Exhibit 3.2
GENESEE & WYOMING INC.
CERTIFICATE OF DESIGNATION OF
4.0% SENIOR REDEEMABLE CONVERTIBLE
PREFERRED STOCK, SERIES A, SETTING FORTH THE POWERS,
PREFERENCES, RIGHTS, QUALIFICATIONS, LIMITATIONS AND
RESTRICTIONS OF SUCH SERIES OF PREFERRED STOCK
Pursuant to Section 151 of the Delaware General Corporation Law,
Genesee & Wyoming Inc., a Delaware corporation (the "Corporation"), DOES
HEREBY CERTIFY:
The Restated Certificate of Incorporation of the Corporation (the
"Charter") confers upon the Board of Directors the authority to provide for
the issuance of shares of Preferred Stock in series and to fix the
designations, powers, preferences and rights of the shares of each such
series and any qualifications, limitations or restrictions thereof. On
August 31, 2000, the Board of Directors of the Corporation, in accordance
with Section 141(c) of the Delaware General Corporation Law conferred upon
the Pricing Committee of the Board of Directors of the Corporation (the
"Pricing Committee") the authority to determine any and all terms and
provisions of a series of Senior Redeemable Convertible Preferred Stock,
including, without limitation, the conversion price of such preferred stock.
On October 18, 2000, the Pricing Committee duly adopted the following
resolution creating a series of Preferred Stock designated as 4.0% Senior
Redeemable Convertible Preferred Stock, Series A, and such resolution has not
been modified and is in full force and effect on the date hereof:
RESOLVED that, pursuant to the authority vested in the Board of
Directors of the Corporation in accordance with the provisions of the
Charter, a series of the class of authorized Preferred Stock, par value $0.01
per share, of the Corporation is hereby created and that the designation and
number of shares thereof and the voting powers, preferences and relative,
participating, optional and other special rights of the shares of such
series, and the qualifications, limitations and restrictions thereof are as
follows:
Section 1. Designation and Number.
(a) The shares of such series shall be designated as 4.0% Senior
Redeemable Convertible Preferred Stock, Series A (the "Preferred Stock").
The number of shares initially constituting the Preferred Stock shall be
25,000, which number may be decreased (but not increased) by the Board of
Directors without a vote of stockholders; provided, however, that such number
may not be decreased below the number of then outstanding shares of Preferred
Stock or shares of Preferred Stock which may be issued pursuant to the Stock
Purchase Agreement.
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(b) The Preferred Stock shall, with respect to dividend rights and
rights on liquidation, dissolution or winding up, rank prior to all other
classes and series of Junior Stock (as defined below) of the Corporation now
or hereafter authorized including, without limitation, the Common Stock.
(c) Capitalized terms used herein and not otherwise defined shall
have the meanings set forth in Section 10 below.
Section 2. Dividends and Distributions.
(a) The holders of shares of Preferred Stock, in preference to the
holders of shares of Common Stock and of any shares of other Junior Stock of
the Corporation, shall be entitled to receive, when, as and if declared by
the Board of Directors, out of the assets of the Corporation legally
available therefor, cumulative cash dividends at an annual rate on the
Liquidation Preference thereof equal to 4.0% calculated on the basis of a
360-day year consisting of twelve 30-day months, accruing and payable in
equal quarterly payments, in immediately available funds, on the last day of
March, June, September and December or, if any such day is not a Business
Day, the next succeeding Business Day, in each year (each such date being
referred to herein as a "Quarterly Dividend Payment Date"), commencing on the
first such Quarterly Dividend Payment Date to occur after the Issue Date with
respect to such shares; provided, however, that with respect to such first
Quarterly Dividend Payment Date to occur after the Issue Date with respect to
such shares, the holders of shares of Preferred Stock shall be entitled to
receive, when, as and if declared by the Board of Directors, out of the
assets of the Corporation legally available therefor, a cash dividend in
respect of each share of Preferred Stock in the amount of (i) $10, multiplied
by (ii) a fraction equal to (A) the number of days from (and including) the
Issue Date to (but excluding) such Quarterly Dividend Payment Date divided by
(B) 90.
(b) Dividends payable pursuant to Section 2(a) with respect to any
shares of Preferred Stock shall begin to accrue from the Issue Date with
respect to such shares, and shall accrue on a daily basis, in each case
whether or not declared. Dividends paid on the shares of Preferred Stock in
an amount less than the total amount of such dividends at the time accrued
and payable on such shares shall be allocated pro rata on a share-by-share
basis among all such shares of Preferred Stock at the time outstanding. The
Board of Directors may fix a record date for the determination of holders of
shares of Preferred Stock entitled to receive payment of a dividend declared
thereon, which record date shall be no more than 60 days or less than 10 days
prior to the date fixed for the payment thereof. Accumulated but unpaid
dividends for any past quarterly dividend periods may be declared and paid at
any time, without reference to any regular Quarterly Dividend Payment Date,
to holders of record on such date, not more than 60 nor less than 10 days
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preceding the payment date thereof, as may be fixed by the Board of
Directors.
(c) In addition to the dividends or distributions on the Preferred
Stock described in Section 2(a), in the event that the Corporation shall
declare a dividend (other than a Regular Dividend) or make any other
distribution (including, without limitation, in cash, in capital stock (which
shall include, without limitation, any options, warrants or other rights to
acquire capital stock) of the Corporation, whether or not pursuant to a
shareholder rights plan, "poison pill" or similar arrangement, or other
property or assets) to holders of Common Stock, then the Board of Directors
shall declare, and the holder of each share of Preferred Stock shall be
entitled to receive, a dividend or distribution in an amount equal to the
amount of such dividend or distribution received by a holder of the number of
shares of Common Stock for which such share of Preferred Stock is convertible
on the record date for such dividend or distribution. Any such amount shall
be paid to the holders of shares of Preferred Stock at the same time such
dividend or distribution is made to holders of Common Stock.
(d) The holders of shares of Preferred Stock shall not be entitled
to receive any dividends or other distributions except as provided herein.
Section 3. Voting Rights.
In addition to any voting rights provided by law, the holders of
shares of Preferred Stock shall have the following voting rights:
(a) So long as the Preferred Stock is outstanding, each share of
Preferred Stock shall entitle the holder thereof to vote, in person or by
proxy, at a special or annual meeting of stockholders, on all matters voted
on by holders of Common Stock voting together as a single class with other
shares entitled to vote thereon. With respect to any such vote, each share
of Preferred Stock shall entitle the holder thereof to cast that number of
votes per share as is equal to the number of votes that such holder would be
entitled to cast had such holder converted his shares of Preferred Stock into
Class A Common Stock on the record date for determining the stockholders of
the Corporation eligible to vote on any such matters.
