shall automatically and without further corporate action
or notice be discharged from the trust.
7. Conversion.
(a) Right to Convert.
(i) Subject to the provisions of this Section 7, each
holder of shares of Series A Preferred Stock shall have the
right, at any time and from time to time, at such holder's
option, to convert any or all of such holder's shares of
Series A Preferred Stock, in whole or in part, into fully
paid and non-assessable shares of Common Stock at the
conversion price of $56.525 per share of Common Stock,
subject to adjustment as described in Section 7(c) (as
adjusted, the "Conversion Price"). The number of shares of
Common Stock into which a share of the Series A Preferred
Stock shall be convertible (calculated as to each conversion
to the nearest 1/1,000,000th of a share) shall be determined
by dividing $50.00 by the Conversion Price in effect at the
time of conversion.
(ii) If shares of Series A Preferred Stock are called
for redemption in accordance with Section 5(a), the right to
convert shares so called for redemption shall terminate at
the close of business on the Business Day immediately
preceding the date fixed for redemption unless the
Corporation shall default in making payment of the amount
payable upon such redemption, in which case the conversion
rights for such shares shall continue.
(b) Mechanics of Conversion.
(i) To exercise the conversion right, the holder of
shares of Series A Preferred Stock to be converted shall
surrender the certificate or certificates representing such
shares at the office of the Corporation (or any transfer
agent of the Corporation previously designated by the
Corporation to the holders of Series A Preferred Stock for
this purpose) with a written notice of election to convert
completed and signed, specifying the number of shares to be
converted. Unless the shares issuable upon conversion are
to be issued in the same name as the name in which such
shares of Series A Preferred Stock are registered, each
share surrendered for conversion shall be accompanied by
instruments of transfer, in form satisfactory to the
Corporation, duly executed by the holder or the holder's
duly authorized attorney and an amount sufficient to pay any
transfer or similar tax in accordance with Section
7(b)(vii). As promptly as practicable after the surrender
by the holder of the certificates for shares of Series A
Preferred Stock as aforesaid, the Corporation shall issue
and shall deliver to such holder, or on the holder's written
order to the holder's transferee, a certificate or
certificates for the whole number of shares of Common Stock
issuable upon the conversion of such shares and a check
payable in an amount corresponding to any fractional
interest in a share of Common Stock as provided in Section
7(b)(viii).
(ii) Each conversion shall be deemed to have been
effected immediately prior to the close of business on the
first Business Day (the "Conversion Date") on which the
certificates for shares of Series A Preferred Stock shall
have been surrendered and such notice received by the
Corporation as aforesaid. At such time on the Conversion
Date:
(w) the person in whose name or names any
certificate or certificates for shares of Common Stock
shall be issuable upon such conversion shall be deemed
to have become the holder of record of the shares of
Common Stock represented thereby at such time;
(x) such shares of Series A Preferred Stock shall
no longer be deemed to be outstanding and all rights of
a holder with respect to such shares surrendered for
conversion shall immediately terminate except the right
to receive the Common Stock and other amounts payable
pursuant to this Section 7;
(y) in lieu of dividends on such Series A
Preferred Stock pursuant to Section 3, such shares of
Series A Preferred Stock shall participate equally and
ratably with the holders of shares of Common Stock in
all dividends paid on the Common Stock; and
(z) the right of the Corporation to redeem such
shares of Series A Preferred Stock shall terminate,
regardless of whether a notice of redemption has been
mailed as aforesaid.
All shares of Common Stock delivered upon conversion of the
Series A Preferred Stock will, upon delivery, be duly and
validly issued and fully paid and non-assessable, free of
all liens and charges and not subject to any preemptive
rights.
