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EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF NEXTEL INTERNATIONAL, INC.
1. The name of the Corporation is:
Nextel International, Inc.
2. The address of its registered office in the State of Delaware is
Corporation Service Company, 2711 Centerville Road, Suite 400, in the City of
Wilmington, County of New Castle. The name of its registered agent at such
address is Corporation Service Company.
3. The nature of the business or purposes to be conducted or
promoted is to engage in any lawful act or activity for which corporations may
be organized under the General Corporation Law of Delaware.
4. A. Authorized Shares. The total authorized number of shares
of all classes of capital stock which the Corporation has authority to issue is
2,160,037,500 shares divided into five classes as follows:
1,500,000,000 shares of Class A Common Stock, par value
$0.001 per share;
650,000,000 shares of Class B Common Stock, par value
$0.001 per share;
12,500 shares of Series A Exchangeable Redeemable
Preferred Stock, par value $10.00 per share (the "Series A
Preferred");
25,000 shares of Series B Redeemable Preferred Stock,
par value $10.00 per share (the "Series B Preferred"); and
10,000,000 shares of preferred stock, par value $0.001
per share (the "Undesignated Preferred Stock"; and, together
with the Series A Preferred and the Series B Preferred, the
"Preferred Stock").
B. Common Stock.
1. Voting Rights.
1.1 Each share of Class A Common Stock shall be entitled to
one vote per share in person or by proxy on all matters submitted to a
vote of the stockholders of the Corporation on which the holders of the
Class A Common Stock are entitled to vote.
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1.2 Each share of Class B Common Stock shall be entitled to
ten votes per share in person or by proxy on all matters submitted to a
vote of the stockholders of the Corporation on which the holders of the
Class B Common Stock are entitled to vote.
1.3 Except as otherwise required in this Certificate of
Incorporation, the Bylaws or by applicable law, the holders of shares of
Common Stock shall vote together as one class on all matters submitted
to a vote of stockholders of the Corporation generally (or if any
holders of shares of Preferred Stock are entitled to vote together with
the holders of Common Stock, as a single class with such holders of
shares of Preferred Stock).
2. Dividends and Distributions.
2.1 Subject to the preferences applicable to the Preferred
Stock outstanding at any time, if any, the holders of shares of Common
Stock shall be entitled to receive such dividends and other
distributions in cash, property or shares of stock of the Corporation as
may be declared thereon by the Board of Directors from time to time out
of assets or funds of the Corporation legally available therefor;
provided, that, subject to the provisions of this Section, the
Corporation shall not pay dividends or make distributions to any holders
of any class of Common Stock unless simultaneously with such dividend or
distribution, as the case may be, the Corporation makes the same
dividend or distribution with respect to each share of Common Stock then
issued and outstanding, regardless of class.
2.2 In the case of dividends or other distributions payable
in Class A Common Stock or Class B Common Stock, including distributions
pursuant to stock splits or divisions of Class A Common Stock or Class B
Common Stock, only shares of Class A Common Stock shall be distributed
with respect to Class A Common Stock and only shares of Class B Common
Stock shall be distributed with respect to Class B Common Stock. In the
case of any such dividend or distribution payable in shares of Class A
Common Stock or Class B Common Stock, the number of shares of each class
of Common Stock payable per share of each such class of Common Stock
shall be equal in number; provided, that the restriction in this
sentence shall not apply at any time when shares of only one Class of
Common Stock of the Corporation are issued and outstanding.
2.3 In the event the Corporation shall be liquidated (either
partial or complete), dissolved or wound up, whether voluntarily or
involuntarily, the holders of the Class A Common Stock and the Class B
Common Stock shall be entitled to share ratably, as a single class, in
the remaining net assets of the Corporation; that is, an equal amount of
net assets for each share of Class A Common Stock and Class B Common
Stock.
3. Conversion of Class B Common Stock.
3.1 Optional Conversion by the Holder. Each holder of Class
B Common Stock shall be entitled to convert, at any time and from time
to time, any or all of the shares of such holder's Class B Common Stock
on a one-for-one basis, into the same
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number of fully paid and non-assessable shares of Class A Common Stock.
Such right shall be exercised by the surrender to the Corporation of the
certificate or certificates representing the shares of Class B Common
Stock to be converted at any time during normal business hours at the
principal executive offices of the Corporation or at the office of the
Corporation's transfer agent (the "Transfer Agent"), accompanied by a
written notice of the holder of such shares stating that such holder
desires to convert such shares, or a stated number of the shares
represented by such certificate or certificates, into an equal number of
shares of Class A Common Stock, and (if so required by the Corporation
or the Transfer Agent) by instruments of transfer, in form satisfactory
to the Corporation and to the Transfer Agent, duly executed by such
holder or such holder's duly authorized attorney, and transfer tax
stamps or funds therefor, if required pursuant to Section 3.7 of Part B
of this Article 4.
3.2 Automatic Conversion Upon Transfer.
3.2.1 Each share of Class B Common Stock Transferred (as
defined in Section 3.2.4), directly or indirectly, by a beneficial owner
(as defined in Section 3.2.4) of Class B Common Stock (a "Class B
Shareholder") to one or more individuals, corporations, limited
liability companies, partnerships, joint ventures, trusts,
unincorporated organizations or other entities (each, a "Person"), other
than a Permitted Transferee shall automatically convert into one fully
paid and non-assessable share of Class A Common Stock upon such
disposition. Any purported transferee of shares of Class B Common Stock
purported to be Transferred in violation of this Section 3.2.1 shall
have no rights as a stockholder of the Corporation and no other rights
against, or with respect to, the Corporation, except the right to
receive shares of Class A Common Stock upon the conversion of his, her
or its shares of Class B Common Stock into shares of Class A Common
Stock. Notwithstanding the foregoing, if any Permitted Transferee ceases
to qualify as a Permitted Transferee at any time following the transfer
of the Class B Common Stock, then each share of the Class B Common Stock
transferred to such Permitted Transferee shall automatically convert, at
the time that the transferee ceases to so qualify, into one fully paid
and non-assessable share of Class A Common Stock. Determinations as to
the occurrence of events listed in this Section 3.2 shall be made by a
majority of the Board of Directors.
3.2.2. Notwithstanding anything to the contrary set forth in
Section 3.2.1, any Class B Shareholder may pledge his, her or its shares
of Class B Common Stock to a pledgee pursuant to a bona fide pledge of
such shares as collateral security for indebtedness due to the pledgee,
provided that such shares shall not be transferred to or registered in
the name of the pledgee and shall remain subject to the provisions of
this Section 3.2. In the event of foreclosure, realization or other
similar action by the pledgee, such pledged shares of Class B Common
Stock may only be transferred to a Permitted Transferee of the pledgor
or converted into shares of Class A Common Stock, as the pledgee may
elect.