(b) Unless the consent or approval of a greater number of shares
shall then be required by law, the affirmative vote of the holders of at
least 66 % of the outstanding shares of Preferred Stock, voting separately as
a single class, in person or by proxy, at a special or annual meeting of
stockholders called for the purpose, shall be necessary to:
(i) authorize, increase the authorized number of shares of or
issue (including on conversion or exchange of any convertible or exchangeable
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securities or by reclassification) any shares of any class or classes of
Senior Stock, Parity Stock or Class B Common Stock;
(ii) authorize, increase the authorized number of shares of
or issue any shares of any other class or classes of capital stock having an
optional or mandatory redemption earlier than December 12, 2008;
(iii) authorize, adopt or approve an amendment to the Charter
that would increase or decrease the par value of the shares of Preferred
Stock, or alter or change the powers, preferences or special rights of the
shares of Preferred Stock, Parity Stock, Junior Stock or Senior Stock in a
way that would adversely affect the preferences, rights or powers of the
Preferred Stock or amend the terms of any class of capital stock of the
Corporation to provide that such class of capital stock has an optional or
mandatory redemption date earlier than December 12, 2008;
(iv) amend or alter the Charter so as to affect the shares of
Preferred Stock adversely, including, without limitation, by granting any
voting right to any holder of notes, bonds, debentures or other debt
obligations of the Corporation or by reclassifying any capital stock into
Senior Stock or Parity Stock; or
(v) authorize or issue any security convertible into,
exchangeable for or evidencing the right to purchase or otherwise receive any
shares of any class or classes of Senior Stock or Parity Stock.
(c) (i) The foregoing right of holders of shares of Preferred
Stock to take any action as provided in Section 3(b) may be exercised at any
annual meeting of stockholders or at a special meeting of holders of shares
of Preferred Stock held for such purpose as hereinafter provided or at any
adjournment thereof, or by the written consent, delivered to the Secretary of
the Corporation, of the holders of the minimum number of shares required to
take such action.
(ii) The President of the Corporation may call, and upon the
written request of holders of record of at least 25% of the outstanding
shares of Preferred Stock, addressed to the Secretary of the Corporation at
the principal office of the Corporation, shall call, a special meeting of the
holders of shares entitled to vote as provided in Section 3(b). The subject
matter of such meeting shall relate solely to the matters set forth in
Section 3(b). Such meeting shall be held within 30 days after delivery of
such request to the Secretary, at the place and upon the notice provided by
law and in the by-laws of the Corporation for the holding of meetings of
stockholders.
(iii) At each meeting of stockholders at which the holders of
shares of Preferred Stock shall have the right, voting separately as a single
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class, to take any action, the presence in person or by proxy of the holders
of record of one-third of the total number of shares of Preferred Stock then
outstanding and entitled to vote on the matter shall be necessary and
sufficient to constitute a quorum. At any meeting at which a quorum of the
holders of shares of Preferred Stock is not present, a majority of the
holders of such shares present in person or by proxy shall have the power to
adjourn the meeting as to the actions to be taken by the holders of shares of
Preferred Stock from time to time and place to place without notice other
than announcement at the meeting until a quorum shall be present.
For taking of any action as provided in Section 3(b) by the holders
of shares of Preferred Stock, each such holder shall have one vote for each
share of such stock standing in his name on the transfer books of the
Corporation as of any record date fixed for such purpose or, if no such date
be fixed, at the close of business on the Business Day next preceding the day
on which notice is given, or if notice is waived, at the close of business on
the Business Day next preceding the day on which the meeting is held;
provided, however, that shares of Preferred Stock held by the Corporation or
any Affiliate of the Corporation shall not be deemed to be outstanding for
purposes of taking any action as provided in this Section 3.
Section 4. Certain Restrictions.
(a) Whenever quarterly dividends payable on shares of Senior Stock
are not paid in full, at such time and thereafter until all unpaid dividends
payable, whether or not declared, on the outstanding shares of Senior Stock
shall have been paid in full or declared and set apart for payment or
whenever the Corporation shall not have redeemed or converted shares of
Senior Stock at a time required by the designations of such Senior Stock, at
such time and thereafter until all redemption, conversion and obligations
that have come due shall have been satisfied or all necessary funds have been
set apart for payment, the Corporation shall not: (A) declare or pay
dividends, or make any other distributions, on any shares of Preferred Stock,
Parity Stock or Junior Stock or (B) declare or pay dividends, or make any
distributions, on any shares of stock ranking pari passu with such Senior
Stock, except dividends or distributions paid ratably on the Senior Stock and
stock ranking pari passu with such Senior Stock on which dividends are
payable or in arrears, in proportion to the total amounts to which the
holders of all shares of the Senior Stock and such stock ranking pari passu
with such Senior Stock are then entitled.
(b) Whenever quarterly dividends payable on shares of Preferred
Stock as provided in Section 2 are not paid in full, at such time and
thereafter until all unpaid dividends payable, whether or not declared, on
the outstanding shares of Preferred Stock shall have been paid in full or
declared and set apart for payment or whenever the Corporation shall not have
redeemed or converted shares of Preferred Stock at a time required by Section
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5 or 8, at such time and thereafter until all redemption conversion and
obligations provided in Section 5 or 8 that have come due shall have been
satisfied or all necessary funds have been set apart for payment, the
Corporation shall not: (A) declare or pay dividends, or make any other
distributions, on any shares of Junior Stock or (B) declare or pay dividends,
or make any other distributions, on any shares of Parity Stock, except
dividends or distributions paid ratably on the Preferred Stock and all Parity
Stock on which dividends are payable or in arrears, in proportion to the
total amounts to which the holders of all shares of the Preferred Stock and
such Parity Stock are then entitled.
(c) Whenever dividends payable on shares of Preferred Stock as
provided in Section 2 are not paid in full, at such time and thereafter until
all unpaid dividends payable, whether or not declared, on the outstanding
shares of Preferred Stock shall have been paid in full or declared and set
apart for payment, or whenever the Corporation shall not have redeemed or
converted shares of Preferred Stock at a time required by Section 5 or 8, at
such time and thereafter until all redemption conversion and obligations
provided in Section 5 or 8 that have come due shall have been satisfied or
all necessary funds have been set apart for payment, the Corporation shall
not redeem, purchase or otherwise acquire for consideration any shares of
Junior Stock or Parity Stock; provided, however, that (A) the Corporation may
accept shares of any Parity Stock or Junior Stock for conversion into Junior
Stock and (B) the Corporation may at any time redeem, purchase or otherwise
acquire shares of any Parity Stock pursuant to any mandatory redemption, put,
sinking fund or other similar obligation contained in such Parity Stock, pro
rata with the Preferred Stock in proportion to the total amount then required
to be applied by the Corporation to redeem, repurchase, convert, exchange or
otherwise acquire shares of Preferred Stock and shares of such Parity Stock.
(d) The Corporation shall not permit any Subsidiary of the
Corporation, or cause any other Person, to purchase or otherwise acquire for
consideration any shares of capital stock of the Corporation unless the
Corporation could, pursuant to Section 4(c), purchase such shares at such
time and in such manner.