(iii) Holders of shares of Series A Preferred Stock at the
close of business on a Dividend Payment Record Date shall be
entitled to receive the dividend payable on such shares on
the corresponding Dividend Payment Date notwithstanding the
conversion thereof following such Dividend Payment Record
Date and prior to such Dividend Payment Date. However,
shares of Series A Preferred Stock surrendered for
conversion during the period between the close of business
on any Dividend Payment Record Date and the opening of
business on the corresponding Dividend Payment Date (except
shares converted after the issuance of a notice of
redemption during such period, which shall be entitled to
such dividend on the Dividend Payment Date) must be
accompanied by payment of an amount equal to the dividend
payable on such shares on such Dividend Payment Date;
provided that notwithstanding such surrender of shares for
conversion after such Dividend Payment Record Date, the
holders thereof at the close of business on such Dividend
Payment Record Date shall be entitled to receive the
dividend payable on such shares on the corresponding
Dividend Payment Date. A holder of shares of Series A
Preferred Stock on a Dividend Payment Record Date who (or
whose transferee) tenders any such shares for conversion
into shares of Common Stock on such Dividend Payment Date
will receive the dividend payable by the Corporation on such
shares of Series A Preferred Stock on such date, and the
converting holder need not include payment of the amount of
such dividend upon surrender of shares of Series A Preferred
Stock for conversion.
(iv) Except as provided in clause (iii) above and in
Section 7(c), the Corporation shall make no payment or
adjustment for accrued and unpaid dividends on shares of
Series A Preferred Stock, whether or not in arrears, on
conversion of such shares or for dividends in cash on the
shares of Common Stock issued upon such conversion.
(v) The Corporation covenants that it will at all times
reserve and keep available, free from preemptive rights,
such number of its authorized but unissued shares of Common
Stock as shall be required for the purpose of effecting
conversions of the Series A Preferred Stock. Prior to the
delivery of any securities which the Corporation shall be
obligated to deliver upon conversion of the Series A
Preferred Stock, the Corporation shall comply with all
applicable federal and state laws and regulations which
require action to be taken by the Corporation.
(vi) The Corporation will pay any and all documentary
stamp or similar issue or transfer taxes payable in respect
of the issuance or delivery of shares of Common Stock on
conversion of the Series A Preferred Stock pursuant hereto;
provided that the Corporation shall not be required to pay
any tax which may be payable in respect of any transfer
involved in the issuance or delivery of shares of Common
Stock in a name other than that of the holder of the Series
A Preferred Stock to be converted, and no such issuance or
delivery shall be made unless and until the person
requesting such issuance or delivery has paid to the
Corporation the amount of any such tax or has established,
to the satisfaction of the Corporation, that such tax has
been paid.
(vii) In connection with the conversion of any shares of
Series A Preferred Stock, no fractions of shares of Common
Stock shall be issued, but in lieu thereof the Corporation
shall pay a cash adjustment in respect of such fractional
interest in an amount equal to such fractional interest
multiplied by the Daily Price (as defined below) per share
of Common Stock on the Conversion Date. In the absence of a
Daily Price, the Board of Directors shall in good faith
determine the current market price on such basis as it
considers appropriate, and such current market price shall
be used to calculate the cash adjustment. As used herein,
"Daily Price" means (w) if the shares of such class of
Common Stock are then listed and traded on the New York
Stock Exchange, Inc. ("NYSE"), the closing price on such
day as reported on the NYSE Composite Transactions Tape;
(x) if the shares of such class of Common Stock are not then
listed and traded on the NYSE, the closing price on such day
as reported by the principal national securities exchange on
which the shares are listed and traded; (y) if the shares
of such class of Common Stock are not then listed and traded
on any such securities exchange, the last reported sale
price on such day on the National Market of the National
Association of Securities Dealers, Inc. Automated Quotation
System ("NASDAQ"); or (z) if the shares of such class of
Common Stock are not then traded on the NASDAQ National
Market, the average of the highest reported bid and lowest
reported asked price on such day, as reported by NASDAQ.