3.2.3 The Corporation shall note on the certificates
representing shares of Class B Common Stock the restrictions on transfer
and registration of transfer imposed by this Section 3.2.
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3.2.4 For the purpose of this Article 4, the term "beneficial
owner(s)" of any shares of Class B Common Stock means a Person that has
or shares the power, either singly or jointly, to direct the voting or
disposition of such shares. A "Permitted Transferee" means any Class B
Shareholder and any holder of an option or warrant to acquire shares of
Class B Common Stock, together with (i) any such Person's spouse, parent
and any lineal descendant (including any adopted child) of a parent of
any such Person or of any such Person's spouse; (ii) any trustee,
guardian or custodian for, or any executor, administrator or other legal
representative of the estate of, any of the foregoing Permitted
Transferees; (iii) the trustee of a trust (including a voting trust)
principally for the benefit of any such Person and/or any of his or her
Permitted Transferees described in clause (i) above, (iv) in the case of
any Person that is the beneficial owner, directly or indirectly, of five
percent (5%) or more of the aggregate number of shares of Class B Common
Stock then issued and outstanding (a "Five-percent Holder"), any
Subsidiary of any such Five-percent Holder, and (v) any entity with
which any Five-percent Holder, or any Subsidiary of any Five-percent
Holder that holds, directly or indirectly, all of the shares of Class B
Common Stock beneficially owned by such Five-percent Holder, is merged
or consolidated (notwithstanding whether the Five-percent Holder or such
Subsidiary of the Five-percent Holder is the surviving entity in such
merger or consolidation), and any Person that acquires all or
substantially all of the assets of any Five-percent Holder or of any
such Subsidiary of a Five-percent Holder. A "Subsidiary" of a Class B
Shareholder or any other Person means any corporation, partnership,
limited liability company, association, trust, unincorporated
association or other legal entity of which the Class B Shareholder or
any such other Person, as the case may be (either alone or through or
together with any other Subsidiary), (1) owns, directly or indirectly,
50% or more of the capital stock or other equity interests that are
generally entitled to vote for the election of the board of directors or
other governing body of such corporation or other entity, or (2) has the
contractual or other power to designate a majority of the board of
directors or other governing body of such corporation or other entity. A
"Transfer" means any transfer, sale, assignment, gift, bequest,
appointment or other disposition.
3.3 If at any time the number of shares of Class B Common
Stock owned by Nextel Communications Group (as defined herein) in the
aggregate constitutes less than 30% of the aggregate number of shares of
Common Stock then issued and outstanding, and thereafter remains less
than 30% of the aggregate number of shares of Common Stock issued and
outstanding for a continuous period greater than 90 days from the most
recent date on which such ownership constituted less than such 30%, then
each share of Class B Common Stock then issued and outstanding shall
thereupon be converted automatically as of such date into one fully paid
and non-assessable share of Class A Common Stock. Upon the determination
by a majority of the Board of Directors that such automatic conversion
has occurred, notice of such automatic conversion shall be given by the
Corporation as soon as practicable thereafter by means of written notice
to all holders of Class B Common Stock, and the Secretary of the
Corporation shall be instructed to, and shall promptly, request from
each holder of Class B Common Stock that each such holder promptly
deliver, and each such holder shall promptly deliver, the certificate
representing each such share of Class B Common Stock to the Corporation
for exchange hereunder, together with instruments of transfer, in form
satisfactory to the Corporation and the Transfer Agent, duly executed by
such holder or such holder's duly
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authorized attorney, and together with transfer tax stamps or funds
therefor, if required pursuant to Section 3.7. "Nextel Communications
Group" means and includes Nextel Communications, Inc. ("NCI"), all
Subsidiaries of NCI, any entity with which NCI or any such Subsidiary is
merged or consolidated (notwithstanding whether NCI or such Subsidiary
is the surviving entity in such merger or consolidation), and any Person
that acquires all or substantially all of the assets of NCI or any such
Subsidiary.
3.4 As promptly as practicable following the surrender for
conversion of a certificate representing shares of Class B Common Stock
in the manner provided in Section 3.1, 3.2 or 3.3, and the payment in
cash of any amount required by the provisions of Section 3.7, the
Corporation will deliver or cause to be delivered at the office of the
Transfer Agent, a certificate or certificates representing the number of
shares of Class A Common Stock issuable upon such conversion, issued in
such name or names as such holder may direct. Such conversion shall be
deemed to have been effected immediately prior to the close of business
on the date on which the event causing the conversion occurs. Upon the
date any such conversion is deemed made or effected, all rights of the
holder of such shares of Class B Common Stock as such holder shall
cease, and the Person or Persons in whose name or names the certificate
or certificates representing the shares of Class A Common Stock are to
be issued shall be treated for all purposes as having become the record
holder or holders of such shares of Class A Common Stock; provided,
however, that if any such surrender and payment occurs on any date when
the stock transfer books of the Corporation shall be closed, the person
or persons in whose name or names the certificate or certificates
representing shares of Class A Common Stock are to be issued shall be
deemed the record holder or holders thereof for all purposes immediately
prior to the close of business on the next succeeding day on which the
stock transfer books are open.
3.5 Upon any reclassification or other similar transaction
that results in the shares of Class A Common Stock being converted into
or exchanged for another security, holders of Class B Common Stock shall
be entitled to receive upon conversion or exchange of such Class B
Common Stock the amount of such security that such holder would have
received if such conversion or exchange had occurred immediately prior
to the record date of such reclassification or other similar
transaction. No adjustments in respect of dividends shall be made upon
the conversion or exchange of any share of Class B Common Stock;
provided, however, that if a share of Class B Common Stock shall be
converted or exchanged subsequent to the record date for the payment of
a dividend or other distribution on shares of Class B Common Stock but
prior to such payment, then the registered holder of such share at the
close of business on such record date shall be entitled to receive the
dividend or other distribution payable on such share on such date
notwithstanding the conversion or exchange thereof or the default in
payment of the dividend or distribution due on such date.