Section 5. Redemption; Change of Control.
(a) Optional Redemption. Except as otherwise set forth in this
Section 5, the Corporation shall not have any right to redeem any shares of
Preferred Stock prior to the fourth anniversary of the Original Issue Date.
On and after the fourth anniversary of the Original Issue Date, the
Corporation shall have the right, at its sole option and election, to redeem
the shares of Preferred Stock, in whole but not in part, on not less than 30
days notice of the date of redemption (any such date an "Optional Redemption
Date") at a price per share (the "Optional Redemption Price") equal to (A)
the Liquidation Preference plus (B) all accrued and unpaid dividends thereon,
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whether or not declared or payable, to the applicable Optional Redemption
Date, in immediately available funds.
(b) Mandatory Redemption. To the extent permitted by law, the
Corporation shall redeem, on the eighth anniversary of the Original Issue
Date (or, if such day is not a Business Day, on the first Business Day
thereafter) (the "Mandatory Redemption Date"), all remaining shares of
Preferred Stock then outstanding, for an amount per share (the "Mandatory
Redemption Price") equal to (A) the Liquidation Preference plus (B) all
accrued but unpaid dividends thereon, whether or not declared or payable, to
the Mandatory Redemption Date, in immediately available funds. Prior to
authorizing or making such redemption, the Corporation, by resolution of the
Board of Directors shall, to the extent of funds legally available therefor,
declare a dividend on the Preferred Stock payable on the Mandatory Redemption
Date in an amount equal to any accrued and unpaid dividends on the Preferred
Stock as of such date and, if the Corporation does not have sufficient
legally available funds to declare and pay all dividends accrued at the time
of such redemption, any remaining accrued and unpaid dividends shall be added
to the Mandatory Redemption Price. After paying any accrued and unpaid
dividends pursuant to the foregoing sentence, if the funds of the Corporation
legally available for redemption of shares of the Preferred Stock then
required to be redeemed are insufficient to redeem the total number of such
shares then outstanding, those funds which are legally available shall be
used to redeem the maximum possible number of shares of the Preferred Stock,
which shares to be redeemed shall be allocated pro rata among the holders of
the Preferred Stock based on the number of shares of Preferred Stock held by
such holders. At any time and from time to time thereafter, when additional
funds of the Corporation are legally available to discharge its obligation to
redeem all of the outstanding shares of Preferred Stock required to be
redeemed pursuant to this Section (the "Mandatory Redemption Obligation"),
such funds shall be immediately used to discharge such Mandatory Redemption
Obligation until the balance of such shares have been redeemed. If and so
long as the Mandatory Redemption Obligation shall not be fully discharged,
dividends on any remaining outstanding shares of Preferred Stock shall
continue to accrue and be added to the dividend payable pursuant to the
second preceding sentence.
(c) Change of Control. If, on or prior to the fourth anniversary
of the Original Issue Date, a Change of Control occurs, a holder of Preferred
Stock may at its option require the Corporation to redeem all or a portion of
the holder's shares of Preferred Stock on the Control Redemption Date (as
hereafter defined) at a price per share (the "Control Redemption Price")
equal to (A) 101% of the Liquidation Preference plus (B) all accrued and
unpaid dividends thereon to the Control Redemption Date, whether or not
declared or payable, in immediately available funds. (The Control
Redemption Price, Optional Redemption Price and Mandatory Redemption Price
are sometimes referred to as the "Applicable Redemption Price." The Control
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Redemption Date, Optional Redemption Date, and Mandatory Redemption Date are
sometimes referred to as the "Applicable Redemption Date.")
(d) Notice.
(i) The Corporation will provide notice to holders of record
of the Preferred Stock (x) of any redemption pursuant to Section 5(a) or 5(b)
not less than 30 nor more than 60 days prior to the date fixed for such
redemption (a "Redemption Notice") and (y) of any Change of Control within 10
days of such Change of Control (a "Change of Control Notice"). Any
Redemption Notice provided pursuant to this Section 5(d) shall be provided by
first-class mail postage prepaid, to each holder of record of the Preferred
Stock, at such holder's address as it appears on the stock transfer books of
the Corporation and, in addition, any Notice provided pursuant to clause (x)
of this Section 5(d) shall be given by publication in a newspaper of general
circulation in the Borough of Manhattan, The City of New York (if such
publication shall be required by applicable law, rule, regulation or
securities exchange requirement).
(ii) Each Redemption Notice shall state, as appropriate, (x)
the Applicable Redemption Date; (y) that all the shares of Preferred Stock
will be redeemed; and (z) the Optional Redemption Price or Mandatory
Redemption Price.
(iii) Each Change of Control Notice shall state that: (w) a
Change of Control has occurred and the holder of the Preferred Stock has the
option of requiring the Corporation to redeem all or any portion of its
shares of Preferred Stock; (x) any shares of Preferred Stock not tendered for
redemption will remain outstanding and continue to accrue dividends; (y) the
Control Redemption Price; and (z) the date on which the Corporation must
redeem the shares (the "Control Redemption Date"), which shall be not later
than 45 days from the date the Change of Control Notice is mailed.
(iv) In addition, each Redemption Notice and Change of
Control Notice shall state, as appropriate, the place or places where
certificates for such shares are to be surrendered for redemption; (w) the
amount of full cumulative dividends per share of Preferred Stock to be
redeemed up to but excluding the Applicable Redemption Date, and that
dividends on shares of Preferred Stock to be redeemed will cease to accrue on
such Redemption Date unless the Corporation shall default in payment of the
Applicable Redemption Price; (x) the name and location of any bank or trust
company with which the Corporation will deposit redemption funds pursuant to
subsection (f) below; (y) the then-effective Conversion Price; and (z) that
the right of holders to convert shares of Preferred Stock to be redeemed will
terminate at the close of business on the Business Day next preceding the
Applicable Redemption Date (unless the Corporation shall default in the
payment of the Applicable Redemption Price).
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Any Notice that is mailed and published pursuant to clause (i) shall be
conclusively presumed to have been duly given, whether or not the holder of
shares of Preferred Stock receives such notice, and failure to give such
notice by mail, or any defect in such notice, to the holders of any shares
designated for redemption shall not affect the validity of the proceedings
for the redemption of any other shares of Preferred Stock.
(e) Mechanics of Redemption. Upon surrender of the certificate
for any shares redeemed pursuant to Section 5(a), (b) or (c) (duly endorsed
or accompanied by appropriate instruments of transfer if so required by the
Corporation), the holders of record of such shares shall be entitled to
receive the Applicable Redemption Price out of funds legally available
therefor. If fewer than all the shares represented by any such certificate
are redeemed, a new certificate representing the unredeemed shares shall be
issued without cost to the holder thereof.