(c) Adjustments to Conversion Price. The Conversion Price
shall be adjusted from time to time as follows:
(i) If, at any time after the date of issuance of the
Series A Preferred Stock, the Corporation shall (A) pay a
dividend or make a distribution on any class of its capital
stock in shares of its Common Stock, (B) subdivide its
outstanding shares of Common Stock into a greater number of
shares or (C) combine its outstanding shares of Common Stock
into a smaller number of shares, the Conversion Price in
effect immediately prior thereto shall be adjusted as
provided below so that the Conversion Price thereafter shall
be determined by multiplying the Conversion Price at which
the shares of Series A Preferred Stock were theretofore
convertible by a fraction, the numerator of which shall be
the number of shares of Common Stock outstanding immediately
prior to such action, and the denominator of which shall be
the number of shares of Common Stock outstanding immediately
following such action. Such adjustment shall be made
whenever any event listed above shall occur and shall become
effective retroactively immediately after the record date in
the case of a dividend and immediately after the effective
date in the case of a subdivision or combination.
(ii) If, at any time after the date of issuance of the
Series A Preferred Stock, the Corporation shall issue rights
or warrants to all holders of its Common Stock entitling
them (for a period expiring within 45 days after the record
date for determining stockholders entitled to receive such
rights or warrants) to subscribe for or purchase shares of
Common Stock at a price per share less than the current
market price per share of Common Stock at the record date
therefor (as determined in accordance with the provisions of
Section 7(c)(iv)), the "Current Market Price"), or in case
the Corporation shall issue to all holders of its Common
Stock other securities convertible into or exchangeable for
Common Stock for a consideration per share of Common Stock
deliverable upon conversion or exchange thereof less than
the Current Market Price, then the Conversion Price in
effect immediately prior thereto shall be adjusted as
provided below so that the Conversion Price therefor shall
be equal to the price determined by multiplying (A) the
Conversion Price at which shares of Series A Preferred Stock
were theretofore convertible by (B) a fraction of which the
numerator shall be the sum of (1) the number of shares of
Common Stock outstanding on the date of issuance of the
convertible or exchangeable securities, rights or warrants
and (2) the number of additional shares of Common Stock that
the aggregate offering price for the number of shares of
Common Stock so offered would purchase at the Current Market
Price per share of Common Stock, and of which the
denominator shall be the sum of (1) the number of shares of
Common Stock outstanding on the date of issuance of such
convertible or exchangeable securities, rights or warrants
and (2) the number of additional shares of Common Stock
offered for subscription or purchase, or issuable upon such
conversion or exchange. Such adjustment shall be made
whenever such convertible or exchangeable securities, rights
or warrants are issued, and shall become effective
immediately after the record date for the determination of
stockholders entitled to receive such securities. However,
upon the expiration of any right or warrant to purchase
Common Stock, the issuance of which resulted in an
adjustment in the Conversion Price pursuant to this Section
7(c)(ii), if any such right or warrant shall expire and
shall not have been exercised, the Conversion Price shall be
recomputed immediately upon such expiration and effective
immediately upon such expiration shall be increased to the
price it would have been (but reflecting any other
adjustments to the Conversion Price made pursuant to the
provisions of this Section 7(c) after the issuance of such
rights or warrants) had the adjustment of the Conversion
Price made upon the issuance of such rights or warrants been
made on the basis of offering for subscription or purchase
only that number of shares of Common Stock actually
purchased upon the exercise of such rights or warrants. No
further adjustment shall be made upon exercise of any right,
warrant, convertible security or exchangeable security if
any adjustment shall have been made upon issuance of such
security.
(iii) If, at any time after the date of issuance of the
Series A Preferred Stock, the Corporation shall distribute
to all holders of its Common Stock (including any dividend
paid in connection with a consolidation or merger in which
the Corporation is the continuing corporation) any shares of
capital stock of the Corporation or its subsidiaries (other
than Common Stock) or evidences of its indebtedness, cash or
other assets (excluding dividends payable solely in cash
that may from time to time be fixed by the Board of
Directors, or dividends or distributions in connection with
the liquidation, dissolution or winding up of the
Corporation) or rights or warrants to subscribe for or
purchase any of its securities or those of its subsidiaries
or securities convertible or exchangeable for Common Stock
(excluding those securities referred to in Section
7(c)(ii)), then in each such case the Conversion Price in
effect immediately prior thereto shall be adjusted as
provided below so that the Conversion Price thereafter shall
be equal to the price determined by multiplying (A) the
Conversion Price in effect on the record date mentioned
below by (B) a fraction, the numerator of which shall be the
Current Market Price per share of Common Stock on the record
date mentioned below less the then fair market value (as
determined by the Board of Directors, whose good faith
determination shall be conclusive) as of such record date of
the assets, evidences of indebtedness or securities so paid
with respect to one share of Common Stock, and the
denominator of which shall be the Current Market Price per
share of Common Stock on such record date; provided,
however, that in the event the then fair market value (as so
determined) so paid with respect to one share of Common
Stock is equal to or greater than the Current Market Price
per share of Common Stock on the record date mentioned
above, in lieu of the foregoing adjustment, adequate
provision shall be made so that each holder of shares of
Series A Preferred Stock shall have the right to receive the
amount and kind of assets, evidences of indebtedness, or
securities such holder would have received had such holder
converted each such share of Series A Preferred Stock
immediately prior to the record date for such dividend.