3.6 The Corporation covenants that it shall at all times
reserve and keep available out of its authorized but unissued shares of
Class A Common Stock solely for the purpose of issuance upon conversion
of shares of Class B Common Stock, such number of shares of Class A
Common Stock that shall be issuable upon the conversion of all shares of
Class B Common Stock outstanding or subject to options or warrants. The
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Corporation covenants that if any shares of Class A Common Stock require
registration with or approval of any Governmental Authority under any
federal or state law before such shares of Class A Common Stock may be
issued upon conversion of any Class B Common Stock, the Corporation
shall cause such shares to be duly registered or approved, as the case
may be. The Corporation shall use its reasonable best efforts to list or
otherwise qualify for trading the shares of Class A Common Stock
required to be delivered upon conversion or exchange prior to such
delivery upon each national securities exchange, automated quotation
system or other market upon which the outstanding Class A Common Stock
is listed or qualified for trading at the time of such delivery. The
Corporation covenants that all shares of Class A Common Stock that shall
be issued upon conversion of the shares of Class B Common Stock will,
upon issue, be validly issued, fully paid and non-assessable.
"Governmental Authority" means any federal, state or local or any
foreign government, governmental, regulatory or administrative authority
or commission or any court, tribunal or agency.
3.7 The issuance of certificates for shares of Class A
Common Stock upon conversion of shares of Class B Common Stock shall be
made without charge to the holders of such shares for any stamp or other
similar tax in respect of such issuance; provided, however, that if any
such certificate is to be issued in a name other than that of the holder
of the share or shares of Class B Common Stock being converted, then the
Person or Persons requesting the issuance thereof shall pay to the
Corporation the amount of any tax that may be payable in respect of any
transfer involved in such issuance or shall establish to the
satisfaction of the Corporation that such tax has been paid or is not
payable.
C. Terms of Series A Exchangeable Redeemable Preferred
Stock
1. Series A Stated Value.
1.1 Each share of Series A Exchangeable Redeemable Preferred
Stock (the "Series A Preferred Stock") will have a stated liquidation
value of $100,000 (the "Series A Stated Value"), which Series A Stated
Value will increase annually as set forth in Section 1.2. The
Corporation will issue fractional shares of Series A Preferred Stock
upon the original issuance, transfer or exchange of a Series A Preferred
Stock share, unless the Corporation and the holder of such Series A
Preferred Stock share agree upon a payment in lieu of any such
fractional share.
1.2 The Series A Stated Value will increase at an annual
rate of accretion equal to 13.625% (the "Rate of Accretion"), which
increase will be calculated semiannually on June 30 and on December 31
of each year during which any shares of Series A Preferred Stock remain
outstanding (each a "Semiannual Calculation Date"). All such increases
will be cumulative and will be calculated by multiplying the Series A
Stated Value as of the immediately prior Semiannual Calculation Date (or
in the case of the first semiannual increase on June 30, 1998, by the
original Series A Stated Value as set forth in Section 1.1) by
106.8125%, the product of which will constitute the Series A Stated
Value until the next such semiannual calculation. All calculations
required hereunder will be computed on the basis of a 360-day year of 12
30-day months.
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2. Dividends. The Series A Preferred Stock has no profit
participation or dividend rights, except as required by law.
3. Series A Liquidation Rights.
3.1 In the event of any liquidation, dissolution or winding
up of the business of the Corporation, whether voluntary or involuntary,
each holder of Series A Preferred Stock is entitled to receive, for each
share thereof, out of assets of the Corporation legally available
therefor, a preferential amount in cash equal to (and not more than) the
sum of (A) the Series A Stated Value as of the immediately prior
Semiannual Calculation Date, plus (B) an amount equal to the amount of
all legally required dividends or distributions thereon, if any, payable
pursuant to Section 2, plus (C) any Interim Accreted Value. "Interim
Accreted Value" means, for purposes of this Section 3.1, an amount equal
to (i) the Rate of Accretion expressed as a daily rate from the
immediately prior Semiannual Calculation Date through the effective date
of the liquidation, dissolution or winding up, multiplied by (ii) the
Series A Stated Value as of the immediately prior Semiannual Calculation
Date. All preferential amounts to be paid to the holders of any
outstanding shares of Series A Preferred Stock and Series B Preferred
Stock in connection with a liquidation, dissolution or winding up will
be paid before the payment or setting apart for payment of any amount
for, or the distribution of any assets of the Corporation to, the
holders of (x) any series of Preferred Stock whose terms provide that
the holders of Series A Preferred Stock should receive preferential
payment with respect to such distribution (to the extent of such
preference) or (y) common stock. If in any such distribution the assets
of the Corporation are insufficient to pay the holders of the
outstanding shares of the Series A Preferred Stock (and the holders of
any Series B Preferred Stock and any other class or series of capital
stock ranking on a parity with the Series A Preferred Stock as to
distributions in the event of a liquidation, dissolution or winding up
of the Corporation) the full amounts to which they may be entitled, such
holders will share ratably in any distribution of assets in accordance
with the sums which would be payable on such distribution if all sums
payable thereon were paid in full. In liquidation, shares of Series A
Preferred Stock and Series B Preferred Stock will rank on a pari passu
basis.
3.2 Holders of shares of Series A Preferred Stock will not
be entitled to receive any amounts with respect to any liquidation,
dissolution or winding up of the Corporation other than the amounts
provided in this Section 3. Neither a merger nor consolidation of the
Corporation into or with another corporation nor a merger or
consolidation of any other corporation into or with the Corporation, nor
a sale, transfer, mortgage, pledge or lease of all or any part of the
assets of the Corporation will be deemed to be a liquidation,
dissolution or winding up of the Corporation for purposes of this
Section 3.
4. Series A Voting Rights.
4.1 On matters as to which they are entitled to vote, the
holders of Series A Preferred Stock will be entitled to the number of
votes per share (calculated as of the date of any such vote) that is
equal to the Series A Stated Value as of the immediately prior
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Semiannual Calculation Date divided by 100,000. The holders of Series A
Preferred Stock will vote separately as a class on all matters as to
which they are entitled to vote, except as otherwise provided herein.
Any action that may be taken hereunder by the holders of the Series A
Preferred Stock at a meeting may be taken by the written consent of the
holders of shares of Series A Preferred Stock outstanding and entitled
to vote thereon.
4.2 Unless it has been approved by the vote of the holders
of a majority of the shares of Series A Preferred Stock and Series B
Preferred Stock outstanding, voting together as if they constituted a
single class, no amendment to the Certificate of Incorporation of the
Corporation can become effective if it (A) creates or authorizes the
creation of any class or series of capital stock (other than the Series
B Preferred Stock) ranking on parity with or superior to the Series A
Preferred Stock or the Series B Preferred Stock in any respect or (B)
alters or changes the powers, preferences or rights of shares of Series
A Preferred Stock or Series B Preferred Stock in a manner adverse to the
holders of Series A Preferred Stock and Series B Preferred Stock.