(f) Redemption Funds. On the date of any redemption being made
pursuant to this Section, the Corporation shall, and at any time after
mailing the Redemption Notice or Change of Control Notice and before the
Applicable Redemption Date the Corporation may, deposit for the benefit of
the holders of shares of Preferred Stock to be redeemed the funds necessary
for such redemption with a bank or trust company having a capital and surplus
of at least $500 million, with instructions to such bank or trust company to
pay the full redemption amounts as provided herein to the holders of shares
of Preferred Stock upon surrender of certificates for such shares; provided,
however, that the making of such deposit shall not release the Corporation
from any of its obligations hereunder. Any moneys so deposited by the
Corporation and unclaimed at the end of twelve months from the Applicable
Redemption Date shall revert to the general funds of the Corporation and,
upon demand, such bank or trust company shall pay over to the Corporation
such unclaimed amounts and thereupon such bank or trust company shall be
relieved of all responsibility in respect thereof and any holder of shares of
Preferred Stock so redeemed shall look only to the Corporation for the
payment of the full redemption amounts, as provided herein.
(g) Rights After Redemption. Notice of redemption having been
given as provided in Section 5(d), upon the deposit pursuant to subsection
(f) of the full redemption amounts as provided herein in respect of all
shares of Preferred Stock then surrendered in accordance with subsection (e),
from and after the Applicable Redemption Date: (i) the shares represented
thereby shall no longer be deemed outstanding, (ii) the right to receive
dividends thereon shall cease to accrue, and (iii) all rights of the holders
of such shares of Preferred Stock shall cease and terminate, excepting only
the right to receive the full redemption amounts as provided herein without
interest thereon and the right to convert such shares of Preferred Stock at
any time on or prior to the Business Day next preceding the Applicable
Redemption Date. If the funds deposited are not sufficient for redemption of
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the shares of the Preferred Stock that were to be redeemed, then (a) in the
case of redemption pursuant to Section 5(a), no certificates evidencing any
shares of Preferred Stock shall be deemed surrendered and such shares shall
remain outstanding and the rights of holders of shares of Preferred Stock
shall continue to be those of holders of shares of the Preferred Stock or (b)
in the case of redemption pursuant to Sections 5(b) or 5(c), certificates
evidencing shares of Preferred Stock for which the Applicable Redemption
Price has not been deposited in full shall not be deemed surrendered and such
shares shall remain outstanding and the rights of holders of shares of
Preferred Stock shall continue to be those of holders of shares of the
Preferred Stock.
Section 6. Reacquired Shares.
Any shares of Preferred Stock converted, exchanged, redeemed,
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and canceled promptly after the acquisition thereof. All
such shares of Preferred Stock shall upon their cancellation become
authorized but unissued shares of preferred stock, par value $0.01 per share,
of the Corporation and, upon the filing of an appropriate Certificate of
Designation with the Secretary of State of the State of Delaware, may be
reissued as part of another series of preferred stock, par value $0.01 per
share, of the Corporation subject to the conditions or restrictions on
issuance set forth therein, but in any event may not be reissued as shares of
Preferred Stock or other Parity Stock unless all of the shares of Preferred
Stock shall have already been redeemed or converted or such issuance is
approved in accordance with the terms contained herein.
Section 7. Liquidation, Dissolution or Winding Up.
(a) If the Corporation shall commence a voluntary case under the
United States bankruptcy laws or any applicable bankruptcy, insolvency or
similar law of any other country, or consent to the entry of an order for
relief in an involuntary case under any such law or to the appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or other
similar official) of the Corporation or of any substantial part of its
property, or make an assignment for the benefit of its creditors, or admit in
writing its inability to pay its debts generally as they become due, or if a
decree or order for relief in respect of the Corporation shall be entered by
a court having jurisdiction in the premises in an involuntary case under the
United States bankruptcy laws or any applicable bankruptcy, insolvency or
similar law of any other country, or appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or other similar official) of the
Corporation or of any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and on account of any such event
the Corporation shall liquidate, dissolve or wind up, or if the Corporation
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shall otherwise liquidate, dissolve or wind up, no distribution shall be
made:
(i) to the holders of Preferred Stock, Parity Stock or Junior
Stock unless, prior thereto, the holders of Senior Stock shall have received
the total amounts to which such holders are entitled upon such liquidation,
dissolution or winding up,
(ii) to the holders of shares of Junior Stock unless, prior
thereto, the holders of shares of Preferred Stock, subject to Section 8,
shall have received the Liquidation Preference, plus all accrued and unpaid
dividends, whether or not declared or currently payable, to the date of
distribution, with respect to each share, or
(iii) to the holders of shares of Parity Stock, except
distributions made ratably on the Preferred Stock and all other Parity Stock
in proportion to the total amounts to which the holders of all shares of the
Preferred Stock and other Parity Stock are entitled upon such liquidation,
dissolution or winding up.
(b) Neither the consolidation or merger of the Corporation with or
into any other Person nor the sale or other distribution to another Person of
all or substantially all the assets, property or business of the Corporation
shall be deemed to be a liquidation, dissolution or winding up of the
Corporation for purposes of this Section 7.
Section 8. Voluntary Conversion.
(a) Any holder of Preferred Stock shall have the right, at its
option and, provided that all waiting periods under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended, have expired or terminated,
at any time and from time to time, to convert, subject to the terms and
provisions of this Section 8, any or all of such holder's shares of Preferred
Stock into such number of fully paid and non-assessable shares of Class A
Common Stock as is equal, subject to Section 8(g), to the product of the
number of shares of Preferred Stock being so converted multiplied by the
quotient of (i) the Liquidation Preference divided by (ii) the Conversion
Price (as defined below) then in effect, except that with respect to any
shares which shall be called for redemption, such right shall terminate on
the Business Day next preceding the Applicable Redemption Date, unless in any
such case the Corporation shall default in performance or payment due upon
redemption thereof. The Conversion Price shall be $23.00, subject to
adjustment as set forth in Section 8(d). Such conversion right shall be
exercised by the surrender of the shares to be converted to the Corporation
at any time during usual business hours at its principal place of business to
be maintained by it, accompanied by written notice that the holder elects to
convert such shares of Preferred Stock and specifying the name or names (with
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address) in which a certificate or certificates for shares of Class A Common
Stock are to be issued and (if so required by the Corporation) by a written
instrument or instruments of transfer in form reasonably satisfactory to the
Corporation duly executed by the holder or its duly authorized legal
representative and transfer tax stamps or funds therefor, if required
pursuant to Section 8(k). All shares of Preferred Stock surrendered for
conversion shall be delivered to the Corporation for cancellation and
canceled by it and no shares of Preferred Stock shall be issued in lieu
thereof.