Such adjustment shall be made whenever any such payment is
made, and shall become effective retroactively immediately
after the record date for the determination of stockholders
entitled to receive the payment.
(iv) For the purpose of any computation under Sections
7(c)(ii) or 7(c)(iii), the Current Market Price per share of
Common Stock at any date shall be deemed to be the average
Daily Price for the 30 consecutive trading days commencing
35 trading days before the day in question.
(v) No adjustment in the Conversion Price shall be
required unless the adjustment would require an increase or
decrease of at least 1% in the Conversion Price then in
effect; provided, however, that any adjustments that by
reason of this Section 7(c)(v) are not required to be made
shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Section
7(c) shall be made to the nearest cent.
(vi) In the event that, at any time as a result of an
adjustment made pursuant to Section 7(c)(i) or 7(c)(iii),
the holder of any shares of Series A Preferred Stock
thereafter surrendered for conversion shall become entitled
to receive any shares of the Corporation or its
subsidiaries, other than shares of the Common Stock,
thereafter the number of such other shares so receivable
upon conversion of any share of Series A Preferred Stock
shall be subject to adjustment from time to time in a manner
and on terms as nearly equivalent as practicable to the
provisions with respect to the Common Stock contained in
Sections 7(c)(i) through 7(c)(v), and the other provisions
of this Section 7 with respect to the Common Stock shall
apply on like terms to any such other shares.
(vii) Whenever the Conversion Price is adjusted, as
herein provided, the Corporation shall promptly file with
the transfer agent for the Series A Preferred Stock a
certificate of an officer of the Corporation setting forth
the Conversion Price after the adjustment and setting forth
a brief statement of the facts requiring such adjustment and
a computation thereof. The certificate shall be prima facie
evidence of the correctness of the adjustment. The
Corporation shall promptly cause a notice of the adjusted
Conversion Price to be mailed to each registered holder of
shares of Series A Preferred Stock.
(viii) In case of any reclassification of the Common
Stock, any consolidation of the Corporation with, or merger
of the Corporation into, any other entity, any merger of
another entity into the Corporation (other than a merger
that does not result in any reclassification, conversion,
exchange or cancellation of outstanding shares of Common
Stock of the Corporation), any sale or transfer of all or
substantially all of the assets of the Corporation or any
compulsory share exchange pursuant to which share exchange
the Common Stock is converted into other securities, cash or
other property, then lawful provision shall be made as part
of the terms of such transaction whereby the holder of each
share of Series A Preferred Stock then outstanding shall
have the right thereafter, during the period such share
shall be convertible, to convert such share only into the
kind and amount of securities, cash and other property
receivable upon the reclassification, consolidation, merger,
sale, transfer or share exchange by a holder of the number
of shares of Common Stock of the Corporation into which a
share of Series A Preferred Stock would have been
convertible immediately prior to the reclassification,
consolidation, merger, sale, transfer or share exchange.