4.3 Unless holders of a majority of the shares of Series A
Preferred Stock and Series B Preferred Stock outstanding, voting
together as if they constituted a single class, have given their
approval, the Corporation is not authorized to merge, reorganize,
recapitalize, consolidate or consummate a share exchange (each a
"Transaction") if (A) the GAAP Net Worth of the successor or resulting
entity on a pro forma basis after giving effect to the Transaction (and
any related transactions) is not equal to or greater than the GAAP Net
Worth of the Corporation immediately prior to the Transaction, or (B)
the priority of the Series A Preferred Stock or the Series B Preferred
Stock in the capital stock of the successor or resulting entity will
rank on parity with or junior to any class or series of capital stock
that has been created or issued without the approval of the Series A
Preferred Stock and the Series B Preferred Stock pursuant to Section
4.2. "GAAP Net Worth" means the net worth of the Corporation or any
successor or resulting entity, as the case may be, calculated in
accordance with generally accepted accounting principles, as in effect
from time to time, on a basis consistent with past practice.
4.4 No dividend or other distribution will be declared or
paid on the common stock or any other stock of the Corporation ranking
junior to or ranking pari passu with the Series A Preferred Stock
(except any outstanding Series B Preferred Stock) without the prior
consent of the holders of a majority of the shares of Series A Preferred
Stock outstanding, and until any legally required dividends or
distributions owing on the Series A Preferred Stock have been paid in
full.
4.5 In addition to the voting rights set forth herein, the
holders of Series A Preferred Stock will be entitled to exercise such
voting rights as may be provided to them under Delaware law to the
extent such voting rights are not inconsistent with those set forth
herein. Nothing herein should be read or construed as limiting such
voting rights.
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5. Exchange for Series B Preferred Stock.
5.1 Series A Exchange Right.
5.1.1 Each holder of Series A Preferred Stock may, at any time
following a Exchange Trigger Event, exchange any or all of such holder's
shares of Series A Preferred Stock into such number of fully paid and
non-assessable shares of Series B Preferred Stock as equals (A) the sum
of the Series A Stated Value as of the immediately prior Semiannual
Calculation Date plus any Interim Accreted Value of such Series A
Preferred Stock, multiplied by (B) the number of shares of Series A
Preferred Stock being exchanged, divided by (C) the Series B Stated
Value (as defined in Section 1 of the Terms of Series B Redeemable
Preferred Stock). For purposes of this Section 5.1.1, "Interim Accreted
Value" means an amount equal to (i) the Rate of Accretion expressed as a
daily rate from the immediately prior Semiannual Calculation Date
through the date of exchange, multiplied by (ii) the Series A Stated
Value as of the immediately prior Semiannual Calculation Date. To the
extent necessary, the Corporation will issue fractional shares of Series
B Preferred Stock upon any exchange pursuant to this Section 5, unless
the Corporation and the holder of the Series A Preferred Stock being
exchanged agree upon a payment in lieu of any such fractional share. In
order to exercise the exchange privilege under this Section 5.1.1, a
holder of shares of Series A Preferred Stock must give written notice to
the Corporation at its principal office stating the holder's name and
address and the number of shares of Series A Preferred Stock such holder
elects to exchange.
5.1.2 "Exchange Trigger Event" means (A) the recapitalization
or reorganization of the Corporation; (B) a registered, underwritten
public offering of any capital stock of the Corporation; (C) the sale or
other disposition by Nextel Communications, Inc., a Delaware corporation
("Nextel Communications") or a wholly owned subsidiary of Nextel
Communications, of shares of common stock of the Corporation or (D) the
issuance of shares of common stock by the Corporation, such that
following any event covered by clause (C) or (D) above, Nextel
Communications owns less than fifty percent (50%) of the Corporation's
outstanding shares of common stock.
5.1.3 At such time as any certificate or certificates
representing the Series A Preferred Stock that has been exchanged are
surrendered to the Corporation, the Corporation will issue and deliver a
certificate or certificates representing the appropriate number of
shares of Series B Preferred Stock (calculated pursuant to Section
5.1.1) to each former holder of Series A Preferred Stock participating
in the exchange. In case of the exchange under Section 5.1.1 of only a
part of the shares of Series A Preferred Stock represented by a
certificate surrendered to the Corporation, the Corporation will
forthwith issue and deliver a new certificate for the number of shares
of Series A Preferred Stock that have not been exchanged. Until any
certificate or certificates representing Series A Preferred Stock that
has been exchanged are surrendered and a certificate or certificates
representing the Series B Preferred Stock into which such Series A
Preferred Stock has been exchanged has been issued and delivered, the
certificate or certificates representing the shares of Series A
Preferred Stock that have been exchanged will represent the shares of
Series B Preferred Stock into which such shares of Series A Preferred
Stock have been
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exchanged. The Corporation will pay all documentary, stamp or similar
issue or transfer tax, if any, due on the issue of shares of Series B
Preferred Stock issuable upon exchange of the Series A Preferred Stock.
6. Redemption.
6.1 Corporation's Right to Redeem. The Corporation may (A)
in its sole discretion and at any time, redeem all shares of the Series
A Preferred Stock outstanding or (B) with the prior consent of the
holders of a majority of such shares outstanding, redeem a portion of
the Series A Preferred Stock then outstanding, on a pro rata basis, in
either case at a total per share redemption price equal to the sum of
the Series A Stated Value as of the immediately prior Semiannual
Calculation Date plus any Interim Accreted Value. "Interim Accreted
Value," for purposes of this Section 6.1, means an amount equal to (i)
the Rate of Accretion expressed as a daily rate from the immediately
prior Semiannual Calculation Date through the Series A Redemption Date,
multiplied by (ii) the Series A Stated Value as of the immediately prior
Semiannual Calculation Date.
6.2 Series A Redemption Notice.
6.2.1 Subject to the requirements of Section 6.1, the
Corporation may call all or a portion of the outstanding shares of
Series A Preferred Stock for redemption and set a date for the
redemption (the "Series A Redemption Date"). Notice of such proposed
redemption (the "Series A Redemption Notice") must be mailed at least 45
days prior to the Series A Redemption Date to all holders of shares of
Series A Preferred Stock at their respective addresses as the same
appear on the stock record books of the Corporation. Each Series A
Redemption Notice will state (A) the Series A Redemption Date, (B) the
Series A Redemption Price, (C) the place or places where such shares of
Series A Preferred Stock are to be surrendered, and (D) that legally
required dividends or distributions, if any, on shares of Series A
Preferred Stock to be redeemed will cease to accrue on the Series A
Redemption Date. No defect in any such notice as to any shares of Series
A Preferred Stock will affect the proceedings for the redemption of any
shares of Series A Preferred Stock.