(b) As promptly as practicable after the surrender, as herein
provided, of any shares of Preferred Stock for conversion pursuant to Section
8(a), the Corporation shall deliver to, or upon the written order of, the
holder of such shares so surrendered a certificate or certificates
representing the number of fully paid and non-assessable shares of Class A
Common Stock into which such shares of Preferred Stock may be or have been
converted in accordance with the provisions of this Section 8. Subject to
the following provisions of this paragraph and of Section 8(d), such
conversion shall be deemed to have been made immediately prior to the close
of business on the date that such shares of Preferred Stock shall have been
surrendered in satisfactory form for conversion, and the Person or Persons
entitled to receive the Class A Common Stock deliverable upon conversion of
such shares of Preferred Stock shall be treated for all purposes as having
become the record holder or holders of such Class A Common Stock at such
time, and such conversion shall be at the Conversion Price in effect at such
time; provided, however, that no surrender shall be effective to constitute
the Person or Persons entitled to receive the Class A Common Stock
deliverable upon such conversion as the record holder or holders of such
Class A Common Stock while the share transfer books of the Corporation shall
be closed (but not for any period in excess of five days), but such surrender
shall be effective to constitute the Person or Persons entitled to receive
such Class A Common Stock as the record holder or holders thereof for all
purposes immediately prior to the close of business on the next succeeding
day on which such share transfer books are open, and such conversion shall be
deemed to have been made at, and shall be made at the Conversion Price in
effect at the close of business on the date that such shares of Preferred
Stock shall have been surrendered in satisfactory form for conversion.
(c) To the extent permitted by law, when shares of Preferred Stock
are converted, all dividends accrued and unpaid (whether or not declared or
currently payable) on the Preferred Stock so converted to the date of
conversion shall be immediately due and payable and must accompany the shares
of Class A Common Stock issued upon such conversion.
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(d) The Conversion Price shall be subject to adjustment as
follows:
(i) In case the Corporation shall at any time or from time to
time after the Original Issue Date (A) pay a dividend or make a distribution
(other than a dividend or distribution paid or made to holders of shares of
Preferred Stock in the manner provided in Section 2(c)) on the outstanding
shares of Class A Common Stock in capital stock (which, for purposes of this
Section 8(d) shall include, without limitation, any options, warrants or
other rights to acquire capital stock) of the Corporation, (B) subdivide the
outstanding shares of Class A Common Stock into a larger number of shares,
(C) combine the outstanding shares of Class A Common Stock into a smaller
number of shares, (D) issue any shares of its capital stock in a
reclassification of the Class A Common Stock or (E) pay a dividend or make a
distribution (other than a dividend or distribution paid or made to holders
of shares of Preferred Stock in the manner provided in Section 2(c)) on the
outstanding shares of Class A Common Stock in securities of the Corporation
pursuant to a shareholder rights plan, "poison pill" or similar arrangement,
then, and in each such case, the Conversion Price in effect immediately prior
to such event shall be adjusted (and any other appropriate actions shall be
taken by the Corporation) so that the holder of any share of Preferred Stock
thereafter surrendered for conversion shall be entitled to receive the number
of shares of Class A Common Stock or other securities of the Corporation that
such holder would have owned or would have been entitled to receive upon or
by reason of any of the events described above, had such share of Preferred
Stock been converted immediately prior to the occurrence of such event. An
adjustment made pursuant to this Section 8(d)(i) shall become effective
retroactively (A) in the case of any such dividend or distribution, to a date
immediately following the close of business on the record date for the
determination of holders of Class A Common Stock entitled to receive such
dividend or distribution or (B) in the case of any such subdivision,
combination or reclassification, to the close of business on the day upon
which such corporate action becomes effective.
(ii) In case the Corporation shall at any time or from time to
time after the Original Issue Date issue shares of Common Stock (or
securities convertible into or exchangeable for Class A Common Stock, or any
options, warrants or other rights to acquire shares of Class A Common Stock)
for a consideration per share less than either the Conversion Price or the
Current Market Price per share of Class A Common Stock (in each case, then in
effect at the record date or issuance date, as the case may be (the "Date"))
(treating the price per share of any security convertible or exchangeable or
exercisable into Class A Common Stock as equal to (A) the sum of the price
for such security convertible, exchangeable or exercisable into Class A
Common Stock plus any additional consideration payable (without regard to any
anti-dilution adjustments) upon the conversion, exchange or exercise of such
security into Class A Common Stock divided by (B) the number of shares of
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Class A Common Stock initially underlying such convertible, exchangeable or
exercisable security), then, and in each such case, the Conversion Price then
in effect shall be adjusted by dividing the Conversion Price in effect on the
day immediately prior to the Date by a fraction (x) the numerator of which
shall be the sum of the number of shares of Class A Common Stock outstanding
on the Date plus the number of additional shares of Class A Common Stock
issued or to be issued (or the maximum number into which such convertible or
exchangeable securities initially may convert or exchange or for which such
options, warrants or other rights initially may be exercised) and (y) the
denominator of which shall be the sum of the number of shares of Class A
Common Stock outstanding on the Date plus the number of shares of Class A
Common Stock which the aggregate consideration for the total number of such
additional shares of Class A Common Stock so issued or be issued upon the
conversion, exchange or exercise of such convertible or exchangeable
securities or options, warrants or other rights (plus the aggregate amount of
any additional consideration initially payable upon such conversion, exchange
or exercise of such security) would purchase at the greater of the Conversion
Price or Current Market Price per share of Class A Common Stock on the Date,
as the case may be. Notwithstanding the foregoing, the Conversion Price
shall not be adjusted where, pursuant to an arms' length transaction with a
non-Affiliate, the Corporation issues shares of Class A Common Stock (or
securities convertible into or exchangeable for Class A Common Stock or any
options, warrants or other rights to acquire Class A Common Stock) for a
consideration per share less than either the Conversion Price then in effect
or the Current Market Price per share of Class A Common Stock if issued as
all or a portion of the purchase price for the stock or assets of another
corporation.
Such adjustment shall be made whenever such shares, securities, options,
warrants or other rights are issued, and shall become effective retroactively
to a date immediately following the close of business (1) in the case of
issuance to stockholders of the Corporation, as such, on the record date for
the determination of stockholders entitled to receive such shares,
securities, options, warrants or other rights and (2) in all other cases, on
the date ("issuance date") of such issuance; provided that:
(A) the determination as to whether an adjustment is
required to be made pursuant to this Section 8(d)(ii) shall be made upon the
issuance of such shares or such convertible or exchangeable securities,
options, warrants or other rights;
(B) if any convertible or exchangeable securities,
options, warrants or other rights (or any portions thereof) which shall have
given rise to an adjustment pursuant to Section 8(d)(i) or this Section
8(d)(ii) shall have expired or terminated without the exercise thereof and/or
if by reason of the terms of such convertible or exchangeable securities,
options, warrants or other rights there shall have been an increase or
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increases, with the passage of time or otherwise, in the price payable upon
the exercise or conversion thereof, then the Conversion Price hereunder shall
be readjusted (but to no greater extent than originally adjusted) on the
basis of (x) eliminating from the computation any additional shares of Class
A Common Stock corresponding to such convertible or exchangeable securities,
options, warrants or other rights as shall have expired or terminated, (y)
treating the additional shares of Class A Common Stock, if any, actually
issued or issuable pursuant to the previous exercise of such convertible or
exchangeable securities, options, warrants or other rights as having been
issued for the consideration actually received and receivable therefor and
(z) treating any of such convertible or exchangeable securities, options,
warrants or other rights which remain outstanding as being subject to
exercise or conversion on the basis of such exercise or conversion price as
shall be in effect at this time; and
(C) no adjustment in the Conversion Price shall be made
pursuant to this Section 8(d)(ii) as a result of any issuance of securities
by the Corporation in respect of which an adjustment to the Conversion Price
is made pursuant to Section 8(d)(i).