The Corporation, the person formed by the consolidation or
resulting from the merger or which acquires such assets or
which acquires the Corporation's shares, as the case may be,
shall make provisions in its certificate or articles of
incorporation or other constituent documents to establish
such rights and to ensure that the dividend, voting and
other rights of the holders of Series A Preferred Stock
established herein are unchanged, except as permitted by
Section 9 and applicable law. The certificate or articles
of incorporation or other constituent documents shall
provide for adjustments, which, for events subsequent to the
effective date of the certificate or articles of
incorporation or other constituent documents, shall be as
nearly equivalent as may be practicable to the adjustments
provided for in this Section 7. The provisions of this
Section 7(c)(viii) shall similarly apply to successive
reclassifications, consolidations, mergers, sales, transfers
or share exchanges.
(d) Optional Reduction in Conversion Price. The
Corporation may at its option reduce the Conversion Price from time to time
by any amount for any period of time if the period is at least 20 days and
if the reduction is irrevocable during the period. Whenever the Conversion
Price is so reduced, the Corporation shall mail to holders of record of the
Series A Preferred Stock a notice of the reduction at least 15 days before
the date the reduced Conversion Price takes effect, stating the reduced
Conversion Price and the period it will be in effect. A voluntary
reduction of the Conversion Price does not change or adjust the Conversion
Price otherwise in effect for purposes of Section 7(c).
8. Status of Shares. All shares of Series A Preferred Stock
that are at any time redeemed pursuant to Section 5 or converted pursuant to
Section 7 and all shares of Series A Preferred Stock that are otherwise
reacquired by the Corporation shall (upon compliance with any applicable
provisions of the laws of the State of Delaware) have the status of authorized
but unissued shares of Preferred Stock, without designation as to series,
subject to reissuance by the Board of Directors as shares of any one or more
other series.
9. Voting Rights.
(a) The holders of record of shares of Series A Preferred Stock
shall not be entitled to any voting rights except as hereinafter provided in
this Section 9 or as otherwise provided by law.
(b) The holders of the shares of Series A Preferred Stock (i)
shall be entitled to vote with the holders of the Common Stock on all matters
submitted for a vote of holders of Common Stock (voting together with the
holders of Common Stock as one class), (ii) shall be entitled to a number of
votes equal to the number of votes to which shares of Common Stock issuable
upon conversion of such shares of Series A Preferred Stock would have been
entitled if such shares of Common Stock had been outstanding at the time of
the applicable vote and related record date and (iii) shall be entitled to
notice of any stockholders' meeting in accordance with the Certificate of
Incorporation and Bylaws of the Corporation.
(c) If and whenever six quarterly dividends (whether or not
consecutive) payable on the Series A Preferred Stock have not been paid in
full or if the Corporation shall have failed to discharge its Mandatory
Redemption Obligation on or after the Redemption Date, the number of directors
then constituting the Board of Directors shall be increased by two and the
holders of shares of Series A Preferred Stock, together with the holders of
shares of every other series of preferred stock upon which like rights to vote
for the election of two additional directors have been conferred and are
exercisable (resulting from either the failure to pay dividends or the failure
to redeem) (any such other series is referred to as the "Preferred Shares"),
voting as a single class regardless of series, shall be entitled to elect the
two additional directors to serve on the Board of Directors at any annual
meeting of stockholders or special meeting held in place thereof, or at a
special meeting of the holders of the Series A Preferred Stock and the
Preferred Shares called as hereinafter provided. Whenever all arrears in
dividends on the Series A Preferred Stock and the Preferred Shares then
outstanding shall have been paid and dividends thereon for the current
quarterly dividend period shall have been paid or declared and set apart for
payment, or the Corporation shall have fulfilled its Mandatory Redemption
Obligation, as the case may be, then the right of the holders of the Series A
Preferred Stock and the Preferred Shares to elect such additional two
directors shall cease (but subject always to the same provisions for the
vesting of such voting rights in the case of any similar future arrearages in
six quarterly dividends or failure to fulfill any Mandatory Redemption
Obligation), and the terms of office of all persons elected as directors by
the holders of the Series A Preferred Stock and the Preferred Shares shall
forthwith terminate and the number of the Board of Directors shall be reduced
accordingly. At any time after such voting power shall have been so vested in
the holders of shares of Series A Preferred Stock and the Preferred Shares,
the secretary of the Corporation may, and upon the written request of any
holder of Series A Preferred Stock (addressed to the secretary at the
principal office of the Corporation) shall, call a special meeting of the
holders of the Series A Preferred Stock and of the Preferred Shares for the
election of the two directors to be elected by them as herein provided, such
call to be made by notice similar to that provided in the Bylaws of the
Corporation for a special meeting of the stockholders or as required by law.