6.2.2 Upon surrender in accordance with the Series A
Redemption Notice of the certificates for any shares of Series A
Preferred Stock so redeemed (properly endorsed or assigned for transfer,
if the Board of Directors so requires and the notice so states), such
shares of Series A Preferred Stock will be redeemed by the Corporation,
which will make payment to the surrendering holder in an amount equal to
the product of the applicable Series A Redemption Price multiplied by
the number of shares of Series A Preferred Stock being surrendered by
such holder for redemption.
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6.3 Payment Prior to Series A Redemption Date.
6.3.1 If a Series A Redemption Notice is duly given as
provided for above, or if the Corporation has given to the bank or trust
company hereinafter referred to irrevocable authorization to give or
complete such Series A Redemption Notice, and if prior to the applicable
Series A Redemption Date the funds necessary for such redemption have
been deposited by the Corporation with a bank or trust company in good
standing (which bank or trust company will have been identified in a
written notice given to the holders whose shares of Series A Preferred
Stock are to be redeemed), organized under the laws of the United States
of America or a State thereof, having a capital surplus and undivided
profits aggregating at least $100,000,000 according to its last
published statement of condition, in trust for the pro rata benefit of
the holders of the shares of Series A Preferred Stock so called for or
otherwise subject to redemption, so as to be, and to continue to be,
available therefor, then, notwithstanding that any certificate for
shares of Series A Preferred Stock so called for or otherwise subject to
redemption may not have been surrendered for cancellation, all shares of
Series A Preferred Stock so called for or otherwise subject to
redemption will no longer be deemed to be outstanding on and after such
Series A Redemption Date, and all rights with respect to such shares
will forthwith cease and terminate at the close of business on such
Series A Redemption Date, except only the right of the holders thereof
to receive, out of the funds so set aside in trust, the amount payable
on redemption thereof, without interest. Any interest accrued on any
funds so deposited will be the property of the Corporation and will be
paid to the Corporation from time to time.
6.3.2 Any funds set aside or deposited, as the case may be, in
accordance with Section 6.3.1 that remain unclaimed at the end of one
year from the applicable Series A Redemption Date will be released or
repaid to the Corporation, after which the holders of the shares of
Series A Preferred Stock so called for redemption will look only to the
Corporation for payment of the amount payable on redemption thereof,
without interest, subject to the applicable law of escheat.
7. Other Provisions.
7.1 Issuance of Shares. The Corporation will not issue, or
enter into any commitment to issue, shares of Series A Preferred Stock
except (A) pursuant to the terms of any agreement in effect on November
22, 2000 or (B) such other issuances or issuance commitments as have
been approved in advance by the vote of the holders of a majority of the
shares of Series A Preferred Stock and Series B Preferred Stock
outstanding, voting together as if they constituted a single class.
7.2 Cancellation of Shares of Series A Preferred Stock. No
share or shares of Series A Preferred Stock acquired by the Corporation
for any reason can be reissued, and all such shares will be canceled,
retired and eliminated from the shares of Series A Preferred Stock which
the Corporation is authorized to issue.
7.3 Reservation of Shares. The Corporation will at all times
reserve from its authorized Series B Preferred Stock a sufficient number
of shares to provide for exchange
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of all shares of Series A Preferred Stock from time to time outstanding.
7.4 Notices. The Corporation will provide to each holder of
shares of Series A Preferred Stock a copy of any materials delivered to
the holders of any other shares of the Corporation's capital stock by or
on behalf of the Corporation at the same time such materials are being
delivered to such other holders.
7.5 Record Holders. The Corporation and its transfer agent,
if any, for the shares of Series A Preferred Stock, may deem and treat
the record holder of any shares of Series A Preferred Stock as the sole
true and lawful owner thereof for all purposes, and neither the
Corporation nor any such transfer agent will be affected by any notice
to the contrary.
D. Terms of Series B Redeemable Preferred Stock.
1. Series B Stated Value. Each share of Series B Redeemable
Preferred Stock (the "Series B Preferred Stock") will have a liquidation
preference at a stated value, calculated at the time the first share(s)
of Series A Preferred Stock are exchanged into share(s) of Series B
Preferred Stock, equal to the Series A Stated Value as of the
immediately prior Semiannual Calculation Date plus an amount equal to
any Interim Accreted Value (the "Series B Stated Value"). "Interim
Accreted Value," for the purposes of this Section 1, means an amount
equal to (i) the Rate of Accretion expressed as a daily rate from the
immediately prior Semiannual Calculation Date through the date of
exchange, multiplied by (ii) the Series A Stated Value as of the
immediately prior Semiannual Calculation Date. The Corporation will
issue fractional shares of Series B Preferred Stock upon the original
issuance, transfer or exchange of a Series B Preferred Stock share,
unless the Corporation and the holder of such Series B Preferred Stock
share agree upon a payment in lieu of any such fractional share. All
future issuances of Series B Preferred Stock, following the first such
issuance, will be made at the Series B Stated Value.
2. Dividends.
2.1 (a) Beginning on their date of issuance, holders of
Series B Preferred Stock will be entitled to receive, when, as and if
declared by the Board of Directors, out of funds legally available
therefor, dividends on each share of Series B Preferred Stock
outstanding held by them, at a rate per annum equal to 13.625% of the
Series B Stated Value, or a daily rate of 0.0378% of the Series B Stated
Value (the "Daily Rate"). Such dividends will be cumulative, whether or
not earned or declared, and will be payable quarterly in arrears on
March 31, June 30 and September 30, December 31 (each a "Distribution
Date") of each year or portion thereof ending on or prior to March 12,
2010 (such twelve-year period, the "Initial Term") during which any
shares of Series B Preferred Stock remain outstanding and also shall be
payable in arrears on March 12, 2010 with respect to the period from
January 1, 2010 to March 12, 2010 if any shares of Series B Preferred
Stock remain outstanding.
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(b) During each twelve-month period beginning on
March 13, 2010 and on each subsequent March 13 (each, a "Subsequent
Year"), holders of Series B Preferred Stock will be entitled to receive,
when, as and if declared by the Board of Directors, out of funds legally
available therefor, dividends on each share of Series B Preferred Stock
outstanding held by them, at a rate per annum equal to 18.00% of the
Series B Stated Value, or a daily rate of 0.0500% of the Series B Stated
Value (the "Subsequent Year Daily Rate"). Such dividends will be
cumulative, whether or not earned or declared, and will be payable on
June 12, September 12, and December 12, March 12 in each such Subsequent
Year, commencing on June 12, 2010 (each, a "Subsequent Year Distribution
Date") if any shares of Series B Preferred Stock remain outstanding.
2.2 Dividends on the Series B Preferred Stock will be
computed on the basis of a 360-day year of twelve 30-day months.
2.3 References herein to the "Appropriate Year" shall mean a
year during the Initial Term or a Subsequent Year, as appropriate to the
context. References herein to the "Appropriate Daily Rate" shall mean
the Daily Rate or a Subsequent Year Daily Rate, as appropriate to the
context. References herein to an "Appropriate Distribution Date" shall
mean a Distribution Date or a Subsequent Year Distribution Date, as
appropriate to the context.
2.4 Dividends payable on the outstanding shares of Series B
Preferred Stock shall be paid in cash or, at the option of the
Corporation, in additional fully paid and non-assessable shares of
Series B Preferred Stock having an aggregate Series B Stated Value equal
to the amount of such dividends ("PIK Dividend Shares"); provided, that,
PIK Dividend Shares may not be issued to pay any amount of accrued but
unpaid dividends or distributions due pursuant to Section 3 below, or
any amount of accrued but unpaid dividends or distributions due pursuant
to Section 5 below. All PIK Dividend Shares, from and after their
issuance on the Appropriate Distribution Date, shall have the same
rights and privileges as any other outstanding shares of Series B
Preferred Stock.
3. Series B Liquidation Rights.
3.1 In the event of any liquidation, dissolution or winding
up of the business of the Corporation, whether voluntary or involuntary,
each holder of Series B Preferred Stock will be entitled to receive, for
each share thereof, out of assets of the Corporation legally available
therefor, a preferential amount in cash equal to (and not more than) the
sum of (A) the Series B Stated Value plus (B) an amount equal to the
amount of all declared (or due to be declared), but unpaid dividends or
distributions thereon, if any, payable pursuant to Section 2.1 during
each Appropriate Year, plus an amount equal to the Appropriate Daily
Rate multiplied by the Series B Stated Value, multiplied by the number
of days since the immediately prior Appropriate Distribution Date. All
preferential amounts to be paid to the holders of any outstanding shares
of Series B Preferred Stock and Series A Preferred Stock in connection
with such liquidation, dissolution or winding up will be paid before the
payment or setting apart for payment of any amount for, or the
distribution of any assets of the Corporation to, the holders of
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(i) any other series of preferred stock whose terms provide that the
holders of Series B Preferred Stock should receive preferential payment
with respect to such distribution (to the extent of such preference) or
(ii) common stock. If in any such distribution the assets of the
Corporation are insufficient to pay the holders of the outstanding
shares of the Series B Preferred Stock (and the holders of any Series A
Preferred Stock and any class or series of capital stock ranking on a
parity with the Series B Preferred Stock as to distributions in the
event of a liquidation, dissolution or winding up of the Corporation)
the full amounts to which they may be entitled, such holders will share
ratably in any distribution of assets in accordance with the sums which
would be payable upon such distribution if all sums payable thereon were
paid in full. In liquidation, shares of Series B Preferred Stock and
Series A Preferred Stock will rank on a pari passu basis.
3.2 Holders of shares of Series B Preferred Stock will not
be entitled to receive any amounts with respect to any liquidation,
dissolution or winding up of the Corporation other than the amounts
provided in this Section 3. Neither a merger nor consolidation of the
Corporation into or with another corporation nor a merger or
consolidation of any other corporation into or with the Corporation, nor
a sale, transfer, mortgage, pledge or lease of all or any part of the
assets of the Corporation will be deemed to be a liquidation,
dissolution or winding up of the Corporation for purposes of this
Section 3.
4. Series B Voting Rights.
4.1 On all matters as to which they are entitled to vote,
the holders of Series B Preferred Stock will be entitled to the number
of votes per share (calculated as of the date of any such vote) that is
equal to the Series B Stated Value divided by 100,000. The holders of
Series B Preferred Stock will vote separately as a class on all matters
as to which they are entitled to vote, except as otherwise provided
herein. Any action that may be taken hereunder by the holders of the
Series B Preferred Stock at a meeting may be taken by the written
consent of the holders of shares of Series B Preferred Stock outstanding
and entitled to vote thereon.
4.2 Immediately following the issuance of any shares of
Series B Preferred Stock, the number of Directors constituting the Board
of Directors will be adjusted to permit the holders of the majority of
the then outstanding shares of Series B Preferred Stock, voting
separately as a class, to elect one additional Director to the Board of
Directors (the "Series B Director"). The Series B Director's initial
term will expire at the next regularly scheduled meeting of the holders
of the common stock of the Corporation, at which meeting the holders of
shares of Series B Preferred Stock outstanding voting separately as a
class will be entitled to elect one Director. Any individual elected to
the Board of Directors by vote of the Series B Preferred Stock pursuant
to this Section 4.2 is referred to herein as a "Series B Director."
4.3 A Series B Director may only be removed from office by
the vote of the holders of a majority of shares of Series B Preferred
Stock outstanding, voting separately as a class. Except as set forth in
Section 4.7, any vacancy for the Series B Director
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position may be filled only by the vote of the holders of a majority of
shares of Series B Preferred Stock outstanding, voting separately as a
class.
4.4 If dividends on the Series B Preferred Stock are in
arrears and unpaid for four consecutive quarterly periods or for any six
quarterly periods (whether or not consecutive) (each, a "Dividend
Default"), then the number of Directors constituting the Board of
Directors will be adjusted to permit the holders of the majority of the
then outstanding shares of Series B Preferred Stock, voting separately
as a class, to elect an additional Director (the "Series B Default
Director"). For the purpose of determining the number of quarterly
periods for which accrued dividends have not been paid, any accrued and
unpaid dividend that is subsequently paid will not be treated as unpaid.
4.5 The right of the holders of Series B Preferred Stock to
elect the Series B Default Director as described above will continue
until such time as all accumulated dividends that are in arrears on the
Series B Preferred Stock are paid in full, at which time the term of any
Series B Default Director elected pursuant to Section 4.4 hereof will
terminate and the number of Directors constituting the Board of
Directors will be reduced to the number necessary to reflect the
termination of the right of the holders of the Series B Preferred Stock
to elect a Series B Default Director, subject always to the same
provisions for the renewal and divestment of such special voting rights
in the case of any future Dividend Default. At any time after voting
power to elect a Series B Default Director has become vested and is
continuing in the holders of shares of the Series B Preferred Stock
pursuant to Section 4.4 hereof, or if a vacancy exists in the office of
the Series B Default Director elected by the holders of shares of the
Series B Preferred Stock, an officer of the Corporation may, and upon
the written request of the record holders of at least 25% of the shares
of Series B Preferred Stock then outstanding addressed to the secretary
of the Corporation must, call a special meeting of the holders of the
Series B Preferred Stock, for the purpose of electing a new Series B
Default Director. If such meeting is called by an officer of the
Corporation within 30 days after personal service of said written
request upon the secretary of the Corporation, or within 30 days after
mailing the same within the United States by certified mail, addressed
to the secretary of the Corporation at its principal executive offices,
then the holders of record of at least 25% of the shares of the Series B
Preferred Stock outstanding may designate in writing one of their number
to call such meeting at the expense of the Corporation, and such meeting
may be called by the person so designated upon the notice required for
the annual meetings of stockholders of the Corporation and will be held
at the place for holding the annual meetings of stockholders or such
other place in the United States as may be designated in such notice.
Notwithstanding the provisions of this Section 4.5, no such special
meeting need be called if any such request is received less than 40 days
before the day fixed for the next ensuing annual or special meeting of
stockholders of the Corporation. The Corporation will provide any holder
of shares of the Series B Preferred Stock so designated access to the
lists of holders of shares of the Series B Preferred Stock for purposes
of calling a meeting pursuant to the provisions of this Section 4.5.
4.6 At any meeting held for the purpose of electing a Series
B Director or a Series B Default Director, the presence in person or by
proxy of the holders of at least a
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majority of the shares of Series B Preferred Stock outstanding will be
required to constitute a quorum of such Series B Preferred Stock.
4.7 Any vacancy occurring in the office of the Series B
Director can be filled by a then serving Series B Default Director, if
any, and any vacancy occurring in the office of the Series B Default
Director, if applicable, can be filled by any then serving Series B
Director, in either case unless and until the holders of a majority of
the shares of Series B Preferred Stock outstanding elect another person
to fill any such vacancy.
4.8 Upon the redemption of the last share of Series B
Preferred Stock then outstanding, the number of Directors constituting
the Board of Directors will be adjusted to eliminate any then existing
Series B Director or Series B Default Director seats, subject always to
the provisions of this Section 4 for the renewal and divestment of such
special Series B Preferred Stock voting rights on the subsequent
issuance of any shares of Series B Preferred Stock.
4.9 Unless it has been approved by the vote of the holders
of a majority of shares of Series A Preferred Stock and Series B
Preferred Stock outstanding, each voting together as if they constituted
a single class, no amendment to the Certificate of Incorporation of the
Corporation can become effective if it (A) creates or authorizes the
creation of any class or series of capital stock (other than the Series
A Preferred Stock) ranking on parity with or superior to the Series A
Preferred Stock or the Series B Preferred Stock in any respect or (B)
alters or changes the powers, preferences or rights of shares of Series
B Preferred Stock in a manner adverse to the holders of the Series A
Preferred Stock or the Series B Preferred Stock.
4.10 Unless holders of a majority of shares of Series A
Preferred Stock and Series B Preferred Stock outstanding, voting
together as if they constituted a single class, have given their
approval, the Corporation is not authorized to participate or engage in
any Transaction if (A) the GAAP Net Worth of the successor or resulting
entity on a pro forma basis after giving effect to the Transaction (and
any related transactions) is not equal to or greater than the GAAP Net
Worth of the Corporation immediately prior to the Transaction or (B) the
priority of the Series B Preferred Stock in the capital stock of the
successor or resulting entity is on parity with or junior to any class
or series of capital stock that has been created or issued without the
approval of the Series A Preferred Stock and Series B Preferred Stock
pursuant to Section 4.9.
4.11 No dividend or other distribution will be declared or
paid on the common stock or any other stock of the Corporation ranking
junior to or ranking pari passu with the Series B Preferred Stock
(except as required by law on any outstanding Series A Preferred Stock)
without the prior consent of the holders of a majority of the shares of
Series B Preferred Stock outstanding and until any dividends or
distributions owing on the Series B Preferred Stock have been paid in
full.
4.12 In addition to the voting rights set forth herein, the
holders of Series B Preferred Stock will be entitled to exercise such
voting rights as may be provided to them
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under Delaware law to the extent such voting rights are not inconsistent
with those set forth herein. Nothing herein should be read or construed
as limiting such voting rights.
5. Redemption of Series B Preferred Stock.
5.1 Corporation's Right to Redeem. The Corporation may (A)
in its sole discretion and at any time, redeem all shares of the Series
B Preferred Stock outstanding, or (B) with the consent of the holders of
a majority of such shares outstanding, redeem a portion of the Series B
Preferred Stock then outstanding, on a pro rata basis, in either case at
a total per share redemption price equal to the sum of the Series B
Stated Value, plus an amount equal to the amount of all declared (or due
to be declared), but unpaid dividends or distributions thereon, if any,
payable pursuant to Section 2.1, through the immediately prior
Appropriate Distribution Date, plus an amount equal to the product of
the Appropriate Daily Rate multiplied by the Series B Stated Value,
multiplied by the number of days since the immediately prior Appropriate
Distribution Date (the "Series B Redemption Price").
5.2 Series B Redemption Notice.
5.2.1 Subject to the provisions of Section 5.1, the
Corporation may call all or a portion of the outstanding shares of
Series B Preferred Stock for redemption and set a date for the
redemption (the "Series B Redemption Date"). Notice of a proposed
redemption pursuant to Section 5.1 (each such notice a "Series B
Redemption Notice") must be mailed at least 45 days prior to the Series
B Redemption Date to all holders of shares of Series B Preferred Stock
at their respective addresses as the same appear on the stock record
books of the Corporation. Each Series B Redemption Notice will state (A)
the Series B Redemption Date, (B) the Series B Redemption Price, (C) the
place or places where such shares of Series B Preferred Stock are to be
surrendered, and (D) that dividends on shares of Series B Preferred
Stock to be redeemed will cease to accrue on the Series B Redemption
Date. No defect in any such notice as to any shares of Series B
Preferred Stock will affect the proceedings for the redemption of any
shares of Series B Preferred Stock.
5.2.2 Upon surrender in accordance with the Series B
Redemption Notice of the certificates for any shares of Series B
Preferred Stock so redeemed (properly endorsed or assigned for transfer,
if the Board of Directors so requires and the notice so states), such
shares of Series B Preferred Stock will be redeemed by the Corporation,
which will make payment to the surrendering holder in an amount equal to
the product of the applicable Series B Redemption Price, multiplied by
the number of shares of Series B Preferred Stock being surrendered by
such holder for redemption.
5.3 Payment Prior to Series B Redemption Date.
5.3.1 If a Series B Redemption Notice is duly given as
provided for above, or if the Corporation has given to the bank or trust
company hereinafter referred to irrevocable authorization to give or
complete such Series B Redemption Notice, and if prior to the applicable
Series B Redemption Date the funds necessary for such redemption will
have
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been deposited by the Corporation with a bank or trust company in good
standing (which bank or trust company will have been identified in a
written notice given to the holders whose shares of Series B Preferred
Stock are to be redeemed), organized under the laws of the United States
of America or a State thereof, having a capital surplus and undivided
profits aggregating at least $100,000,000 according to its last
published statement of condition, in trust for the pro rata benefit of
the holders of the shares of Series B Preferred Stock so called for or
otherwise subject to redemption, so as to be, and to continue to be,
available therefor, then, notwithstanding that any certificate for
shares of Series B Preferred Stock so called for or otherwise subject to
redemption may not have been surrendered for cancellation, all shares of
Series B Preferred Stock so called for or otherwise subject to
redemption will no longer be deemed to be outstanding on and after such
Series B Redemption Date and all rights with respect to such shares will
forthwith cease and terminate at the close of business on such Series B
Redemption Date, except only the right of the holders thereof to
receive, out of the funds so set aside in trust, the amount payable on
redemption thereof, without interest. Any interest accrued on any funds
so deposited will be the property of the Corporation and will be paid to
the Corporation from time to time.
5.3.2 Any funds set aside or deposited, as the case may be, in
accordance with Section 5.3.1 that remain unclaimed at the end of one
year from the applicable Series B Redemption Date will be released or
repaid to the Corporation, after which the holders of the shares of
Series B Preferred Stock so called for redemption will look only to the
Corporation for payment of the amount payable on redemption thereof,
without interest, subject to the applicable law of escheat.
6. Other Provisions.
6.1 Issuance of Shares. The Corporation will not issue, or
enter into any commitment to issue, shares of Series B Preferred Stock
except (A) in exchange of shares of Series A Preferred Stock on the
terms and subject to the conditions set forth in the Terms of Series A
Exchangeable Redeemable Preferred Stock, or (B) as PIK Dividend Shares
as contemplated in accordance with Section 2.4 above, or (C) such other
issuances or issuance as have been approved in advance by the vote of
the holders of a majority of the shares of any Series A Preferred Stock
and Series B Preferred Stock outstanding, voting together as if they
constituted a single class.
6.2 Cancellation of Shares of Series B Preferred Stock. No
share or shares of Series B Preferred Stock acquired by the Corporation
for any reason will be reissued, and all such shares will be canceled,
retired and eliminated from the shares of Series B Preferred Stock which
the Corporation is authorized to issue.
6.3 Reservation of Shares. The Corporation will at all times
reserve from its authorized Series B Preferred Stock a sufficient number
of shares to provide for exchange of all shares of Series A Preferred
Stock from time to time outstanding and for payment of the maximum
amount of PIK Dividend Shares issuable in respect of all Shares of
Series B Preferred Stock from time to time outstanding.
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6.4 Notices. The Corporation will provide to each holder of
shares of Series B Preferred Stock a copy of any materials delivered to
the holders of any other shares of the Corporation's capital stock by or
on behalf of the Corporation at the same time such materials are being
delivered to such other holders.
6.5 Record Holders. The Corporation and its transfer agent,
if any, for the Series B Preferred Stock, may deem and treat the record
holder of any shares of Series B Preferred Stock as the sole true and
lawful owner thereof for all purposes, and neither the Corporation nor
any such transfer agent will be affected by any notice to the contrary.
E. Undesignated Preferred Stock.
Authority is hereby expressly granted to the Board of Directors
from time to time to issue the Undesignated Preferred Stock as preferred
stock of one or more series and in connection with the creation of any
such series to fix by the resolution or resolutions providing for the
issue of shares thereof the designation, voting powers, preferences, and
relative, participating, optional, or other special rights of such
series, and the qualifications, limitations, or restrictions thereof.
Such authority of the Board of Directors with respect to each such
series shall include, but not be limited to, the determination of the
following:
(a) the distinctive designation of, and the number of shares
comprising, such series, which number may be increased
(except where otherwise provided by the Board of
Directors in creating such series) or decreased (but not
below the number of shares thereof then outstanding)
from time to time by like action of the Board of
Directors;
(b) the dividend rate or amount for such series, the
conditions and dates upon which such dividends shall be
payable, the relation which such dividends shall bear to
the dividends payable on any other class or classes or
any other series of any class or classes of stock, and
whether such dividends shall be cumulative, and if so,
from which date or dates for such series;
(c) whether or not the shares of such series shall be
subject to redemption by the Corporation and the times,
prices, and other terms and conditions of such
redemption;
(d) whether or not the shares of such series shall be
subject to the operation of a sinking fund or purchase
fund to be applied to the redemption or purchase of such
shares and if such a fund be established, the amount
thereof and the terms and provisions relative to the
application thereof;
(e) whether or not the shares of such series shall be
convertible into or exchangeable for shares of any other
class or classes, or of any other series of any class or
classes, of stock of the Corporation and if provision be
made for conversion or exchange, the times, prices,
rates, adjustments, and other terms and conditions of
such conversion or exchange;
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(f) whether or not the shares of such series shall have
voting rights, in addition to the voting rights provided
by law, and if they are to have such additional voting
rights, the extent thereof;
(g) the rights of the shares of such series in the event of
any liquidation, dissolution, or winding up of the
Corporation or upon any distribution of its assets; and
(h) any other powers, preferences, and relative,
participating, optional, or other special rights of the
shares of such series, and the qualifications,
limitations, or restrictions thereof, to the full extent
now or hereafter permitted by law and not inconsistent
with the provisions hereof.
5. The Board of Directors is authorized to make, alter or repeal
the bylaws of the Corporation. Election of directors need not be by written
ballot.
6. Each person who is or was or had agreed to become a Director or
officer of the Corporation, or each such person who is or was serving or had
agreed to serve at the request of the Board of Directors or an officer of the
Corporation as an employee or agent of the Corporation or as a Director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise (including the heirs, executors, administrators or
estate of such person), shall be indemnified by the Corporation to the full
extent permitted by the General Corporation Law of the State of Delaware or any
other applicable laws as now or hereafter in effect. Without limiting the
generality or effect of the foregoing, the Corporation may enter into one or
more agreements with any person which provide for indemnification greater or
different than that provided in this Article. No amendment to or repeal of this
Article 6 shall apply to or have any effect on the right to indemnity permitted
or authorized hereunder for or with respect to claims asserted before or after
such amendment or repeal arising from acts or omissions occurring in whole or in
part before the effective date of such amendment or repeal.
7. To the fullest extent permitted by the Delaware General
Corporation Law as the same exists or may hereafter be amended, a director of
this Corporation shall not be liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director. No amendment to or
repeal of this Article 7 shall apply to or have any effect on the liability or
alleged liability of any Director of the Corporation for or with respect to any
acts or omissions of such Director occurring prior to such amendment or repeal.
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