(iii) In case the Corporation shall at any time or from
time to time after the Original Issue Date distribute to all holders of
shares of its Class A Common Stock (including any such distribution made in
connection with a consolidation or merger in which the Corporation is the
resulting or surviving corporation and the Class A Common Stock is not
changed or exchanged) cash, evidences of indebtedness of the Corporation or
another issuer, securities of the Corporation or another issuer or other
assets (excluding (A) dividends or distributions paid or made to holders of
shares of Preferred Stock in the manner provided in Section 2(c), (B) Regular
Dividends, and (C) dividends payable in shares of Class A Common Stock (or
any options, warrants or other rights to acquire Class A Common Stock) for
which adjustment is made under Section 8(d)(i)) or rights or warrants to
subscribe for or purchase securities of the Corporation (excluding those
referred to in Section 8(d)(ii) or those in respect of which an adjustment in
the Conversion Price is made pursuant to Section 8(d)(i) or (ii)), then, and
in each such case, the Conversion Price then in effect shall be adjusted by
dividing the Conversion Price in effect immediately prior to the date of such
distribution by a fraction (x) the numerator of which shall be the Current
Market Price of the Class A Common Stock on the record date referred to below
and (y) the denominator of which shall be such Current Market Price of the
Class A Common Stock less the then Fair Market Value (as determined by the
Board of Directors of the Corporation) of the portion of the cash, evidences
of indebtedness, securities or other assets so distributed or of such
subscription rights or warrants applicable to one share of Class A Common
Stock (but such denominator not to be less than one). Such adjustment shall
be made whenever any such distribution is made and shall become effective
retroactively to a date immediately following the close of business on the
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record date for the determination of stockholders entitled to receive such
distribution.
(iv) In case the Corporation, at any time or from time to time
after the Original Issue Date, shall take any action affecting its Class A
Common Stock similar to or having an effect similar to any of the actions
described in any of Section 8(d)(i) through Section 8(d)(iii), inclusive, or
Section 8(h) (but not including any action described in any such Section) and
the Board of Directors of the Corporation in good faith determines that it
would be equitable in the circumstances to adjust the Conversion Price as a
result of such action, then, and in each such case, the Conversion Price
shall be adjusted in such manner and at such time as the Board of Directors
of the Corporation in good faith determines would be equitable in the
circumstances (such determination to be evidenced in a resolution, a
certified copy of which shall be mailed to the holders of the Preferred
Stock).
(v) Notwithstanding anything herein to the contrary, no
adjustment under this Section 8(d) need be made to the Conversion Price
unless such adjustment would require an increase or decrease of at least 1%
of the Conversion Price then in effect. Any lesser adjustment shall be
carried forward and shall be made at the time of and together with the next
subsequent adjustment, which, together with any adjustment or adjustments so
carried forward, shall amount to an increase or decrease of at least 1% of
such Conversion Price. Any adjustment to the Conversion Price carried
forward and not theretofore made shall be made immediately prior to the
conversion of any shares of Preferred Stock pursuant hereto.
(vi) Notwithstanding anything herein to the contrary, no
adjustment under this Section 8(d) shall be made upon the grant of options
pursuant to the Corporation's 1996 Stock Option Plan and Stock Option Plan
for Outside Directors, in each case as in effect on December 12, 2000, plus
additional options not exceeding 480,000 options to employees, consultants or
directors of the Corporation pursuant to benefit plans approved by the Board
of Directors of the Corporation or upon the issuance of shares of Class A
Common Stock upon exercise of such options if the exercise price thereof was
not less than the Market Price of the Common Stock on the date such options
were granted.
(e) If the Corporation shall take a record of the holders of its
Class A Common Stock for the purpose of entitling them to receive a dividend
or other distribution, and shall thereafter and before the distribution to
stockholders thereof legally abandon its plan to pay or deliver such dividend
or distribution, then thereafter no adjustment in the Conversion Price then
in effect shall be required by reason of the taking of such record.
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(f) Promptly following any increase or decrease in the Conversion
Price, the Corporation shall deliver to each registered holder of Preferred
Stock a certificate, signed by the President or a Vice President and by the
Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary of the Corporation, setting forth in reasonable detail the event
requiring the adjustment and the method by which such adjustment was
calculated and specifying the increased or decreased Conversion Price then in
effect following such adjustment.
(g) No fractional shares or scrip representing fractional shares
shall be issued upon the conversion of any shares of Preferred Stock. If more
than one share of Preferred Stock shall be surrendered for conversion at one
time by the same holder, the number of full shares of Class A Common Stock
issuable upon conversion thereof shall be computed on the basis of the
aggregate Liquidation Preference of the shares of Preferred Stock so
surrendered. If the conversion of any share or shares of Preferred Stock
results in a fraction, an amount equal to such fraction multiplied by the
Current Market Price of the Class A Common Stock on the Business Day
preceding the day of conversion shall be paid to such holder in cash by the
Corporation.
(h) In case of any capital reorganization or reclassification or
other change of outstanding shares of Class A Common Stock (other than a
change in par value, or from par value to no par value, or from no par value
to par value), or in case of any consolidation or merger of the Corporation
with or into another Person (other than a consolidation or merger in which
the Corporation is the resulting or surviving Person and which does not
result in any reclassification or change of outstanding Class A Common
Stock), or in case of any sale or other disposition to another Person of all
or substantially all of the assets of the Corporation (any of the foregoing,
a "Transaction"), the Corporation, or such successor or purchasing Person, as
the case may be, shall execute and deliver to each holder of Preferred Stock
at least 5 Business Days prior to effecting any of the foregoing Transactions
a certificate that the holder of each share of Preferred Stock then
outstanding shall have the right thereafter to convert such share of
Preferred Stock into the kind and amount of shares of stock or other
securities (of the Corporation or another issuer) or property or cash
receivable upon such Transaction by a holder of the number of shares of Class
A Common Stock into which such share of Preferred Stock could have been
converted immediately prior to such Transaction. Such certificate shall
provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 8. If, in the
case of any such Transaction, the stock, other securities, cash or property
receivable thereupon by a holder of Class A Common Stock includes shares of
stock or other securities of a Person other than the successor or purchasing
Person and other than the Corporation, which controls or is controlled by the
successor or purchasing Person or which, in connection with such Transaction,
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issues stock, securities, other property or cash to holders of Class A Common
Stock, then such certificate also shall be executed by such Person, and such
Person shall, in such certificate, specifically acknowledge the obligations
of such successor or purchasing Person and acknowledge its obligations to
issue such stock, securities, other property or cash to the holders of
Preferred Stock upon conversion of the shares of Preferred Stock as provided
above. The provisions of this Section 8(h) and any equivalent thereof in any
such certificate similarly shall apply to successive Transactions.
(i) In case at any time or from time to time after the
Original Issue Date:
(A) the Corporation shall declare a dividend (other than
a Regular Dividend) (or any other distribution) on its Class A Common Stock;
(B) the Corporation shall authorize the granting to the
holders of its Class A Common Stock of rights or warrants to subscribe for or
purchase any shares of stock of any class or of any other rights or warrants,
other than pursuant to the grant of options for which, as specified in
Section 8(d)(vi), no adjustment is to be made;
(C) there shall be any reclassification of the Class A
Common Stock, or any consolidation or merger to which the Corporation is a
party and for which approval of any shareholders of the Corporation is
required, or any sale or other disposition of all or substantially all of the
assets of the Corporation; or
(D) of the voluntary or involuntary dissolution,
liquidation or winding up of the Corporation;
then the Corporation shall mail to each holder of shares of Preferred Stock
at such holder's address as it appears on the transfer books of the
Corporation, as promptly as possible but in any event at least 5 days prior
to the applicable date hereinafter specified, a notice stating (x) the date
on which a record is to be taken for the purpose of such dividend,
distribution or rights or warrants or, if a record is not to be taken, the
date as of which the holders of Class A Common Stock of record to be entitled
to such dividend, distribution or rights are to be determined, or (y) the
date on which such reclassification, consolidation, merger, sale, conveyance,
dissolution, liquidation or winding up is expected to become effective. Such
notice also shall specify the date as of which it is expected that holders of
Class A Common Stock of record shall be entitled to exchange their Class A
Common Stock for shares of stock or other securities or property or cash
deliverable upon such reclassification, consolidation, merger, sale,
conveyance, dissolution, liquidation or winding up.
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(j) The Corporation shall at all times reserve and keep available
for issuance upon the conversion of the Preferred Stock pursuant to Section
8(a) such number of its authorized but unissued shares of Class A Common
Stock as will from time to time be sufficient to permit the conversion of all
outstanding shares of Preferred Stock, and shall take all action required to
increase the authorized number of shares of Class A Common Stock if at any
time there shall be insufficient authorized but unissued shares of Class A
Common Stock to permit such reservation or to permit the conversion of all
outstanding shares of Preferred Stock.
(k) The issuance or delivery of certificates for Class A Common
Stock upon the conversion of shares of Preferred Stock pursuant to Section
8(a) shall be made without charge to the converting holder of shares of
Preferred Stock for such certificates or for any tax in respect of the
issuance or delivery of such certificates or the securities represented
thereby, and such certificates shall be issued or delivered in the respective
names of, or (subject to compliance with the applicable provisions of federal
and state securities laws) in such names as may be directed by, the holders
of the shares of Preferred Stock converted; provided, however, that the
Corporation shall not be required to pay any tax which may be payable in
respect of any transfer involved in the issuance and delivery of any such
certificate in a name other than that of the holder of the shares of
Preferred Stock converted, and the Corporation shall not be required to issue
or deliver such certificate unless or until the Person or Persons requesting
the issuance or delivery thereof shall have paid to the Corporation the
amount of such tax or shall have established to the reasonable satisfaction
of the Corporation that such tax has been paid.
(l) The Corporation may, one time only, at its option, reduce the
Conversion Price 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. When
the Conversion Price is so reduced, the Corporation shall mail to holders of
record of the Preferred Stock a notice of the reduction of 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.
Notwithstanding the foregoing, any such voluntary reduction of the Conversion
Price shall not be deemed to change or adjust the Conversion Price for
purposes of Section 8(d) above.
Section 9. Certain Remedies.
Any registered holder of Preferred Stock shall be entitled to an
injunction or injunctions to prevent breaches of the provisions of this
Certificate of Designation and to enforce specifically the terms and
provisions of this Certificate of Designation in any court of the United
States or any state thereof having jurisdiction, this being in addition to
any other remedy to which such holder may be entitled at law or in equity.
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Section 10. Definitions.
For the purposes of this Certificate of Designation of Preferred
Stock, the following terms shall have the meanings indicated:
"Affiliate" shall have the meaning ascribed to such term in Rule
12b-2 of the General Rules and Regulations under the Exchange Act; provided
that "Affiliate" shall not include the Purchaser or any Affiliate of the
Purchaser.
"Business Day" shall mean any day other than a Saturday, Sunday or
other day on which commercial banks in The City of New York, New York are
authorized or required by law or executive order to close.
A "Change of Control" of the Corporation shall mean such times as:
(i) Any Person or "group" (within the meaning of Section
13(d)(3) of the Exchange Act), other than the Fuller Immediate Family, is or
becomes the beneficial owner, directly or indirectly, of outstanding shares
of stock of the Corporation entitling such Person or Persons to exercise 50%
or more of the total votes (including the Preferred Stock) entitled to be
cast at a regular or special meeting, or by action by written consent, of
shareholders of the Corporation (the term "beneficial owner" shall be
determined in accordance with Rule 13d-3, promulgated by the Commission under
the Exchange Act);
(ii) A majority of the Board of Directors of the Corporation
shall consist of Persons other than Continuing Directors. The term
"Continuing Director" shall mean any member of the Board of Directors on the
Initial Closing Date (as defined in the Stock Purchase Agreement) and any
other member of the Board of Directors who shall be recommended or elected to
succeed or become a Continuing Director by a majority of Continuing Directors
who are then members of the Board of Directors.
(iii) The shareholders of the Corporation shall have approved
a recapitalization, reorganization, merger, consolidation or similar
transaction, in each case with respect to which all or substantially all the
Persons who were the respective beneficial owners, directly or indirectly, of
the outstanding shares of capital stock (excluding the holders of Preferred
Stock) of the Corporation immediately prior to such recapitalization,
reorganization, merger, consolidation or similar transaction, will own less
than 50% of either the combined voting power or the total number of the then
outstanding shares of capital stock of the Corporation resulting from such
recapitalization, reorganization, merger, consolidation or similar
transaction;
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(iv) The shareholders of the Corporation shall have approved
of the sale or other disposition of all or substantially all the assets of
the Corporation in one transaction or in a series of related transactions;
(v) Any transaction occurs, the result of which is that the
Class A Common Stock is not required to be registered under Section 12 of the
Exchange Act and that the holders of Class A Common Stock do not receive
common stock of the Person surviving such transaction which is required to be
registered under Section 12 of the Exchange Act; or
(vi) Immediately after any merger, consolidation,
recapitalization or similar transaction, any Person or "group" (within the
meaning of Section 13(d)(3) of the Exchange Act) shall be the beneficial
owners, directly or indirectly, of outstanding shares of capital stock of the
Corporation (or any Person surviving such transaction) entitling them
collectively to exercise 50% or more of the total voting power of shares of
capital stock of the Corporation (or the surviving Person in such
transaction) and in connection with or as a result of such transaction, the
Corporation (or such surviving Person) shall have incurred or issued
additional indebtedness such that the total indebtedness so incurred or
issued equals at least 50% of the consideration payable in such transaction;
provided that any such recapitalization shall not be considered a Change of
Control if the holders of the Preferred Stock shall have been given the right
to participate on at least a pari passu basis.
"Class A Common Stock" shall mean the Class A Common Stock of the
Corporation, par value $.01 per share, and having one vote per share.
"Class B Common Stock" shall mean the Class B Common Stock of the
Corporation, par value $.01 per share, and having ten votes per share.
"Common Stock" shall mean and include the Class A Common Stock and
the Class B Common Stock and each other class of capital stock of the
Corporation that does not have a preference over any other class of capital
stock of the Corporation as to dividends or upon liquidation, dissolution or
winding up of the Corporation and, in each case, shall include any other
class of capital stock of the Corporation into which such stock is
reclassified or reconstituted.
"Current Market Price" per share shall mean, on any date specified
herein for the determination thereof, (a) the average daily Market Price of
the Class A Common Stock for those days during the period of 5 days, ending
on such date, which are Trading Days, and (b) if the Class A Common Stock is
not then listed or admitted to trading on any national securities exchange or
quoted in the over-the-counter market, the Market Price on such date.
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"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Securities and Exchange
Commission thereunder.
"Fair Market Value" shall mean (x) if available, the Current Market
Price (determined without reference to the last sentence of the definition of
Market Price) or (y) if there shall be no Current Market Price available, the
amount which a willing buyer, under no compulsion to buy, would pay a willing
seller, under no compulsion to sell, in an arm's-length transaction (assuming
(i) that the Common Stock is valued "as if fully distributed" and (ii) no
consideration is given for minority investment discounts, or discounts
related to illiquidity or restrictions on transferability).
"Fuller Immediate Family" shall mean Mortimer B. Fuller, III, his
interest in his father's estate and any of his children or grandchildren and
any trust or other Person controlled by, and a majority of the beneficial
ownership interest of which is owned by, any of such individuals, singly or
jointly.
"Junior Stock" shall mean any capital stock of the corporation
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Preferred Stock including, without limitation, the Common
Stock.
"Liquidation Preference" with respect to a share of Preferred Stock
shall mean $1,000.00.
"Market Price" shall mean, per share of Class A Common Stock on any
date specified herein: (a) the closing price per share of the Common Stock
on such date published in The Wall Street Journal or, if no such closing
price on such date is published in The Wall Street Journal, the average of
the closing bid and asked prices on such date, as officially reported on the
principal national securities exchange on which the Class A Common Stock is
then listed or admitted to trading; (b) if the Class A Common Stock is not
then listed or admitted to trading on any national securities exchange but is
designated as a national market system security, the last trading price of
the Class A Common Stock on such date; or (c) if there shall have been no
trading on such date or if the Class A Common Stock is not so designated, the
average of the reported closing bid and asked prices of the Class A Common
Stock on such date as shown by NASDAQ and reported by any member firm of the
NYSE, selected by the Corporation. If neither (a), (b) or (c) is applicable,
Market Price shall mean the Fair Market Value per share determined in good
faith by the Board of Directors of the Corporation which shall be deemed to
be Fair Market Value unless holders of at least a majority of the outstanding
shares of Preferred Stock request that the Corporation obtain an opinion of a
nationally recognized investment banking firm chosen by such holders (at the
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Corporation's expense), in which event Fair Market Value shall be as
determined by such investment banking firm.
"NASDAQ" shall mean the National Market System of the NASDAQ Stock
Market.
"NYSE" shall mean the New York Stock Exchange, Inc.
"Original Issue Date" shall mean December 12, 2000.
"Parity Stock" shall mean any capital stock of the corporation,
including the Preferred Stock, ranking on a par (either as to dividends or
upon liquidation, dissolution or winding up) with the Preferred Stock.
"Person" shall mean any individual, firm, corporation, partnership,
trust, incorporated or unincorporated association, joint venture, joint stock
company, government (or an agency or political subdivision thereof) or other
entity of any kind, and shall include any successor (by merger) of such
entity.
"Regular Dividend" shall mean a cash dividend on the Common Stock
declared by the Board of Directors of the Corporation with respect to the
most recently completed quarter of the fiscal year of the Corporation (the
"Quarter"), that satisfies either of the following conditions: (i) the
product of four times the per share amount of such Common Stock cash dividend
declared with respect to such Quarter is less than or equal to 110% of the
aggregate per share amounts of the Common Stock cash dividends declared and
paid with respect to the immediately preceding four fiscal quarters or (ii)
the aggregate per share amounts of Common Stock cash dividends declared with
respect to such Quarter and the immediately preceding three fiscal quarters
is less than or equal to 10% of the consolidated net income of the
Corporation and its Subsidiaries per share of Common Stock (as determined in
accordance with generally accepted accounting principles) for the 12-month
period ending on the last day of such Quarter. In the case of a cash
dividend on the Common Stock declared by the Board of Directors of the
Corporation with respect to semi-annual or annual period during which no
quarterly cash dividends were declared, the preceding formula will be
adjusted and applied appropriately to determine whether such cash dividend is
a Regular Dividend.
"Senior Stock" shall mean any capital stock of the Corporation
ranking senior (either as to dividends or upon liquidation, dissolution or
winding up) to the Preferred Stock.
"Stock Purchase Agreement" shall mean the Stock Purchase Agreement,
dated October 19, 2000, by and between the Corporation and The 1818 Fund III,
L.P., as the same may be amended from time to time.
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"Subsidiary" shall mean, with respect to any person, a corporation
or other entity of which 50% or more of the voting power of the voting equity
securities or equity interest in owned, directly or indirectly, by such
persons.
"Trading Days" shall mean a day on which the national securities
exchanges are open for trading.
Section 11. Modification or Amendment.
Except as specifically set forth herein, modifications or
amendments to this Certificate of Designation may be made by the Corporation
with the consent of the holders of at least 50% of the outstanding shares of
Preferred Stock.
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IN WITNESS WHEREOF, Genesee & Wyoming, Inc. has caused this Certificate
to be duly executed in its corporate name on this 11th day of December, 2000.
GENESEE & WYOMING INC.
By: /s/ John C. Hellmann
--------------------------------
Name: John C. Hellmann
Title: Chief Financial Officer
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