If any such special meeting required to be called as above provided shall not
be called by the secretary within 20 days after receipt of any such request,
then any holder of shares of Series A Preferred Stock may call such meeting,
upon the notice above provided, and for that purpose shall have access to the
stock records of the Corporation. The directors elected at any such special
meeting shall hold office until the next annual meeting of the stockholders or
special meeting held in lieu thereof if such office shall not have previously
terminated as above provided. If any vacancy shall occur among the directors
elected by the holders of the Series A Preferred Stock and the Preferred
Shares, a successor shall be elected by the Board of Directors, upon the
nomination of the then-remaining director elected by the holders of the Series
A Preferred Stock and the Preferred Shares or the successor of such remaining
director, to serve until the next annual meeting of the stockholders or
special meeting held in place thereof if such office shall not have previously
terminated as provided above.
(d) So long as any shares of Series A Preferred Stock are
outstanding:
(i) the Corporation shall not, without the written
consent or affirmative vote at a meeting called for that purpose
by holders of at least 66-2/3% of the outstanding shares of Series
A Preferred Stock, voting as a single class, amend, alter or
repeal any provision of the Corporation's Certificate of
Incorporation (by merger or otherwise) so as to materially and
adversely affect the preferences, rights or powers of the Series A
Preferred Stock; provided that any such amendment, alteration or
repeal to create, authorize or issue any Junior Securities or
Parity Securities, or any security convertible into, or
exchangeable or exercisable for, shares of Junior Securities or
Parity Securities, shall not be deemed to have any such material
adverse effect; and
(ii) the Corporation shall not, without the written
consent or affirmative vote at a meeting called for that purpose
of at least 66-2/3% of the votes entitled to be cast by the
holders of shares of Series A Preferred Stock and of all other
series of Preferred Stock upon which like rights to vote upon the
matters specified herein have been conferred and are exercisable,
voting as a single class regardless of series, create, authorize
or issue any Senior Securities, or any security convertible into,
or exchangeable or exercisable for, shares of Senior Securities;
(iii) the Corporation shall not, without the written
consent or affirmative vote at a meeting called for that purpose
of at least a majority of the votes entitled to be cast by the
holders of shares of Series A Preferred Stock and of all other
series of Preferred Stock upon which like rights to vote upon the
matters specified herein have been conferred and are exercisable,
voting as a single class regardless of series, create, authorize
or issue any new class of Parity Securities; provided that this
clause (iii) shall not limit the right of the Corporation to issue
Parity Securities in connection with any merger in which the
Corporation is the surviving entity;
provided that no such consent or vote of the holders of Series A Preferred
Stock shall be required if at or prior to the time when such amendment,
alteration or repeal is to take effect, or when the issuance of any such
securities is to be made, as the case may be, all shares of Series A Preferred
Stock at the time outstanding shall have been called for redemption by the
Corporation and the funds necessary for such redemption shall have been set
aside in accordance with Sections 5 and 6.
(e) The consent or votes required in Sections 9(c) and 9(d)
shall be in addition to any approval of stockholders of the Corporation
which may be required by law or pursuant to any provision of the
Corporation's Certificate of Incorporation or Bylaws, which approval shall
be obtained by vote of the stockholders of the Corporation in the manner
provided in Section 9(b).
10. No Other Rights.
(a) The shares of Series A Preferred Stock shall not have any
relative, participating, optional or other special rights and powers except as
set forth herein or as may be required by law.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
duly executed on its behalf and attested by its undersigned duly authorized
officers this ____ day of _____________, 1998.
W. R. GRACE & CO.
By:_______________________________
Name:
Title:
ATTEST:
____________________________________
Name:
Title:
