EXHIBIT 4.1
RESTATED CERTIFICATE OF INCORPORATION
OF
ATX TELECOMMUNICATIONS SERVICES, INC.
The undersigned, Thomas Gravina, certifies that he is the Co-President,
Co- Chief Operating Officer and Assistant Secretary of ATX Telecommunications
Services, Inc., a corporation organized and existing under the laws of the State
of Delaware (the "Corporation"), and does hereby further certify as follows:
(1) The name of the Corporation is ATX Telecommunications Services, Inc.,
and the original Certificate of Incorporation of the Corporation was
filed with the Secretary of State of the State of Delaware on February
9, 2000.
(2) This Amended and Restated Certificate of Incorporation was duly adopted
in accordance with the provisions of Sections 242 and 245 of the
General Corporation Law of the State of Delaware.
(3) The text of the Restated Certificate of Incorporation of the
Corporation as amended hereby is restated to read in its entirety, as
follows:
ARTICLE I
NAME OF THE CORPORATION
The name of the Corporation is CoreComm Limited (hereinafter, the
"Corporation").
ARTICLE II
ADDRESS OF THE REGISTERED OFFICE
The address of the registered office of the Corporation in the State of
Delaware is 9 East Loockerman Street, Dover, Kent County, Delaware, 19901. The
name of its registered agent at that address is National Registered Agents, Inc.
ARTICLE III
PURPOSE
The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of the State of Delaware as set forth in Title 8 of the Delaware Code (the
"GCL").
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ARTICLE IV
CAPITAL STOCK
AUTHORIZED CAPITAL. The total number of shares of stock which
the Corporation shall have the authority to issue is 205,000,000 shares,
consisting of 200,000,000 shares of common stock, par value $0.01 per share (the
"Common Stock"), and 5,000,000 shares of preferred stock, par value $0.01 per
share (the "Preferred Stock"). The designation, relative rights, preferences and
limitations of the shares of each class are as follows:
4.1 The shares of Preferred Stock may be issued from time
to time in one or more series of any number of shares, provided that the
aggregate number of shares issued and not canceled of any and all such series
shall not exceed the total number of shares of Preferred Stock hereinabove
authorized, and with distinctive serial designations, all as shall hereafter be
stated and expressed in the resolution or resolutions providing for the issue of
such shares of Preferred Stock from time to time adopted by the Board of
Directors pursuant to authority so to do which is hereby vested in the Board of
Directors. Each series of shares of Preferred Stock (a) may have such voting
powers, full or limited, or may be without voting powers; (b) may be subject to
redemption at such time or times and at such prices; (c) may be entitled to
receive dividends (which may be cumulative or non-cumulative) at such rate or
rates, on such conditions and at such times, and payable in preference to, or in
such relation to, the dividends payable on any other class or classes or series
of stock; (d) may have such rights upon the dissolution of, or upon any
distribution of the assets of, the Corporation; (e) may be made convertible into
or exchangeable for, shares of any other class or classes or of any other series
of the same or any other class or classes of shares of the Corporation at such
price or prices or at such rates of exchange and with such adjustments; (f) may
be entitled to the benefit of a sinking fund to be applied to the purchase or
redemption of shares of such series in such amount or amounts; (g) may be
entitled to the benefit of conditions and restrictions upon the creation of
indebtedness of the Corporation or any subsidiary, upon the issue of any
additional shares (including additional shares of such series or of any other
series) and upon the payment of divi dends or the making of other distributions
on, and the purchase, redemption or other acquisition by the Corporation or any
subsidiary of, any outstanding shares of the Corporation and (h) may have such
other relative, participating, optional or other special rights, qualifications,
limitations or restrictions thereof; all as shall be stated in said resolution
or resolutions providing for the issue of such shares of Preferred Stock. Any of
the voting powers, designations, preferences, rights and qualifications,
limitations or restrictions of any such series of Preferred Stock may be made
dependent upon facts ascertainable outside of the resolution or resolutions
providing for the issue of such Preferred Stock adopted by the Board of
Directors pursuant to the authority vested in it by this paragraph 4.1.,
provided that the manner in which such facts shall operate upon the voting
powers, designations, preferences, rights and qualifications, limitations or
restrictions of such
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series of Preferred Stock is clearly and expressly set forth in the resolution
or resolutions providing for the issue of such Preferred Stock. The term "facts"
as used in the immediately preceding sentence shall have the meaning given to it
in Section 151(a) of the GCL. Shares of Preferred Stock of any series that have
been redeemed (whether through the operation of a sinking fund or otherwise) or
that if convertible or exchangeable, have been converted into or exchanged for
shares of any other class or classes shall have the status of authorized and
unissued shares of Preferred Stock of the same series and may be reissued as a
part of the series of which they were originally a part or may be reclassified
and reissued as part of a new series of shares of Preferred Stock to be created
by resolution or resolutions of the Board of Directors or as part of any other
series of shares of Preferred Stock, all subject to the conditions or
restrictions on issuance set forth in the resolution or resolutions adopted by
the Board of Directors providing for the issue of any series of shares of
Preferred Stock.
4.2 Subject to the provisions of any applicable law or of
the By-laws of the Corporation, as from time to time amended, with respect to
the closing of the transfer books or the fixing of a record date for the
determination of stockholders entitled to vote and except as otherwise provided
by law or by the resolution or resolutions providing for the issue of any series
of shares of Preferred Stock, the holders of outstanding shares of Common Stock
shall exclusively possess voting power for the election of directors and for all
other purposes, each holder of record of shares of Common Stock being entitled
to one vote for each share of Common Stock standing in his or her name on the
books of the Corporation. Except as otherwise provided by the resolution or
resolutions providing for the issue of any series of shares of Preferred Stock,
the holders of shares of Common Stock shall be entitled, to the exclusion of the
holders of shares of Preferred Stock of any and all series, to receive such
dividends as from time to time may be declared by the Board of Directors. In the
event of any liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, after payment shall have been made to the holders of
shares of Preferred Stock of the full amount to which they shall be entitled
pursuant to the resolution or resolutions providing for the issue of any series
of shares of Preferred Stock, the holders of shares of Common Stock shall be
entitled, to the exclusion of the holders of shares of Preferred Stock of any
and all series, to share, ratably according to the number of shares of Common
Stock held by them, in all remaining assets of the Corporation available for
distribution to its stockholders.
4.3 Subject to the provisions of this Restated
Certificate of Incorporation and except as otherwise provided by law, the stock
of the Corporation, regardless of class, may be issued for such consideration
and for such corporate purposes as the Board of Directors may from time to time
determine.
4.4 8.5% SENIOR CONVERTIBLE PREFERRED STOCK, SERIES A.
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4.4.1 NUMBER AND DESIGNATION. 50,000 shares of the
Preferred Stock shall be designated as "8.5% Senior Convertible Preferred Stock,
Series A of the Corporation" (the "8.5% Preferred Stock, Series A"), and no
other shares of Preferred Stock shall be designated as 8.5% Preferred Stock,
Series A.
4.4.2 DEFINITIONS. For purposes of the 8.5%
Preferred Stock, Series A, the following terms shall have the meanings
indicated:
"ADDITIONAL PREFERRED" shall have the meaning set
forth in paragraph 4.4.5(a).
"AFFILIATE" means, with respect to any specified
Person, any other Person that directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with such
specified Person. Without limitation of the above, the term "Affiliate" shall,
with respect to the Initial Holder, include Ralph H. Booth II, John L. Booth II,
and any members of their "respective families" within the meaning of SEC Rule
16a-1(e).
"ALTERNATIVE CHANGE OF CONTROL PRICE" shall have the
meaning set forth in paragraph 4.4.9(f)(ii).
"BOARD OF DIRECTORS" shall mean the board of
directors of the Corporation. "Board of Directors" shall also mean the Executive
Committee, if any, of such board of directors or any other committee duly
authorized by such board of directors to perform any of its responsibilities
with respect to the 8.5% Preferred Stock, Series A.
"BOOTH AMERICAN COMPANY" shall mean Booth American
Company, a Michigan corporation.
"BUSINESS DAY" shall mean any day other than a
Saturday, Sunday or a day on which state or federally chartered banking
institutions in New York, New York are not required to be open.
"CHANGE OF CONTROL" shall mean:
(i) the sale, lease or transfer of all
or substantially all of the assets of the Corporation to any "Person"
or "group", within the meaning of Sections 13(d)(3) and 14(d)(2) of the
Exchange Act or any successor provision to either of the foregoing,
including any group acting for the purpose of acquiring, holding or
disposing of securities within the meaning of Rule 13d- 5(b)(1) under
the Exchange Act, other than any Permitted Holder;
(ii) any "Person" or "group", within the
meaning of Sections 13(d) and 14(d)(2) of the Exchange Act or any
successor provision to
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either of the foregoing, including any group acting for the purpose of
acquiring, holding or disposing of securities within the meaning of
Rule 13d-5(b)(1) under the Exchange Act, other than any Permitted
Holder, becomes the "beneficial owner", as defined in Rule 13d-3 under
the Exchange Act, of more than 50% (or more than 25% if neither George
S. Blumenthal or Barclay Knapp is an executive officer of the
Corporation at such time) of the total voting power of all classes of
the voting stock of the Corporation and/or warrants or options to
acquire such voting stock of the Corporation, calculated on a fully
diluted basis, unless, as a result of such transaction, the ultimate
direct or indirect ownership of the Corporation is substantially the
same immediately after such transaction as it was immediately prior to
such transaction;
(iii) without limitation of the provisions
of subparagraphs (i) or (ii) above, the acquisition by NTL Incorporated
(or any Affiliate of NTL Incorporated, which shall not be deemed to
include the Corporation) of (A) all or substantially all of the assets
of the Corporation or (B) "beneficial ownership", as such term is
defined in Rule 13d-3 under the Exchange Act, of more than 50% (or more
than 25% if neither George S. Blumenthal or Barclay Knapp is an
executive officer of the Corporation at such time) of the total voting
power of all classes of the voting stock of the Corporation and/or
warrants or options to acquire such voting stock of the Corporation,
calculated on a fully diluted basis; or
(iv) during any period of two consecutive
years, individuals who at the beginning of such period constitute the
Board of Directors, together with any new directors whose election or
appointment by the Board of Directors or whose nomination for election
by the shareholders of the Corporation was approved by a vote of a
majority of the directors then still in office who were either
directors at the beginning of such period or whose election or
nomination for election was previously so approved, cease for any
reason to constitute a majority of the Board of Directors then in
office.
Notwithstanding anything to the contrary contained in this definition of "Change
of Control", a Change of Control shall be deemed not to have occurred upon the
completion of any (or all) of the following transactions: a wholly-owned
subsidiary of the Corporation merging with and into Voyager.net with Voyager.net
remaining as the surviving corporation in the merger; PROVIDED THAT such
transaction conforms in all material respects to the description thereof
contained in the Initial Predecessor Corporation's Definitive Schedule 14A.
"CHANGE OF CONTROL CONVERSION RATE" shall have the
meaning set forth in paragraph 4.4.9(f).
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"CHANGE OF CONTROL INSTIGATOR" shall have the meaning
set forth in paragraph 4.4.9(f)(iii).
"CHANGE OF CONTROL PRICE" shall have the meaning set
forth in paragraph 4.4.9(f)(ii).
"COMMON STOCK" shall mean (i) the Corporation's
voting common stock, par value $0.01 per share, existing on the date of the
Merger or one or more classes of common stock or other securities (including but
not limited to tracking stock) of the Corporation as such stock may be
constituted or converted from time to time, (ii) the Initial Predecessor
Corporation's voting common stock, par value $0.01 per share, existing on the
Issue Date or one or more classes of common stock or other securities (including
but not limited to tracking stock) of the Initial Predecessor Corporation as
such stock may have been constituted or converted from time to time from the
Issue Date to the effective date of the Domestication Merger, and (iii) the
Second Predecessor Corporation's voting common stock, par value $0.01 per share,
existing on the effective Date of the Domestication Merger or one or more
classes of common stock or other securities (including but not limited to
tracking stock) of the Second Predecessor Corporation as such stock may have
been constituted or converted from time to time from the effective date of the
Domestication Merger to the effective date of the Merger.
"CONSTITUENT PERSON" shall have the meaning set forth
in paragraph 4.4.9(e)(i).
"CONVERSION RATE" shall have the meaning set forth in
paragraph 4.4.9(a).
"CORPORATION" shall mean CoreComm Limited, a Delaware
corporation, until a successor replaces it and thereafter means the successor or
any subsequent successor thereto.
"CURRENT MARKET PRICE" of publicly traded shares of
Common Stock or any other class of capital stock or other security of the
Corporation or any other issuer for any day shall mean the last reported sale
price for such security on the principal exchange or quotation system on which
such security is listed or traded as of the close of the applicable regular
trading hours for such Trading Day, or if such day is not a Trading Day, the
last reported sales price for such security on such principal exchange or
quotation system as of the close of the applicable regular trading hours for the
immediately preceding Trading Day. If the security is not admitted for trading
on any national securities exchange or the Nasdaq National Market, "Current
Market Price" for any day shall mean the average of the last reported closing
bid and asked prices reported by the Nasdaq for such day as furnished by any
member in good standing of the National Association of Securities Dealers, Inc.,
selected from time to time by the Corporation for that purpose or as
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quoted by the National Quotation Bureau Incorporated. In the event that no such
quotation is available for such day, the Current Market Price shall be the
average of the quotations for the last five Trading Days for which a quotation
is available within the last 30 Trading Days prior to such day. In the event
that five such quotations are not available within such 30-Trading Day period,
the Board of Directors shall be entitled to determine the Current Market Price
on the basis of such quotations as it reasonably considers appropriate.
"DEFINITIVE SCHEDULE 14A" shall mean the Initial
Predecessor Corporation's Definitive Schedule 14A, dated August 21, 2000 (as
amended and supplemented after such date), filed by the Initial Predecessor
Corporation with the SEC in connection with the solicitation of the
Corporation's shareholders to approve, among other matters, (A) a wholly-owned
subsidiary of the Corporation (or in the event that the Voyager.net merger is
completed prior to the Merger, a wholly-owned subsidiary of the Second
Predecessor Corporation) merging with and into Voyager.net with Voyager.net
remaining as the surviving corporation in the merger, and (B) the Merger, and
(C) the Domestication Merger.
"DETERMINATION DATE" shall have the meaning set forth
in paragraph 4.4.9(d)(ii).
"DIVIDEND PAYMENT DATE" shall mean September 30,
December 31, March 31 and June 30 of each year, commencing on December 31, 2000;
PROVIDED, HOWEVER, that, if any Dividend Payment Date falls on any day other
than a Business Day, the dividend payment due on such Dividend Payment Date
shall be paid on the Business Day immediately following such Dividend Payment
Date.
"DIVIDEND PERIODS" shall mean quarterly dividend
periods commencing on and including September 30, December 31, March 31 and June
30 of each year and ending on and including the day preceding the first day of
the next succeeding Dividend Period (other than the initial Dividend Period
which shall commence on the Issue Date and end on and include December 31,
2000).
"DOMESTICATION MERGER" means a merger of the Initial
Predecessor Corporation into the Second Predecessor Corporation with the Second
Predecessor Corporation as the surviving corporation in the merger in connection
with the completion of either of the Merger or the Voyager.net merger, as
described in the Definitive Schedule 14A.
"8.5% PREFERRED STOCK, SERIES A" shall have the
meaning set forth in paragraph 4.4.1.
"EXCHANGE ACT" shall mean the Securities Exchange Act
of 1934, as amended, and the rules and regulations promulgated thereunder.
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"EXPIRATION TIME" shall have the meaning set forth in
paragraph 4.4.9(d)(v).
"EXTENDED TOLLING PERIOD" shall have the meaning set
forth in paragraph 4.4.8(d)(ii).
"HOLDCO" shall have the meaning set forth in
paragraph 4.4.9(e)(ii).
"HOLDER" shall have the meaning set forth in Exhibit
4.4A (Article XIV)
"HSR ACT" shall have the meaning set forth in
paragraph 4.4.9(b).
"INITIAL HOLDER" shall mean Booth American Company.
"INITIAL PREDECESSOR CORPORATION" shall mean CoreComm
Limited, a Bermuda corporation.
"ISSUE DATE" shall mean the date on which shares of
8.5% Preferred Stock, Series A, of the Initial Predecessor Corporation were
first issued by the Initial Predecessor Corporation.
"JUNIOR SECURITIES" shall have the meaning set forth
in paragraph 4.4.4(c).
"JUNIOR SECURITIES DISTRIBUTIONS" shall have the
meaning set forth in paragraph 4.4.5(f).
"LIQUIDATION PREFERENCE" shall mean $1,000 per share
of 8.5% Preferred Stock, Series A.
"LIQUIDATION RIGHT" shall mean, for each share of
8.5% Preferred Stock, Series A, the greater of (i) an amount equal to $1,000 per
share, plus an amount equal to all dividends (whether or not declared) accrued
and unpaid thereon, determined in accordance with paragraph 4.4.5(a), to the
date of final distribution to such holders and (ii) the amount that would be
received in liquidation following conversion of a share of 8.5% Preferred Stock,
Series A into Common Stock.
"MANDATORY REDEMPTION DATE" shall have the meaning
set forth in paragraph 4.4.7(b).
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"MANDATORY REDEMPTION OBLIGATION" shall have the
meaning set forth in paragraph 4.4.7(c).
"MERGER" means the merger of the Second Predecessor
Corporation with and into the Corporation, with the Corporation as the surviving
corporation thereof, as described in the Definitive Schedule 14A.
"NASDAQ" means the Nasdaq Stock Market, Inc., the
electronic securities market regulated by the National Association of Securities
Dealers, Inc.
"NASDAQ NATIONAL MARKET" shall have the meaning set
forth in Rule 4200(a)(23) of the rules of the National Association of Securities
Dealers, Inc.
"NON-ELECTING SHARE" shall have the meaning set forth
in paragraph 4.4.9(e)(i).
"NOTICE OF CONVERSION" shall have the meaning set
forth in paragraph 4.4.8(d).
"NYSE" means the New York Stock Exchange.
"OUTSTANDING" when used with reference to shares of
capital stock, shall mean issued shares, excluding shares held by the
Corporation or a subsidiary.
"PARITY SECURITIES" shall have the meaning set forth
in paragraph 4.4.4(b).
"PERMITTED DESIGNEE" shall mean: (i) a spouse or
child of a Permitted Holder, (ii) trusts for the benefit of a Permitted Holder
or a spouse or child of a Permitted Holder, (iii) in the event of the death or
incompetence of a Permitted Holder, his estate, heirs, executor, administrator,
committee or other personal representative, or (iv) any Person so long as a
Permitted Holder owns at least 50% of the voting power of all classes of the
voting stock of such Person.
"PERMITTED HOLDERS" shall mean George S. Blumenthal,
Barclay Knapp and their Permitted Designees.
"PERSON" shall mean any individual, partnership,
association, joint venture, corporation, business, trust, joint stock company,
limited liability company, any unincorporated organization, any other entity, a
"group" of such persons, as that term is defined in Rule 13d-5(b) under the
Exchange Act, or a government or political subdivision thereof.
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"PREFERRED STOCK" shall mean a series or class of
preferred stock, par value $0.01 per share, of the Corporation.
"PURCHASE AGREEMENT" shall mean the purchase
agreement between the Initial Predecessor Corporation and the Initial Holder,
dated as of August 4, 2000, with respect to the sale and purchase of 8.5%
Preferred Shares, Series A, of all the Initial Predecessor Corporation including
all amendments thereto.
"PURCHASE SHARES" shall have the meaning set forth in
paragraph 4.4.9(d)(v).
"RECORD DATE" shall have the meaning set forth in
paragraph 4.4.9(d)(iv).
"RIGHTS" shall have the meaning set forth in
paragraph 4.4.14.
"RIGHTS AGREEMENT" shall have the meaning set forth
in paragraph 4.4.14.
"SEC" shall mean the Securities and Exchange
Commission.
"SECOND PREDECESSOR CORPORATION" shall mean
CoreCommMerger Sub, Inc., a Delaware corporation.
"SECURITIES" shall have the meaning set forth in
paragraph 4.4.9(d)(iii).
"SECURITIES ACT" shall mean the Securities Act of
1933 and the rules and regulations promulgated thereunder.
"SENIOR SECURITIES" shall have the meaning set forth
in paragraph 4.4.4(a).
"SET APART FOR PAYMENT" shall be deemed to include,
without any action other than the following, the recording by the Corporation in
its accounting ledgers of any accounting or bookkeeping entry which indicates,
pursuant to a declaration of dividends or other distribution by the Board of
Directors, the allocation of funds to be so paid on any series or class of
capital stock of the Corporation; PROVIDED, HOWEVER, that, if any funds for any
class or series of Junior Securities or any class or series of Parity Securities
are placed in a separate account of the Corporation or delivered to a
disbursing, paying or other similar agent, then "set apart for payment" with
respect to the 8.5% Preferred Stock, Series A shall mean placing funds in a
separate account of the Corporation or delivering such funds to a disbursing,
paying or other similar agent, as the case may be.
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"SPECIAL CONVERSION PRICE" shall have the meaning set
forth in paragraph 4.4.9(f)(i).
"TOLLING PERIOD" shall have the meaning set forth in
paragraph 4.4.8(d)(i).
"TRADING DAY" shall mean any day on which the
securities in question are traded on the NYSE or, if such securities are not
listed or admitted for trading on the NYSE, on the principal national securities
exchange on which such securities are listed or admitted or, if not listed or
admitted for trading on any national securities exchange, on the Nasdaq National
Market or, if such securities are not quoted thereon, in the applicable
securities market in which the securities are traded.
"25-DAY AVERAGE MARKET PRICE" shall mean, for any
security, the volume-weighted average of the Current Market Prices of that
security for the twenty- five Trading Days immediately preceding the date of
determination.
"VOYAGER.NET" means Voyager.net, Inc., a Delaware
corporation.
4.4.3 CURRENCY. All shares of 8.5% Preferred
Stock, Series A shall be denominated in United States currency, and all payments
and distributions thereon or with respect thereto and redemptions thereof shall
be made in United States currency. All references herein to "$", "dollars",
"(cent)" or "cents" refer to United States currency.
4.4.4 RANK. Any class or series of capital stock
of the Corporation whether now existing or hereafter created shall be deemed to
rank:
(a) prior to the 8.5% Preferred Stock, Series A,
either as to the payment of dividends or as to the distribution of assets upon
liquidation, dissolution or winding up, or both, if the holders of such class or
series shall be entitled by the terms thereof to the receipt of dividends and of
amounts distributable upon liquidation, dissolution or winding up, voluntary or
involuntary, or both, in preference or priority to the holders of 8.5% Preferred
Stock, Series A ("Senior Securities");
(b) on a parity with the 8.5% Preferred Stock,
Series A, either as to the payment of dividends or as to the distribution of
assets upon liquidation, dissolution or winding up, or both, whether or not the
dividend rates, dividend payment dates or redemption or liquidation prices per
share thereof be different from those of the 8.5% Preferred Stock, Series A, if
the holders of the 8.5% Preferred Stock, Series A and of such class of stock or
series shall be entitled by the respective terms thereof to the receipt of
dividends or of amounts distributable upon
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liquidation, dissolution or winding up, voluntary or involuntary, or both, in
proportion to their respective amounts of accrued and unpaid dividends per share
or liquidation preferences, without preference or priority one over the other
and such class of stock or series is not a class of Senior Securities ("Parity
Securities"); and
(c) junior to the 8.5% Preferred Stock, Series
A, either as to the payment of dividends or as to the distribution of assets
upon liquidation, dissolution or winding up, or both, if such stock or series
shall be Common Stock or if the holders of the 8.5% Preferred Stock, Series A
shall be entitled to receipt of dividends, and of amounts distributable upon
liquidation, dissolution or winding up, voluntary or involuntary, or both, in
preference or priority to the holders of shares of such stock or series ("Junior
Securities").
(d) The 8.5% Preferred Stock, Series A and one
or more classes or series of Additional Preferred shall rank on a parity with
any shares of Series X Preferred Stock of the Corporation issued to the
stockholders of the Corporation in connection with the Recapitalization of the
Corporation which occurred immediately prior to the consummation of the Merger,
as described in the Definitive Schedule 14A, as to dividends or of amounts
distributable upon liquidation, dissolution or winding up, voluntary or
involuntary, or both. One or more classes or series of Additional Preferred
shall be Parity Securities; PROVIDED, HOWEVER, that there shall be no issue of
Senior Securities or rights or options exercisable for or convertible into any
Senior Securities, except as approved by the holders of the 8.5% Preferred
Stock, Series A pursuant to paragraph 4.4.12(c).
(e) The respective definitions of Senior
Securities, Junior Securities and Parity Securities shall also include any
rights or options exercisable for or convertible into any of the Senior
Securities, Junior Securities and Parity Securities, as the case may be. The
8.5% Preferred Stock, Series A shall be subject to the creation of Junior
Securities, Parity Securities and Senior Securities as set forth herein.
4.4.5 DIVIDENDS.
(a) Subject to paragraph 4.4.9(b)(ii), the
holders of shares of 8.5% Preferred Stock, Series A shall be entitled to
receive, when, as and if declared by the Board of Directors, out of funds
legally available for the payment of dividends, dividends at the quarterly rate
of $21.25 per share (assuming the Liquidation Preference), subject to adjustment
in accordance with clause (ii)(B) below, payable in (i) shares of Common Stock
(such Common Stock for this purpose to be assigned a value equal to the 25-Day
Average Market Price as of the record date for such Dividend Payment Date);
PROVIDED THAT the Corporation may only pay a quarterly dividend in shares of its
Common Stock if such shares are issued under an effective registration statement
or if a shelf registration statement for the resale of such shares is in effect
on the relevant Dividend Payment Date or (ii) additional
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shares of Preferred Stock of a class or series to be designated by the Board of
Directors having terms substantially identical to the 8.5% Preferred Stock,
Series A, except as follows: (A) the conversion rate of such additional shares
of Preferred Stock shall reflect that the conversion price of the Common Stock
issuable on such Preferred Stock shall be at a 20.0% premium to the 25-Day
Average Market Price as of the record date for such Dividend Payment Date; (B)
the number of shares of such Preferred Stock payable as a dividend on any
Dividend Payment Date shall be equal to the product of (I) 0.02125 multiplied by
(II) the sum of (1) the aggregate Liquidation Preference of the 8.5% Preferred
Stock, Series A on the Issue Date, (2) the aggregate liquidation preference of
the additional shares of Preferred Stock (assuming a $1,000 face amount) paid on
any one or more previous Dividend Payment Dates (such classes or series of
Preferred Stock singularly and collectively, the "Additional Preferred"), and
(3) the aggregate amount of dividends accrued and unpaid on the 8.5% Preferred
Stock, Series A and Additional Preferred (whether or not declared) on any one or
more previous Dividend Payment Dates; and (C) any certificate of designation
filed in connection with the issuance of Additional Preferred shall provide that
the mandatory redemption date for such shares of Additional Preferred shall be
the tenth (10th) anniversary of the Issue Date. All dividends on the 8.5%
Preferred Stock, Series A, in whatever form, shall be payable in arrears
quarterly on each Dividend Payment Date and shall be cumulative from the Issue
Date (except that dividends on Additional Preferred shall accrue from the date
such Additional Preferred is issued or would have been issued in accordance with
this Certificate of Designation if such dividends had been declared), whether or
not in any Dividend Period or Dividend Periods there shall be funds of the
Corporation legally available for the payment of such dividends. Each such
dividend shall be payable to the holders of record of shares of 8.5% Preferred
Stock, Series A, as they appear on the stock records of the Corporation at the
close of business on the record date for such dividend. Upon the declaration of
any such dividend, the Board of Directors shall fix as such record date on the
fifth (5th) Business Day preceding the relevant Dividend Payment Date and shall
give written notice on or prior to the relevant record date of the form of
payment of such dividend. Accrued and unpaid dividends for any past Dividend
Payment Date may be declared and paid at any time, without reference to any
Dividend Payment Date, to holders of record on such record date, not more than
45 days nor less than five Business Days preceding the payment date thereof, as
may be fixed by the Board of Directors.
(b) For the purpose of determining the number of
shares of Additional Preferred to be issued pursuant to paragraph 4.4.5(a), each
such share of Additional Preferred shall be valued at $1,000.00. The applicable
certificate of designation for each class or series of Additional Preferred
shall provide that holders of such shares of Additional Preferred shall be
entitled to receive dividends payable at the rates specified in paragraph
4.4.5(a) and under the terms specified in paragraph 4.4.5.
<PAGE>
14
(c) The Corporation may issue fractional shares
of Additional Preferred on a Dividend Payment Date.
(d) The dividends payable for the initial
Dividend Period, or any other period shorter or longer than a full Dividend
Period, on the 8.5% Preferred Stock, Series A shall accrue daily and be computed
on the basis of a 360-day year consisting of twelve 30-day months. Holders of
shares of 8.5% Preferred Stock, Series A shall not be entitled to receive any
dividends, whether payable in Common Stock or Additional Preferred, which are in
excess of the cumulative dividends provided for herein. No interest, or sum of
money in lieu of interest, shall be payable in respect of any dividend payment
or payments on the 8.5% Preferred Stock, Series A that may be in arrears except
as otherwise provided herein.
(e) So long as any shares of the 8.5% Preferred
Stock, Series A are outstanding, no dividends, except as described in the next
succeeding sentence, shall be declared or paid or set apart for payment on
Parity Securities or Junior Securities, for any period, nor shall any Parity
Securities or Junior Securities be redeemed, purchased or otherwise acquired for
any consideration (or any moneys be paid to or made available for a sinking fund
for the redemption of any such Parity Securities or Junior Securities) by or on
behalf of the Corporation, directly or indirectly (except for conversion into or
exchange into other Parity Securities or Junior Securities, as the case may be)
unless, in each case, (i) full cumulative dividends on all outstanding shares of
the 8.5% Preferred Stock, Series A for all Dividend Periods terminating on or
prior to the date of such redemption, repurchase or other acquisition shall have
been paid or set apart for payment, (ii) sufficient funds shall have been paid
or set apart for the payment of the dividend for the current Dividend Period
with respect to the 8.5% Preferred Stock, Series A, (iii) the Corporation is not
in default with respect to any redemption of shares of 8.5% Preferred Stock,
Series A by the Corporation pursuant to paragraph 4.4.7 and (iv) holders of at
least seventy-five percent (75%) of the aggregate Liquidation Preference of all
shares of issued and outstanding 8.5% Preferred Stock, Series A shall have
consented in writing to such dividend, redemption, purchase or other
acquisition. When dividends are not fully paid in Common Stock or Additional
Preferred, as aforesaid, all dividends declared upon shares of the 8.5%
Preferred Stock, Series A and all dividends declared upon Parity Securities
shall be declared ratably in proportion to the respective amounts of dividends
accumulated and unpaid on the 8.5% Preferred Stock, Series A and accumulated and
unpaid on such Parity Securities.
(f) So long as any shares of the 8.5% Preferred
Stock, Series A are outstanding, no dividends (other than (i) any Rights issued
pursuant to the Rights Agreement and (ii) dividends or distributions paid in
shares of, or options, warrants or rights to subscribe for or purchase shares
of, Junior Securities) shall be declared or paid or set apart for payment or
other distribution declared or made upon Junior Securities, nor shall any Junior
Securities be redeemed, purchased or otherwise
<PAGE>
15
acquired (other than a redemption, purchase, or other acquisition of shares of
Common Stock made for purposes of an employee incentive or benefit plan of the
Corporation or any subsidiary) (all such dividends, distributions, redemptions
or purchases being hereinafter referred to as "Junior Securities Distributions")
for any consideration (or any moneys be paid to or made available for a sinking
fund for the redemption of any shares of any such stock) by or on behalf of the
Corporation, directly or indirectly (except by conversion into or exchange for
Junior Securities), unless, in each case, (A) full cumulative dividends on all
outstanding shares of the 8.5% Preferred Stock, Series A and all Parity
Securities shall have been paid or set apart for payment for all past Dividend
Periods and past dividend periods for such Parity Securities, (B) sufficient
funds shall have been paid or set apart for the payment of the dividend for the
current Dividend Period with respect to the 8.5% Preferred Stock, Series A and
all Parity Securities, (C) the Corporation is not in default with respect to any
redemption of shares of 8.5% Preferred Stock, Series A by the Corporation
pursuant to paragraph 4.4.7 and (D) the Corporation has fully performed its
obligations under paragraph 4.4.7 and (D) holders of at least seventy-five
percent (75%) of the aggregate Liquidation Preference of all shares of issued
and outstanding 8.5% Preferred Stock, Series A shall have consented in writing
to such dividend, redemption, purchase or other acquisition.
4.4.6 LIQUIDATION PREFERENCE.
(a) In the event of any liquidation, dissolution
or winding up of the Corporation, whether voluntary or involuntary, before any
payment or distribution of the assets of the Corporation (whether capital or
surplus) shall be made to or set apart for the holders of Junior Securities, the
holders of the shares of 8.5% Preferred Stock, Series A shall be entitled to
receive the Liquidation Right. If, upon any liquidation, dissolution or winding
up of the Corporation, the assets of the Corporation, or proceeds thereof,
distributable among the holders of the shares of 8.5% Preferred Stock, Series A
shall be insufficient to pay in full the preferential amount aforesaid and
liquidating payments on any Parity Securities, then such assets, or the proceeds
thereof, shall be distributed among the holders of shares of 8.5% Preferred
Stock, Series A and any such Parity Securities ratably in accordance with the
respective amounts that would be payable on such shares of 8.5% Preferred Stock,
Series A and any such Parity Securities if all amounts payable thereon were paid
in full. For the purposes of this paragraph 4.4.6, a Change of Control
transaction (other than a transaction meeting the requirements of subparagraph
(i) of the definition of "Change of Control" set forth in paragraph 4.4.2) shall
not be deemed to be a liquidation, dissolution or winding up, voluntary or
involuntary, of the Corporation.
(b) Subject to the rights of the holders of any
Parity Securities, upon any liquidation, dissolution or winding up of the
Corporation, after payment shall have been made in full to the holders of the
8.5% Preferred Stock, Series A, as provided in this paragraph 4.4.6, any other
series or class or classes of
<PAGE>
16
Junior Securities shall, subject to the respective terms and provisions (if any)
applying thereto, be entitled to receive any and all assets remaining to be paid
or distributed, and the holders of the 8.5% Preferred Stock, Series A shall not
be entitled to share therein.
(c) The liquidation preference with respect to
any Parity Securities shall be as set forth in the certificate of designation in
respect thereof.
4.4.7 REDEMPTION.
(a) On or after the first Business Day following
the earlier to occur of (i) the fifth anniversary of the Issue Date, (ii) the
date on which the 25-Day Average Market Price of the Common Stock shall have
exceeded 150% of the conversion price determined pursuant to paragraph 4.4.9(a)
during the period beginning on the second anniversary of the Issue Date and
ending on the day immediately preceding the third anniversary of the Issue Date,
(iii) the date on which the 25-Day Average Market Price of the Common Stock
shall have exceeded 200% of the conversion price determined pursuant to
paragraph 4.4.9(a) during the period beginning on the third anniversary of the
Issue Date and ending on the day immediately preceding the fourth anniversary of
the Issue Date and (iv) the date on which the 25- Day Average Market Price of
the Common Stock shall have exceeded 250% of the conversion price determined
pursuant to paragraph 4.4.9(a) during the period beginning on the fourth
anniversary of the Issue Date and ending on the day immediately preceding the
fifth anniversary of the Issue Date, the Corporation may redeem at its option
outstanding shares of 8.5% Preferred Stock, Series A, in whole or from time to
time in part, payable at the option of the Corporation in (A) shares of Common
Stock, at a redemption price of $1,000.00 per share, except in the case of a
redemption pursuant to subparagraph (i) of this paragraph, in which case the
redemption price shall be $1,010.00 per share, (B) cash, at a redemption price
of $1,000.00 per share, except in the case of a redemption pursuant to
subparagraph (i) of this paragraph, in which case the redemption price shall be
$1,010.00 per share or (C) a combination of cash and Common Stock, at a
redemption price of $1,000 per share, except in the case of a redemption
pursuant to subparagraph (i) of this paragraph, in which case the redemption
price shall be $1,010.00 per share based on the respective combination of
consideration, together, in each case, with accrued and unpaid dividends
thereon, whether or not declared, to, but excluding, the date fixed for
redemption, without interest. For purposes of determining the number of shares
of Common Stock to be issued pursuant to this paragraph 4.4.7(a), the price per
share of Common Stock shall be the 25-Day Average Market Price as of the date of
the notice of redemption under paragraph 4.4.8(a). The Corporation may elect to
pay all or a portion of the redemption price to any holder of 8.5% Preferred
Stock, Series A, in cash, if the Corporation prior to such cash payment shall
have received the written approval of such holder of the shares of 8.5%
Preferred Stock, Series A, subject to redemption. Any right of the Corporation
to redeem shares of 8.5% Preferred Stock, Series A under the terms of
subparagraph (ii), (iii) or (iv) of this paragraph 4.4.7(a), respectively, shall
terminate on the day immediately preceding the third, fourth and
<PAGE>
17
fifth anniversaries of the Issue Date, respectively. Subject to the terms of
this paragraph 4.4.7, the Corporation shall have the right to redeem shares of
8.5% Preferred Stock, Series A in accordance with this paragraph 4.4.7(a) at any
time on after the first Business Day following the fifth anniversary of the
Issue Date. Any redemption of shares of 8.5% Preferred Stock, Series A occurring
on or after the date set forth in subparagraph (i) of this paragraph 4.4.7(a)
and prior to the Mandatory Redemption Date shall be at a redemption price of
$1,010.00 per share. The per share amounts specified in subparagraphs (ii),
(iii) and (iv) of this paragraph 4.4.7(a) shall be adjusted for any stock
splits, stock dividends, recombinations and similar events occurring on or after
the Issue Date.
(b) If the Corporation shall not have redeemed
all outstanding shares of 8.5% Preferred Stock, Series A pursuant to paragraph
4.4.7(a), prior to the tenth anniversary of the Issue Date (the "Mandatory
Redemption Date"), to the extent the Corporation shall have funds legally
available for such payment, the Corporation shall redeem all outstanding shares
of 8.5% Preferred Stock, Series A, at a redemption price of $1,000.00 per share,
payable at the option of the Corporation in shares of Common Stock, cash or a
combination thereof, together with accrued and unpaid dividends thereon, whether
or not declared, to, but excluding, the Mandatory Redemption Date, without
interest. For purposes of determining the number of shares of Common Stock to be
issued pursuant to this paragraph 4.4.7(b), the price per share of Common Stock
shall be the 25-Day Average Market Price as of the Mandatory Redemption Date.
The Corporation may elect to pay all or a portion of the redemption price in
cash to any holder of shares of 8.5% Preferred Stock, Series A if the
Corporation prior to such cash payment shall have received the written approval
of such holder of the shares of 8.5% Preferred Stock, Series A, subject to
redemption.
(c) If the Corporation is unable or shall fail
to discharge its obligation to redeem all outstanding shares of 8.5% Preferred
Stock, Series A pursuant to paragraph 4.4.7(b) (a "Mandatory Redemption
Obligation"), the Mandatory Redemption Obligation shall be discharged as soon as
the Corporation is able to discharge such Mandatory Redemption Obligation. If
and so long as the Mandatory Redemption Obligation with respect to the 8.5%
Preferred Stock, Series A shall not be fully discharged, the Corporation shall
not (i) directly or indirectly, redeem, purchase, or otherwise acquire any
Parity Security or discharge any mandatory or optional redemption, sinking fund
or other similar obligation in respect of any Parity Securities (except in
connection with a redemption, sinking fund or other similar obligation to be
satisfied pro rata with the 8.5% Preferred Stock, Series A) or (ii) declare or
make any Junior Securities Distribution (other than dividends or distributions
paid in shares of, or options, warrants or rights to subscribe for or purchase
shares of, Junior Securities), or, directly or indirectly, discharge any
mandatory or optional redemption, sinking fund or other similar obligation in
respect of the Junior Securities. Dividends shall continue to accrue on all
issued and outstanding shares of 8.5% Preferred Stock, Series A, subsequent to
the Mandatory
<PAGE>
18
Redemption Date, as provided in paragraph 4.4.5(a), until all shares of 8.5%
Preferred Stock, Series A have been redeemed in accordance with paragraphs 4.4.7
and 4.4.8.
(d) Upon any redemption by the Corporation of
shares of 8.5% Preferred Stock, Series A under paragraph 4.4.7(a), it shall be a
requirement that the Corporation shall pay the redemption price and any accrued
and unpaid dividends in arrears (in accordance with paragraph 4.4.5(a)) to, but
excluding, the applicable redemption date, without interest. Under no
circumstances may the Corporation complete a redemption under paragraph 4.4.7(a)
without including in the redemption price the price of redeeming accrued and
unpaid dividends.
(e) For purposes of paragraph 4.4.5(a) only,
unless full cumulative dividends (whether or not declared) on all outstanding
shares of 8.5% Preferred Stock, Series A and any Parity Securities shall have
been paid or contemporaneously are declared and paid or set apart for payment
for all Dividend Periods terminating on or prior to the applicable redemption
date and written notice has been given in accordance with paragraph 4.4.8, none
of the shares of 8.5% Preferred Stock, Series A shall be redeemed, and no sum
shall be set aside for such redemption, unless shares of 8.5% Preferred Stock,
Series A are redeemed pro rata with the Parity Securities and notice has
previously been given in accordance with paragraph 4.4.8.
4.4.8 PROCEDURE FOR REDEMPTION.
(a) If the Corporation shall redeem shares of
8.5% Preferred Stock, Series A pursuant to paragraph 4.4.8(a), notice of such
redemption shall be given by certified mail, return receipt requested, postage
prepaid, mailed not less than 30 days prior to the redemption date, to each
holder of record of the shares to be redeemed at such holder's address as the
same appears on the stock register of the Corporation and confirmed by facsimile
transmission on the date of such notice to each holder of record if the
Corporation has been furnished with such facsimile address by the holder(s);
PROVIDED, HOWEVER, that neither the failure to give such notice nor confirmation
nor any defect therein or in the mailing thereof, to any particular holder,
shall affect the sufficiency of the notice or the validity of the proceedings
for redemption with respect to any other holder. Any notice that was mailed in
the manner herein provided and confirmed by facsimile transmission on the date
of such notice if the Corporation has been furnished with such facsimile address
by such holder shall be conclusively presumed to have been duly given on the
date mailed whether or not the holder receives the notice. Each such notice
shall state: (i) the redemption date; (ii) the number of shares of 8.5%
Preferred Stock, Series A to be redeemed and, if fewer than all the shares held
by such holder are to be redeemed, the number of shares to be redeemed from such
holder; (iii) the amount payable, whether such amount shall be paid in Common
Stock or in cash (subject to the consent of the applicable holder of shares of
8.5% Preferred Stock, Series A), or
<PAGE>
19
in a combination of Common Stock and cash and, if the payment is to be made in
Common Stock, an explanation of the determination of the amount to be paid; (iv)
the place or places where certificates for such shares are to be surrendered;
and (v) that dividends on the shares to be redeemed will accrue up to, but
excluding such redemption date, without interest, except as otherwise provided
herein.
(b) If notice has been mailed as aforesaid and
confirmed by facsimile transmission on the date of such notice, from and after
the redemption date (unless default shall be made by the Corporation in
providing for the payment of the redemption price of the shares called for
redemption and dividends accrued and unpaid thereon, if any), (i) except as
otherwise provided herein, dividends on the shares of 8.5% Preferred Stock,
Series A so called for redemption shall cease to accrue, (ii) such shares shall
no longer be deemed to be outstanding and (iii) all rights of the holders
thereof as holders of 8.5% Preferred Stock, Series A shall cease, except the
right to receive from the Corporation the redemption price without interest
thereon, upon surrender and endorsement of their certificates if so required,
and to receive all accrued and unpaid dividends thereon, if any.
(c) Upon surrender in accordance with notice
given pursuant to this paragraph 4.4.8 of the certificates for any shares so
redeemed (properly endorsed or assigned for transfer, if the Board of Directors
shall so require and the notice shall so state), such shares shall be redeemed
by the Corporation at the redemption price aforesaid, plus accrued and unpaid
dividends thereon, if any. If fewer than all the outstanding shares of 8.5%
Preferred Stock, Series A are to be redeemed, the number of shares to be
redeemed shall be determined by the Board of Directors and the shares to be
redeemed shall be selected pro rata (with any fractional shares being rounded to
the nearest whole share with "5" being rounded upward). In case fewer than all
the shares represented by any such certificate are redeemed, a new certificate
shall be issued, representing the surrendered shares without cost to the holder
thereof. No fractional shares or scrip representing fractions of shares of
Common Stock shall be issued upon conversion of the 8.5% Preferred Stock, Series
A. Instead of any fractional interest in a share of Common Stock that would
otherwise be deliverable upon the redemption of a share of 8.5% Preferred Stock,
Series A, the Corporation shall round upward to determine the whole number of
shares of Common Stock issuable upon redemption of the 8.5% Preferred Stock,
Series A. If more than one share of 8.5% Preferred Stock, Series A shall be
surrendered for redemption at one time by the same holder, the number of whole
shares of Common Stock issuable upon redemption thereof shall be computed on the
basis of the aggregate number of shares of 8.5% Preferred Stock, Series A
surrendered for redemption by such holder.
(d) (i) Notwithstanding any other
provision of this Certificate of Designation, any redemption initiated by the
Corporation with respect to shares of 8.5% Preferred Stock, Series A pursuant to
paragraph 4.4.8(a) shall be suspended for one period of up to ninety (90) days
(from and after the applicable
<PAGE>
20
scheduled redemption date designated by the Corporation) per redemption
initiated by the Corporation (the "Tolling Period") solely for the purpose of
any holder of shares of 8.5% Preferred Stock, Series A satisfying any applicable
legal and regulatory approvals required to effect conversion of the 8.5%
Preferred Stock, Series A, and during such period any redemption initiated by
the Corporation with respect to shares of 8.5% Preferred Stock, Series A shall
have no force and effect, as to any shares of 8.5% Preferred Stock, Series A,
which such holder shall elect to convert to Common Stock pursuant to paragraph
4.4.9 by delivery to the Corporation of a notice of election to convert in the
form of Exhibit 4.4A (Article XIV) and signed, specifying the number of shares
to be converted (the "Notice of Conversion") at least five (5) Business Days
prior to the applicable redemption date designated by the Corporation by notice
of redemption to such holder pursuant to paragraph 4.4.8(a).
(ii) The Corporation and the Initial
Holder of shares of 8.5% Preferred Stock, Series A (and any subsequent holders
of shares of 8.5% Preferred Stock, Series A as a condition to their receipt of
shares of 8.5% Preferred Stock, Series A by purchase, set-off, gift, bequeath or
other manner of transfer, whether or not for value) attempting to effect
conversion by the holder of shares of 8.5% Preferred Stock, Series A subsequent
to the Corporation taking action to redeem such shares pursuant to paragraph
4.4.8(a) mutually covenant and agree to promptly make any and all filings
(including requests for additional information), and appearances, and to take
any and all other actions necessary to secure legal and regulatory approval to
effect conversion of the 8.5% Preferred Stock, Series A. In the event that at
the expiration of the Tolling Period any applicable legal and regulatory
approvals required to effect conversion of the 8.5% Preferred Stock, Series A
have not been secured as a direct result of the Corporation not complying with
its obligations in the first sentence of this subparagraph (ii), the Tolling
Period shall be extended (the "Extended Tolling Period) (through no action on
the part of the holder of such shares of 8.5% Preferred Stock, Series A) until
such applicable legal and regulatory approvals shall have been obtained, or
until it shall have been finally determined by the applicable authority that any
such legal and regulatory approval shall not be available; but such Extended
Tolling Period shall in no event extend beyond sixty (60) days after the
expiration of the Tolling Period unless the Corporation fails or refuses during
such Extended Tolling Period to comply with its obligations under the first
sentence of this subparagraph (ii). The Tolling Period or Extended Tolling
Period (as applicable) shall cease in the event that the holder of shares of
8.5% Preferred Stock, Series A has not complied with its obligations in the
first sentence of this subparagraph (ii) after written notice of such
non-compliance by the Corporation to such holder by certified mail return
receipt requested, and failure by such holder to come into compliance with its
obligations under the first sentence of this subparagraph (ii) within ten (10)
Business Days after the date of such notice. In the event the holder shall not
within such period have come into full compliance with its obligations under the
first sentence of this subparagraph (ii), the Corporation shall be permitted to
immediately effect such redemption.
<PAGE>
21
4.4.9 CONVERSION.
(a) Subject to and upon compliance with the
provisions of this paragraph 4.4.9, a holder of shares of 8.5% Preferred Stock,
Series A shall have the right, at any time and from time to time, at such
holder's option, to convert any or all outstanding shares of 8.5% Preferred
Stock, Series A held by such holder into validly issued, fully paid and
non-assessable shares of Common Stock or any other shares of capital stock or
other securities of the Corporation or a successor corporation into which such
Common Stock (or such other shares or securities) may thereafter be changed or
reclassified by surrendering such shares to be converted, such surrender to be
made in the manner provided in paragraph 4.4.9(b). The number of shares of
Common Stock initially deliverable upon conversion of each share of 8.5%
Preferred Stock, Series A shall be equal to the quotient of the Liquidation
Preference divided by 16.50; PROVIDED, HOWEVER, that if the 25-Day Average
Market Price of the Common Stock for the period up to and including September
14, 2000 shall be less than or equal to $13.75, then the number of shares of
Common Stock deliverable upon conversion of each share of 8.5% Preferred Stock,
Series A shall be the quotient of the Liquidation Preference of such share
divided by 120% of the 25-Day Average Market Price of the Common Stock up to and
including September 14, 2000. To the extent that there exist any accrued and
unpaid dividends attributable to the shares of 8.5% Preferred Stock, Series A,
for which a holder has sought conversion, at the time of such conversion the
number of shares of Common Stock to be delivered by the Corporation shall be
increased in an amount equal to the quotient of the Liquidation Preference of
that number of shares of Additional Preferred which the accrued and unpaid
dividends as of the date of conversion would become if paid in the form of
Additional Preferred on the conversion date divided by 120% of the 25-Day
Average Market Price of the Common Stock as of: (a) the immediately preceding
Dividend Payment Date with respect to accrued and unpaid dividends that have
accrued since the immediately preceding Dividend Payment Date; or (b) the
Dividend Payment Date on which such accrued and unpaid dividends would have been
paid. In addition to the foregoing, to the extent a holder of shares of
Additional Preferred elects to convert such shares, the certificate of
designation for such shares of Additional Preferred shall provide that, upon
conversion, the number of shares of Common Stock deliverable upon conversion of
each share of Additional Preferred, shall be equal to the quotient of the
Liquidation Preference of such shares divided by 120% of the 25-Day Average
Market Price of Common Stock as of the record date for the Dividend Payment Date
on which the Additional Preferred was issued. In addition, the Certificate of
Designation for such shares shall provide for identical treatment of accrued and
unpaid dividends as is provided for herein. The applicable conversion rate
provided above, as adjusted, is hereinafter referred to as the "Conversion
Rate". The Conversion Rate is subject to adjustment from time to time pursuant
to paragraph 4.4.9(d). Subject to paragraph 4.4.8(d), the right to convert
shares called for redemption pursuant to paragraph 4.4.7(a) shall terminate at
the close of business on the date immediately preceding the date fixed for such
redemption unless the Corporation shall default in making payment of the amount
<PAGE>
22
payable upon such redemption, including accrued and unpaid dividends thereon, if
any, in which case such right of conversion shall be reinstated. Upon
conversion, any accrued and unpaid dividends, if any, on the 8.5% Preferred
Stock, Series A up to, but excluding, the date of conversion shall be paid to
the holder thereof in accordance with the provisions of paragraph 4.4.5.
(b) (i) In order to exercise the conversion
privilege, the holder of each share of 8.5% Preferred Stock, Series A or
Additional Preferred to be converted shall surrender the certificate
representing such share, duly endorsed or assigned to the Corporation or in
blank, at the office of the Corporation, or to any transfer agent of the
Corporation previously designated by the Corporation to the holders of the 8.5%
Preferred Stock, Series A or Additional Preferred for such purposes, with the
Notice of Conversion. The Notice of Conversion shall state that the holder has
satisfied or will have satisfied prior to the issuance of shares of Common Stock
upon conversion of the 8.5% Preferred Stock, Series A or Additional Preferred
any and all legal or regulatory requirements for conversion, including
compliance with the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended (the "HSR Act"). The Corporation shall use its reasonable best efforts
in cooperating with such holder to obtain such legal or regulatory approvals to
the extent its cooperation is necessary. Such notice shall also state the name
or names (with address and social security or other taxpayer identification
number, if applicable) in which the certificate or certificates for Common Stock
are to be issued. Unless the shares issuable on conversion are to be issued in
the same name as the name in which such share of 8.5% Preferred Stock, Series A
or Additional Preferred is registered, each share surrendered for conversion
shall be accompanied by instruments of transfer, in form satisfactory to the
Corporation, duly executed by the holder or the holder's duly authorized
attorney and an amount sufficient to pay any transfer or similar tax (or
evidence reasonably satisfactory to the Corporation demonstrating that such
taxes have been paid or satisfied in full). All certificates representing shares
of 8.5% Preferred Stock, Series A or Additional Preferred surrendered for
conversion shall be canceled by the Corporation or the transfer agent and shall
not thereafter be reissued.
(ii) Subject to the last sentence of
paragraph 4.4.9(a), holders of shares of 8.5% Preferred Stock, Series A or
Additional Preferred at the close of business on a record date or a Dividend
Payment Date shall not be entitled to receive the dividend payable on such
shares on the corresponding Dividend Payment Date if such holder shall have
surrendered for conversion such shares at any time following the preceding
Dividend Payment Date and prior to such Dividend Payment Date.
(iii) As promptly as reasonably practicable
after the surrender by a holder of the certificates for shares of 8.5% Preferred
Stock, Series A or Additional Preferred, the Corporation shall issue and shall
deliver to such holder, or on the holder's written order, a certificate or
certificates (which certificate or
<PAGE>
23
certificates shall have the legend set forth in paragraph 4.4.12(b)) for the
whole number of duly authorized, validly issued, fully paid and non-assessable
shares of Common Stock issuable upon the conversion of such shares in accordance
with the provisions of this paragraph 4.4.9, and any fractional interest in
respect of a share of Common Stock arising on such conversion shall be settled
as provided in paragraph 4.4.9(c). Upon conversion of only a portion of the
shares of 8.5% Preferred Stock, Series A or Additional Preferred represented by
any certificate, a new certificate shall be issued representing the unconverted
portion of the certificate so surrendered without cost to the holder thereof.
Upon the surrender of certificates representing shares of 8.5% Preferred Stock,
Series A or Additional Preferred to be converted, such shares shall no longer be
deemed to be outstanding and all rights of a holder with respect to such shares
so surrendered shall immediately terminate except the right to receive the
Common Stock and other amounts payable pursuant to this paragraph 4.4.9.
(c) (i) No fractional shares or scrip
representing fractions of shares of Common Stock shall be issued upon conversion
of the 8.5% Preferred Stock, Series A or Additional Preferred. Instead of any
fractional interest in a share of Common Stock that would otherwise be
deliverable upon the conversion of a share of 8.5% Preferred Stock, Series A or
Additional Preferred, the Corporation shall round upward to determine the whole
number of shares of Common Stock issuable upon conversion of the 8.5% Preferred
Stock, Series A or Additional Preferred. If more than one share of 8.5%
Preferred Stock, Series A or Additional Preferred shall be surrendered for
conversion at one time by the same holder, the number of whole shares of Common
Stock issuable upon conversion thereof shall be computed on the basis of the
aggregate number of shares of 8.5% Preferred Stock, Series A or Additional
Preferred surrendered for conversion by such holder.
(ii) Each conversion shall be deemed to have
been effected immediately prior to the close of business on the date on which
the certificates for shares of 8.5% Preferred Stock, Series A or Additional
Preferred shall have been surrendered and such notice received by the
Corporation as aforesaid, and the Person or Persons in whose name or names any
certificate or certificates for shares of Common Stock shall be issuable upon
such conversion shall be deemed to have become the holder or holders of record
of the shares of Common Stock represented thereby at such time on such date and
such conversion shall be into a number of shares of Common Stock as determined
in accordance with paragraph 4.4.9(a), unless the stock transfer books of the
Corporation shall be closed on that date, in which event such Person or Persons
shall be deemed to have become such holder or holders of record at the close of
business on the next succeeding day on which such stock transfer books are open,
but such conversion shall be based upon the applicable Conversion Rate in effect
on the date upon which such shares shall have been surrendered and such notice
received by the Corporation.
<PAGE>
24
(d) The Conversion Rate shall be subject to
adjustment from time to time as follows:
(i) If, the Initial Predecessor Corporation,
during the period from the Issue Date through the effective time of the
Domestication Merger, the Second Predecessor Corporation, during the period from
the effective time of the Domestication Merger through the effective time of the
Merger, or the Corporation, following the effective time of the Merger, shall
(A) declare a dividend or make a distribution on its Common Stock in shares of
its Common Stock, (B) subdivide its outstanding Common Stock into a greater
number of shares, (C) combine its outstanding Common Stock into a smaller number
of shares or (D) effect any reclassification of its outstanding Common Stock,
including a reclassification into one or more classes of Common Stock or other
securities (including, tracking stock), the Conversion Rate in effect on the
record date for such dividend or distribution, or the effective date of such
subdivision, combination or reclassification, as the case may be, shall be
proportionately adjusted so that the holder of any share of 8.5% Preferred
Stock, Series A thereafter surrendered for conversion shall be entitled to
receive the number and kind of shares of Common Stock (or other securities) that
such holder would have owned or have been entitled to receive after the
happening of any of the events described above had such share of 8.5% Preferred
Stock, Series A been converted immediately prior to the record date in the case
of a dividend or distribution or the effective date in the case of a
subdivision, combination or reclassification. An adjustment made pursuant to
this subparagraph (i) shall become effective immediately after the opening of
business on the Business Day next following the record date (except as provided
in paragraph 4.4.9(h)) in the case of a dividend or distribution and shall
become effective immediately after the opening of business on the Business Day
next following the effective date in the case of a subdivision, combination or
reclassification. Adjustments in accordance with this paragraph 4.4.9(d)(i)
shall be made whenever any event listed above shall occur.
(ii) If, the Initial Predecessor
Corporation, during the period from the Issue Date through the effective time of
the Domestication Merger, the Second Predecessor Corporation, during the period
from the effective time of the Domestication Merger through the effective time
of the Merger, or the Corporation, following the effective time of the Merger,
shall fix a record date for the issuance of rights or warrants (in each case,
other than any Rights issued pursuant to the Rights Agreement) to all holders of
Common Stock entitling them (for a period expiring within 45 days after such
record date) to subscribe for or purchase Common Stock (or securities
convertible or exercisable into Common Stock) at a price per share (or, in the
case of a right or warrant to purchase securities convertible or exercisable
into Common Stock, having an effective exercise price per share of Common Stock,
computed on the basis of the maximum number of shares of Common Stock issuable
upon conversion or exercise of such convertible or exercisable securities, as
the case may be, plus the amount of additional consideration payable, if any, to
receive one share of Common Stock upon conversion or exercise of such
securities, as the case
<PAGE>
25
may be) less than the 25-Day Average Market Price on the date on which such
issuance was declared or otherwise announced by the Corporation (the
"Determination Date"), then the Conversion Rate in effect at the opening of
business on the Business Day next following such record date shall be adjusted
so that the holder of each share of 8.5% Preferred Stock, Series A shall be
entitled to receive, upon the conversion thereof, the number of shares of Common
Stock determined by multiplying (I) the Conversion Rate in effect immediately
prior to such record date by (II) a fraction, the numerator of which shall be
the sum of (A) the number of shares of Common Stock outstanding on the close of
business on the Determination Date and (B) the number of additional shares of
Common Stock offered for subscription or purchase pursuant to such rights or
warrants (or in the case of a right or warrant to purchase securities
convertible or exercisable into Common Stock, the aggregate number of additional
shares of Common Stock into which the convertible or exercisable securities so
offered are initially convertible or exercisable), and the denominator of which
shall be the sum of (A) the number of shares of Common Stock outstanding on the
close of business on the Determination Date and (B) the number of shares that
the aggregate proceeds to the Corporation from the exercise of such rights or
warrants for Common Stock would purchase at such 25-Day Average Market Price on
such date (or, in the case of a right of warrant to purchase securities
convertible or exercisable into Common Stock, the number of shares of Common
Stock obtained by dividing the aggregate exercise price of such rights or
warrants for the maximum number of shares of Common Stock issuable upon
conversion or exercise of such convertible or exercisable securities, plus the
aggregate amount of additional consideration payable, if any, to convert or
exercise such securities into Common Stock, by such 25-Day Average Market
Price). Such adjustment shall become effective immediately after the opening of
business on the Business Day next following such record date (except as provided
in paragraph 4.4.9(h)). Such adjustment shall be made successively whenever such
a record date is fixed. In the event that after fixing a record date such rights
or warrants are not so issued, the Conversion Rate shall be readjusted to the
Conversion Rate which would then be in effect if such record date had not been
fixed. In determining whether any rights or warrants entitle the holders of
Common Stock to subscribe for or purchase shares of Common Stock at less than
such 25-Day Average Market Price, there shall be taken into account any
consideration received by the Corporation upon issuance and upon exercise of
such rights or warrants, the value of such consideration, if other than cash, to
be determined by the Board of Directors in good faith. If any rights or warrants
referred to in this subparagraph (ii) shall expire unexercised after the same
shall have been distributed or issued by the Corporation (or, in the case of
rights or warrants to purchase securities convertible or exercisable into Common
Stock once exercised, the conversion or exercise right of such securities shall
expire), the Conversion Rate shall be readjusted at the time of such expiration
to the Conversion Rate that would have been in effect if no adjustment had been
made on account of the distribution or issuance of such expired rights or
warrants.
(iii) If the Corporation shall fix a record
date for the making of a distribution to all holders of its Common Stock of
evidences of its
<PAGE>
26
indebtedness, shares of its capital stock or assets (excluding regular cash
dividends or distributions declared in the ordinary course by the Board of
Directors and dividends payable in Common Stock for which an adjustment is made
pursuant to paragraph 4.4.9(d)(i)) or rights or warrants (in each case, other
than the Rights issued pursuant to the Rights Agreement) to subscribe for or
purchase any of its securities (excluding those rights and warrants issued to
all holders of Common Stock entitling them (for a period expiring within 45 days
after such record date) to subscribe for or purchase Common Stock or securities
convertible or exercisable into shares of Common Stock, which rights and
warrants are referred to in and treated under subparagraph (ii) above) (any of
the foregoing being hereinafter in this subparagraph (iii) called the
"Securities"), then in each such case the Conversion Rate shall be adjusted so
that the holder of each share of 8.5% Preferred Stock, Series A shall be
entitled to receive, upon the conversion thereof, the number of shares of Common
Stock determined by multiplying (I) the Conversion Rate in effect immediately
prior to the close of business on such record date by (II) a fraction, the
numerator of which shall be the 25-Day Average Market Price per share of the
Common Stock on such record date, and the denominator of which shall be the
25-Day Average Market Price per share of the Common Stock on such record date
less the then-fair market value (as determined by the Board of Directors in good
faith, whose determinations shall be conclusive) of the portion of the assets,
shares of its capital stock or evidences of indebtedness so distributed or of
such rights or warrants applicable to one share of Common Stock. Such adjustment
shall be made successively whenever such a record date is fixed. In the event
that after fixing a record date such distribution is not so made, the Conversion
Rate shall be readjusted to the Conversion Rate which would then be in effect if
such record date had not been fixed. Such adjustment shall become effective
immediately at the opening of business on the Business Day next following
(except as provided in paragraph 4.4.9(h)) the record date for the determination
of shareholders entitled to receive such distribution. For the purposes of this
subparagraph (iii), the distribution of a Security, which is distributed not
only to the holders of the Common Stock on the date fixed for the determination
of shareholders entitled to such distribution of such Security, but also is
distributed with each share of Common Stock delivered to a Person converting a
share of 8.5% Preferred Stock, Series A after such determination date, shall not
require an adjustment of the Conversion Rate pursuant to this subparagraph
(iii); PROVIDED, HOWEVER, that on the date, if any, on which a Person converting
a share of 8.5% Preferred Stock, Series A would no longer be entitled to receive
such Security with a share of Common Stock (other than as a result of the
termination of all such Securities), a distribution of such Securities shall be
deemed to have occurred and the Conversion Rate shall be adjusted as provided in
this subparagraph (iii) (and such day shall be deemed to be "the date fixed for
the determination of shareholders entitled to receive such distribution" and
"the record date" within the meaning of the three preceding sentences). If any
rights or warrants referred to in this subparagraph (iii) shall expire
unexercised after the same shall have been distributed or issued by the
Corporation (or, in the case of rights or warrants to purchase securities
convertible or exercisable into Common Stock once exercised, the conversion
right of such securities shall expire), the Conversion Rate shall be
<PAGE>
27
readjusted at the time of such expiration to the Conversion Rate that would have
been in effect if no adjustment had been made on account of the distribution or
issuance of such expired rights or warrants.
(iv) In case the Corporation shall, by
dividend or otherwise, distribute to all holders of its Common Stock cash in the
amount per share that, together with the aggregate of the per share amounts of
any other cash distributions to all holders of its Common Stock made within the
12 months preceding the date of payment of such distribution and in respect of
which no adjustment pursuant to this paragraph (iv) has been made exceeds 5.0%
of the 25-Day Average Market Price immediately prior to the date of declaration
of such dividend or distribution (excluding any dividend or distribution in
connection with the liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, and any cash that is distributed upon a
merger, consolidation or other transaction for which an adjustment pursuant to
paragraph 4.4.9(e) is made), then, in such case, the Conversion Rate shall be
adjusted so that the same shall equal the rate determined by multiplying (I) the
Conversion Rate in effect immediately prior to the close of business on the
Record Date for the cash dividend or distribution by (II) a fraction, the
numerator of which shall be the Current Market Price of a share of the Common
Stock on the Record Date and the denominator shall be such Current Market Price
less the per share amount of cash so distributed during the 12-month period
applicable to one share of Common Stock, such adjustment to be effective
immediately prior to the opening of business on the Business Day following the
Record Date; PROVIDED, HOWEVER, that in the event the denominator of the
foregoing fraction is zero or negative, in lieu of the foregoing adjustment,
adequate provision shall be made so that each holder of 8.5% Preferred Stock,
Series A shall have the right to receive upon conversion, in addition to the
shares of Common Stock to which the holder is entitled, the amount of cash such
holder would have received had such holder converted each share of 8.5%
Preferred Stock, Series A at the beginning of the 12-month period. In the event
that such dividend or distribution is not so paid or made, the Conversion Rate
shall again be adjusted to be the Conversion Rate which would then be in effect
if such dividend or distribution had not been declared. Notwithstanding the
foregoing, if any adjustment is required to be made as set forth in this
paragraph 4.4.9(d)(iv), the calculation of any such adjustment shall include the
amount of the quarterly cash dividends paid during the 12-month reference period
only to the extent such dividends exceed on an aggregate basis the regular
quarterly cash dividends paid during the 12 months preceding the 12- month
reference period. For purposes of this paragraph 4.4.9(d)(iv), "Record Date"
shall mean, with respect to any dividend or distribution in which the holders of
Common Stock have the right to receive cash, the date fixed for determination of
shareholders entitled to receive such cash. In the event that at any time cash
distributions to holders of Common Stock are not paid equally on all series of
Common Stock, the provisions of this paragraph 4.4.9(d)(iv) will apply to any
cash dividend or cash distribution on any series of Common Stock otherwise
meeting the requirements of this paragraph, and shall be deemed amended
<PAGE>
28
to the extent necessary so that any adjustment required will be made on the
basis of the cash dividend or cash distribution made on any such series.
(v) In case of the consummation of a tender
or exchange offer (other than an odd-lot tender offer) made by the Corporation
or any subsidiary of the Corporation for all or any portion of the outstanding
shares of Common Stock to the extent that the cash and fair market value (as
determined in good faith by the Board of Directors, whose determination shall be
conclusive and shall be described in a resolution of the Board of Directors) of
any other consideration included in such payment per share of Common Stock at
the last time (the "Expiration Time") tenders or exchanges may be made pursuant
to such tender or exchange offer (as amended) exceed by more than 5.0%, with any
smaller excess being disregarded in computing the adjustment to the Conversion
Rate provided in this paragraph 4.4.9(d)(v), the first reported sale price per
share of the Common Stock on the Trading Day next succeeding the Expiration
Time, then the Conversion Rate shall be adjusted so that the same shall equal
the rate determined by multiplying the Conversion Rate in effect immediately
prior to the Expiration Time by a fraction the numerator of which shall be the
sum of (I) the fair market value (determined as aforesaid) of the aggregate
consideration payable to shareholders based on the acceptance (up to any maximum
specified in the terms of the tender or exchange offer) of all shares validly
tendered or exchanged and not withdrawn as of the Expiration Time (the shares
deemed so accepted, up to any such maximum, being referred to as the "Purchase
Shares") and (II) the product of the number of shares of Common Stock
outstanding (less any Purchase Shares) on the Expiration Time and the first
reported sale price of the Common Stock on the Trading Day next succeeding the
Expiration Time, and the denominator of which shall be the number of shares of
Common Stock outstanding (including any tendered or exchanged shares) on the
Expiration Time multiplied by the first reported sale price of the Common Stock
on the Trading Day next succeeding the Expiration Time, such adjustment to
become effective immediately prior to the opening of business on the day
following the Expiration Time.
(vi) No adjustment in the Conversion Rate
shall be required unless such adjustment would require a cumulative increase or
decrease of at least 1.0% in the Conversion Rate; PROVIDED, HOWEVER, that any
adjustments that by reason of this subparagraph (vi) are not required to be made
shall be carried forward and taken into account in any subsequent adjustment
until made; and PROVIDED FURTHER that any adjustment shall be required and made
in accordance with the provisions of this paragraph 4.4.9 (other than this
subparagraph (vi)) not later than such time as may be required in order to
preserve the tax-free nature of a distribution for United States income tax
purposes to the holders of shares of 8.5% Preferred Stock, Series A or Common
Stock. Notwithstanding any other provisions of this paragraph 4.4.9, the
Corporation shall not be required to make any adjustment of the Conversion Rate
for the issuance of any shares of Common Stock pursuant to any plan providing
for the reinvestment of dividends or interest payable on securities of the
Corporation and the investment of additional optional amounts in shares of
Common Stock under such
<PAGE>
29
plan. All calculations under this paragraph 4.4.9 shall be made to the nearest
cent or rounded upward to the nearest share, as the case may be. The Conversion
Rate and any adjustments thereto shall be calculated to the fifth decimal point
(with the sixth decimal point rounded upward, when applicable). Anything in this
paragraph 4.4.9(d) to the contrary notwithstanding, the Corporation shall be
entitled, to the extent permitted by law, to make such adjustments in the
Conversion Rate, in addition to those required by this paragraph 4.4.9(d), as it
in its discretion shall determine to be advisable in order that any stock
dividends, subdivision of shares, reclassification or combination of shares,
distribution of rights or warrants to purchase stock or securities, or a
distribution of other assets (other than cash dividends) hereafter made by the
Corporation to its shareholders shall not be taxable.
(vii) In the event that, at any time as a result of shares of any other class of
capital stock becoming issuable in exchange or substitution for or in lieu of
shares of Common Stock or as a result of an adjustment made pursuant to the
provisions of this paragraph 4.4.9(d), the holder of 8.5% Preferred Stock,
Series A upon subsequent conversion shall become entitled to receive any shares
of capital stock of the Corporation, the number of such other shares so
receivable upon conversion of any shares of 8.5% Preferred Stock, Series A shall
thereafter be subject to adjustment from time to time in a manner and on terms
as nearly equivalent as practicable to the provisions contained herein.
(viii) Any certificate of designation filed in connection with the issuance of
any class or series of Additional Preferred shall contain terms substantially
identical to this paragraph 4.4.9(d).
(e) (i) Subject to paragraph 4.4.9(f) below, if
the Corporation shall be a party to a Change of Control transaction and
excluding any transaction as to which paragraph 4.4.9(d)(i) applies, in each
case as a result of which shares of Common Stock shall be converted into the
right to receive stock, securities or other property (including cash or any
combination thereof), there shall be no adjustment to the Conversion Rate but
each share of 8.5% Preferred Stock, Series A which is not converted into the
right to receive stock, securities or other property in connection with such
Change of Control transaction shall thereafter be convertible or exercisable
into the kind and amount of shares of stock, securities and other property
(including cash or any combination thereof) receivable upon the consummation of
such Change of Control transaction by a holder of that number of shares of
Common Stock into which one share of 8.5% Preferred Stock, Series A was
convertible or exercisable immediately prior to such Change of Control
transaction, assuming such holder of Common Stock (i) is not a Person with which
the Corporation consolidated or into which the Corporation merged or which
merged into the Corporation or to which such sale or transfer was made, as the
case may be (a "Constituent Person"), or an Affiliate of a Constituent Person
and (ii) failed to exercise his rights of election, if any, as to the kind or
amount of stock, securities and other property (including cash) receivable upon
such Change of Control transaction (PROVIDED, that, if the kind
<PAGE>
30
or amount of stock, securities and other property (including cash) receivable
upon such Change of Control transaction is not the same for each share of Common
Stock held immediately prior to such Change of Control transaction by other than
a Constituent Person or an Affiliate thereof and in respect of which such rights
of election shall not have been exercised (a "non-electing share"), then for the
purpose of this paragraph 4.4.9(e) the kind and amount of stock, securities and
other property (including cash) receivable upon such Change of Control
transaction by each non-electing share shall be deemed to be the kind and amount
so receivable per share by a plurality of the non-electing shares). The
provisions of this paragraph 4.4.9(e)(i) shall similarly apply to successive
Change of Control transactions.
(ii) Notwithstanding anything herein to the
contrary, if the Corporation is reorganized such that the Common Stock is
exchanged for the common stock of a new entity ("Holdco") whose common stock is
traded on the Nasdaq National Market or another recognized securities exchange
or automated quotation system, then the Corporation shall (A) cause Holdco to
comply with the terms of paragraph 4.4.11 and (B) by notice to the holders of
the 8.5% Preferred Stock, Series A, may cause the exchange of certificates
evidencing 8.5% Preferred Stock, Series A for certificates evidencing preferred
stock of Holdco having the same terms and conditions as set forth herein if as a
result of such reorganization the corporation into which the shares of 8.5%
Preferred Stock, Series A are convertible does not have the identical name of
the Corporation; PROVIDED that the rights attaching to the preferred stock of
Holdco shall be adjusted so as to comply with the local law of the country of
incorporation of Holdco or the new share structure of Holdco subject to such
rights effectively giving the same economic rights as the 8.5% Preferred Stock,
Series A (including for these purposes any resultant change in the tax treatment
for the holders of such stock). The terms of this paragraph 4.4.9(e)(ii) shall
also apply with respect to the Domestication Merger and the Merger, as described
in the last paragraph of the definition of "Change of Control" in paragraph
4.4.2.
(f) Notwithstanding anything herein to the
contrary, if a Change of Control occurs, each holder of shares of 8.5% Preferred
Stock, Series A shall have a one-time option, for a period of thirty (30) days
following written notice from the Corporation, which written notice shall be
given not less than fifteen (15) days prior to the expected occurrence of the
Change of Control, to convert all of its shares of 8.5% Preferred Stock, Series
A into shares of Common Stock at the Change of Control Conversion Rate. The
"Change of Control Conversion Rate" shall be equal to the Liquidation Preference
divided by the Special Conversion Price. The Change of Control Conversion Rate
shall be adjusted from time to time in accordance with the provisions of
paragraph 4.4.9 applicable generally to adjustment of the Conversion Rate.
Nothing in this paragraph 4.4.9(f) is intended to limit or alter the conversion
rights of a holder of shares of 8.5% Preferred Stock, Series A in paragraph
4.4.9(a). For purposes of this paragraph 4.4.9(f), the following definitions
shall apply:
<PAGE>
31
(i) "SPECIAL CONVERSION PRICE" shall mean
the greater of (x) 66.67% of the 25-Day Average Market Price of the Common Stock
on and including September 14, 2000 and (y) the Change of Control Price.
(ii) "CHANGE OF CONTROL PRICE" shall mean
(x) the fair market value of the consideration that would be received by a
holder of Common Stock for one share of Common Stock in a Change of Control
transaction from any successor, acquiror or other third party if such
transaction were to occur on the date of the notice referred to in the first
sentence of this paragraph 4.4.9(f) or (y) the Alternative Change of Control
Price if the holders of Common Stock do not receive any consideration in a
Change of Control transaction from any successor, acquiror or other third party.
For purposes of this definition, "Alternative Change of Control Price" shall
mean the fair market value per share of Common Stock on the date of the notice
referred to in the first sentence of this paragraph 4.4.9(f).
(iii) "CHANGE OF CONTROL INSTIGATOR" shall
mean any "Person" or "group", within the meaning of Sections 13(d) and 14(d)(2)
of the Exchange Act or any successor provision to either of the foregoing,
including any group acting for the purpose of acquiring, holding or disposing of
securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act, other
than any Permitted Holder, whose activities, actions or participation results,
directly or indirectly, in a Change of Control.
(g) If:
(i) the Corporation shall declare a
dividend or any other distribution on the Common Stock; or
(ii) the Corporation shall authorize the
granting to the holders of the Common Stock of rights or warrants to
subscribe for or purchase any shares of any class or any other rights
or warrants; or
(iii) there shall be any subdivision,
combination or reclassification of the Common Stock or any Change of
Control transaction for which approval of any shareholders of the
Corporation is required; or
(iv) there shall occur the voluntary or
involuntary liquidation, dissolution or winding up of the Corporation;
then the Corporation shall cause to be filed with any transfer agent designated
by the Corporation pursuant to paragraph 4.4.9(b) and shall cause to be mailed
by certified mail, return receipt requested, to the holders of shares of the
8.5% Preferred Stock, Series A at their addresses as shown on the stock records
of the Corporation, as promptly as reasonably practicable, but at least ten days
prior to the applicable date hereinafter specified, a notice stating (A) the
date on which a record is to be taken for
<PAGE>
32
the purpose of such dividend (or such other distribution) or rights or warrants,
or, if a record is not to be taken, the date as of which the holders of Common
Stock of record to be entitled to such dividend, distribution or rights or
warrants are to be determined or (B) the date on which such subdivision,
combination, reclassification, Change of Control transaction, liquidation,
dissolution or winding up or other action is expected to become effective, and
the date as of which it is expected that holders of Common Stock of record shall
be entitled to exchange their shares of Common Stock for securities or other
property, if any, deliverable upon such subdivision, combination,
reclassification, Change of Control transaction, liquidation, dissolution or
winding up. Failure to give or receive such notice or any defect therein shall
not affect the legality or validity of any dividend, distribution, right,
warrant, subdivision, combination, reclassification, Change of Control
transaction, liquidation, dissolution, winding up or other action, or the vote
upon any of the foregoing.
(h) Whenever the Conversion Rate is adjusted as
herein PROVIDED, the Corporation shall prepare an officer's certificate with
respect to such adjustment of the Conversion Rate setting forth the adjusted
Conversion Rate and the effective date of such adjustment and shall mail a copy
of such officer's certificate to the holder of each share of 8.5% Preferred
Stock, Series A at such holder's last address as shown on the stock records of
the Corporation and confirm by facsimile transmission on the date of such notice
to such holder if the Corporation has been furnished with such facsimile address
by such holder. If the Corporation shall have designated a transfer agent
pursuant to paragraph 4.4.9(b), it shall also as promptly as reasonably
practicable file with such transfer agent an officer's certificate setting forth
the Conversion Rate after such adjustment and setting forth a brief statement of
the facts requiring such adjustment which certificate shall be conclusive
evidence of the correctness of such adjustment.
(i) In any case in which paragraph 4.4.9(d)
provides that an adjustment shall become effective on the day next following a
record date for an event, the Corporation may defer until the occurrence of such
event (i) issuing to the holder of any share of 8.5% Preferred Stock, Series A
converted after such record date and before the occurrence of such event the
additional shares of Common Stock issuable upon such conversion by reason of the
adjustment contemplated by such event over and above the Common Stock issuable
upon such conversion before giving effect to such adjustment.
(j) For purposes of this paragraph 4.4.9, the
number of shares of Common Stock at any time outstanding shall not include any
shares of Common Stock then owned or held by or for the account of the
Corporation.
(k) There shall be no adjustment of the
Conversion Rate in case of the issuance of any stock of the Corporation in a
Change of Control transaction, except as specifically set forth in this
paragraph 4.4.9. If any single action would require adjustment of the Conversion
Rate pursuant to more than one
<PAGE>
33
subparagraph of this paragraph 4.4.9, only one adjustment shall be made and such
adjustment shall be the amount of adjustment that has the highest absolute
value.
(l) If the Corporation shall take any action
affecting the Common Stock, other than action described in this paragraph 4.4.9,
that in the opinion of the Board of Directors materially adversely affects the
conversion rights of the holders of the shares of 8.5% Preferred Stock, Series
A, the Conversion Rate may be adjusted by the Board of Directors, to the extent
permitted by law, in such manner, if any, and at such time, as the Board of
Directors may determine in good faith to be equitable in the circumstances;
PROVIDED that the provisions of this paragraph 4.4.9(l) shall not affect any
rights the holders of 8.5% Preferred Stock, Series A may have at law or in
equity.
(m) (i) The Corporation covenants that it will
at all times reserve and keep available, free from preemptive rights, out of the
aggregate of its authorized but unissued shares of Common Stock for the purpose
of effecting conversion of the 8.5% Preferred Stock, Series A, the full number
of shares of Common Stock deliverable upon the conversion of all outstanding
shares of 8.5% Preferred Stock, Series A not theretofore converted. For purposes
of this paragraph 4.4.9(m) the number of shares of Common Stock that shall be
deliverable upon the conversion of all outstanding shares of 8.5% Preferred
Stock, Series A shall be computed as if at the time of computation all such
outstanding shares were held by a single holder.
(ii) The Corporation covenants that any
shares of Common Stock initially issued upon conversion of the 8.5% Preferred
Stock, Series A shall be duly authorized, validly issued, fully paid and
non-assessable. Before taking any action that would cause an adjustment
increasing the Conversion Rate such that the quotient of the Liquidation
Preference and the Conversion Rate (which quotient initially shall be as
described in paragraph 4.4.9(a) with respect to the shares of 8.5% Preferred
Stock, Series A, denominated in dollars and cents) would be reduced below the
then- par value of the shares of Common Stock deliverable upon conversion of the
8.5% Preferred Stock, Series A, the Corporation will take any corporate action
that, based on the opinion of its counsel, may be necessary in order that the
Corporation may validly and legally issue fully paid and non-assessable shares
of Common Stock with respect to such adjusted Conversion Rate.
(iii) Prior to the delivery of any
securities that the Corporation shall be obligated to deliver upon conversion of
the 8.5% Preferred Stock, Series A, the Corporation shall comply with all
applicable federal and state laws and regulations which require action to be
taken by the Corporation, including but not limited to compliance with the
Securities Act, the Exchange Act, the HSR Act, the rules and regulations of
Nasdaq (or any other exchange or automated quotation system on which the Common
Stock is then traded or listed). The Corporation shall pay or cause to be paid
the costs and expenses of the Initial Holder
<PAGE>
34
associated with such compliance in accordance with the Purchase Agreement and
the Corporation agrees to pay or cause to be paid the costs and expenses of
subsequent holders of shares of 8.5% Preferred Stock, Series A associated with
such compliance.
(n) The Corporation will pay any and all
documentary stamp or similar issue or transfer taxes payable in respect of the
issue or delivery of shares of Common Stock or other securities or property on
conversion of the 8.5% Preferred Stock, Series A pursuant hereto; PROVIDED,
HOWEVER, that the Corporation shall not be required to pay any tax that may be
payable in respect of any transfer involved in the issue or delivery of shares
of Common Stock or other securities or property in a name other than that of the
holder of the 8.5% Preferred Stock, Series A to be converted and no such issue
or delivery shall be made unless and until the Person requesting such issue or
delivery has paid to the Corporation the amount of any such tax or established,
to the satisfaction of the Corporation, that such tax has been paid or satisfied
in full.
4.4.10 LOSS, THEFT, MUTILATION OR DESTRUCTION OF
CERTIFICATES. Upon receipt by the Corporation of evidence of the loss, theft,
destruction or mutilation of any certificates representing shares of 8.5%
Preferred Stock, Series A (the "Preferred Share Certificates") and (in the case
of loss, theft or destruction) of indemnity satisfactory to the Corporation, and
upon surrender and cancellation of the Preferred Share Certificate(s), if
mutilated, the Corporation shall execute and deliver new Preferred Share
Certificate(s) of like tenor and date. Any holder of 8.5% Preferred Stock,
Series A making a request under this paragraph 4.4.10 shall be responsible for
all costs and expenses associated therewith, including, but not limited to the
securing of an indemnity bond.
4.4.11 ASSUMPTION OF OBLIGATIONS. Prior to the
consummation of a Change of Control transaction or any other transaction in
which any Person other than the Corporation shall be the successor or acquiring
Person, the resulting successor or acquiring Person (if not the Corporation)
and, if an entity different from the successor or acquiring entity, the entity
whose capital stock or assets the holders of the Common Stock are entitled to
receive as a result of the Change of Control transaction or any other
transaction in which any Person other than the Corporation shall be the
successor or acquiring Person shall be required to assume by written instrument
(in form and substance reasonably satisfactory to the holders of least 50% of
the aggregate Liquidation Preference of the issued and outstanding shares of
8.5% Preferred Stock, Series A) the obligations of this paragraph 4.4.11.
4.4.12 GOVERNANCE.
(a) The holders of record of shares of 8.5%
Preferred Stock, Series A shall not be entitled to any voting rights, except as
hereinafter provided in this paragraph 4.4.12 or as otherwise provided by law.
<PAGE>
35
(b) Without the written consent of the holders
of at least seventy-five percent (75%) of the aggregate Liquidation Preference
or the vote of the holders of at least seventy-five percent (75%) of the
aggregate Liquidation Preference at a meeting of the holders of 8.5% Preferred
Stock, Series A called for such purpose, the Corporation will not amend, alter
or repeal any provision of the Memorandum of Association (by merger or
otherwise), or any other comparable organizational documents, so as to adversely
affect the powers, designation, dividend rights, voting powers, rights on
liquidation, conversion rights, redemption rights and other preferences and
relative, participating, optional or other special rights of the 8.5% Preferred
Stock, Series A; PROVIDED THAT any such amendment or alteration that changes the
dividend payable on the 8.5% Preferred Stock, Series A, or the Conversion Rate
or the Liquidation Preference shall require the vote of holders of at least
ninety (90%) of the aggregate Liquidation Preference at a meeting of the holders
of 8.5% Preferred Stock, Series A called for such purpose or the written consent
of the holders of at least ninety (90%) of the aggregate Liquidation Preference.
(c) Without the written consent of the holders
of at least seventy-five percent (75%) of the aggregate Liquidation Preference
or the vote of holders of at least seventy-five percent (75%) of the aggregate
Liquidation Preference at a meeting of the holders of 8.5% Preferred Stock,
Series A called for such purpose, the Corporation will not issue any additional
8.5% Preferred Stock, Series A or create, authorize or issue any Senior
Securities or increase the authorized amount of any such class or series of
Senior Securities; PROVIDED THAT this paragraph 4.4.12(c) shall not limit the
right of the Corporation to issue Additional Preferred as dividends pursuant to
paragraph 4.4.5 or the issuance of any shares of Parity Securities by the
Corporation to stockholders of the Corporation in connection with the
Recapitalization of the Corporation occurring immediately prior to the Merger,
as described in the Definitive Schedule 14A.
(d) In exercising the voting rights set forth in
this paragraph 4.4.10, each share of 8.5% Preferred Stock, Series A shall have
one vote per share, except that when any other series of preferred stock shall
have the right to vote with the 8.5% Preferred Stock, Series A as a single class
on any matter, then the 8.5% Preferred Stock, Series A and other series shall
have with respect to such matters one vote per $1,000 of stated liquidation
preference. Except as otherwise required by applicable law or as set forth
herein, the shares of 8.5% Preferred Stock, Series A shall not have any
relative, participating, optional or other special voting rights and powers and
the consent of the holders thereof shall not be required for the taking of any
corporate action.
4.4.13 GENERAL PROVISIONS.
(a) The headings of the paragraphs,
subparagraphs, clauses and subclauses of this paragraph 4.4 are for convenience
of reference only and shall not define, limit or affect any of the provisions
hereof.
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36
(b) The shares of 8.5% Preferred Stock, Series A
shall bear the following legend:
THE PREFERRED STOCK, PAR VALUE $0.01 PER SHARE, OF THE COMPANY
(THE "PREFERRED STOCK") (AND THE SHARES OF COMMON STOCK, PAR
VALUE $0.01 PER SHARE, OF THE COMPANY (THE "COMMON STOCK")
INTO WHICH THE PREFERRED STOCK MAY BE CONVERTED) REPRESENTED
BY THIS CERTIFICATE MAY NOT BE OFFERED OR SOLD IN THE UNITED
STATES ABSENT REGISTRATION UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS OR AN
APPLICABLE EXEMPTION FROM REGISTRATION REQUIREMENTS. THE
TRANSFER OF THE PREFERRED STOCK (OR COMMON STOCK, IF THE
PREFERRED STOCK HAVE BEEN CONVERTED) EVIDENCED BY THIS
CERTIFICATE IS SUBJECT TO THE RESTRICTIONS ON TRANSFER
PROVIDED FOR IN THE PURCHASE AGREEMENT, DATED AUGUST 4, 2000,
AS AMENDED, BY AND BETWEEN CORECOMM LIMITED AND BOOTH AMERICAN
COMPANY, A COPY OF WHICH IS ON FILE AT THE EXECUTIVE OFFICES
OF THE COMPANY AND WILL BE FURNISHED WITHOUT CHARGE TO THE
HOLDER OF SUCH PREFERRED STOCK (OR COMMON STOCK, IF THE
PREFERRED STOCK HAVE BEEN CONVERTED) UPON WRITTEN REQUEST TO
THE COMPANY.
The shares of Common Stock issuable upon conversion of the
8.5% Preferred Stock, Series A shall bear the following legend:
THE SHARES OF COMMON STOCK, PAR VALUE $0.01 PER SHARE, OF THE
COMPANY (THE "COMMON STOCK") REPRESENTED BY THIS CERTIFICATE
MAY NOT BE OFFERED OR SOLD IN THE UNITED STATES ABSENT
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
ANY APPLICABLE STATE SECURITIES LAWS OR AN APPLICABLE
EXEMPTION FROM REGISTRATION REQUIREMENTS. THE TRANSFER OF THE
COMMON STOCK EVIDENCED BY THIS CERTIFICATE IS SUBJECT TO THE
RESTRICTIONS ON TRANSFER PROVIDED FOR IN THE PURCHASE
AGREEMENT, DATED AS OF AUGUST 4, 2000, AS AMENDED, BY AND
BETWEEN CORECOMM LIMITED AND BOOTH AMERICAN COMPANY, A COPY OF
WHICH IS ON FILE AT THE EXECUTIVE OFFICES OF THE COMPANY AND
WILL BE FURNISHED WITHOUT CHARGE TO THE HOLDER OF
<PAGE>
37
SUCH COMMON STOCK UPON WRITTEN REQUEST TO THE COMPANY.
(c) At the request of any holder made subsequent
to the expiration or termination of any restrictions on transfer set forth in
the Purchase Agreement, the Corporation shall reissue any certificates for
shares of 8.5% Preferred Stock, Series A, or Common Stock to remove from the
above legends any reference to such restrictions on transfer set forth in the
Purchase Agreement.
(d) Unless the certificates to be issued shall
be registered in the same name as the name in which such surrendered
certificates are registered, each certificate so surrendered shall be
accompanied by instruments of transfer, in form satisfactory to the Corporation,
duly executed by the holder or the holder's duly authorized attorney and an
amount sufficient to pay any transfer or similar tax (or evidence reasonably
satisfactory to the Corporation demonstrating that such taxes have been paid or
satisfied in full). All certificates so surrendered shall be canceled by the
Corporation or the transfer agent and thereafter shall not be reissued.
4.4.14 As promptly as reasonably practicable after
the surrender by a holder of such certificates, the Corporation shall issue and
shall deliver to such holder, or on the holder's written order, a certificate or
certificates (which certificate or certificates shall have the legend set forth
in paragraph 4.4.13(b)) for the number of duly authorized, validly issued, fully
paid and non-assessable shares of Common Stock represented by the certificates
so surrendered.
4.4.15 SHAREHOLDER RIGHTS PLAN. The shares of 8.5%
Preferred Stock, Series A shall be entitled to the benefits of a number of
rights ("Rights") issuable under any plan adopted by the Corporation of similar
purpose and effect as the Shareholder Rights Agreement, dated as of August 18,
1998, as amended, between the Initial Predecessor Corporation and Continental
Stock Transfer & Trust Company (the "Rights Agreement") equal to the number of
shares of Common Stock then issuable upon conversion of the 8.5% Preferred
Stock, Series A at the prevailing Conversion Rate. Any shares of Common Stock
deliverable upon conversion or redemption of a share of 8.5% Preferred Stock,
Series A or upon payment of a dividend shall be accompanied by a Right pursuant
to any such applicable Rights Agreement.
4.5 SERIES B SENIOR CONVERTIBLE EXCHANGEABLE PREFERRED
STOCK.
4.5.1 NUMBER AND DESIGNATION. 250,000 shares of
the Preferred Stock of the Corporation shall be designated as Series B Senior
Convertible Exchangeable Preferred Stock (the "Series B Preferred Stock") and no
other shares of Preferred Stock shall be designated as Series B Preferred Stock.
<PAGE>
38
4.5.2 DEFINITIONS. For purposes of the Series B
Preferred Stock, the following terms shall have the meanings indicated:
"BOARD OF DIRECTORS" shall mean the board of
directors of the Corporation or the Executive Committee, if any, of such board
of directors or any other committee duly authorized by such board of directors
to perform any of its responsibilities with respect to the Series B Preferred
Stock.
"BUSINESS DAY" shall mean any day other than a
Saturday, Sunday or a day on which state or federally chartered banking
institutions in New York, New York are not required to be open.
"CHANGE OF CONTROL" shall mean (a) the sale, lease or
transfer of all or substantially all of the assets of the Corporation to any
"Person" or "group" (within the meaning of Sections 13(d)(3) and 14(d)(2) of the
Exchange Act or any successor provision to either of the foregoing, including
any group acting for the purpose of acquiring, holding or disposing of
securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act) (other
than any Permitted Holder), (b) any "Person or "group" (within the meaning of
Sections 13(d) and 14(d)(2) of the Exchange Act or any successor provision to
either of the foregoing, including any group acting for the purpose of
acquiring, holding or disposing of securities within the meaning of Rule
13d-5(b) under the Exchange Act), other than any Permitted Holder, becomes the
"beneficial owner" (as defined in Rule 13d-2 under the Exchange Act) of more
than 35% of the total voting power of all classes of the voting stock of the
Corporation and/or warrants or options to acquire such voting stock, calculated
on a fully diluted basis, in one or more series of transactions unless, as a
result of such transaction, 35% or more than the ultimate direct or indirect
ownership of the Corporation in place prior to such transaction remains in place
immediately after such transaction or series of transactions, or (c) during any
period of two consecutive years, individuals who at the beginning of such period
constituted the Corporation's Board of Directors together with any new directors
whose election or appointment by such board or whose nomination for election by
the shareholders of the Corporation was approved by a vote of a majority of the
directors then still in office who were either directors at the beginning of
such period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the Corporation's
Board of Directors then in office.
"CHANGE OF CONTROL EXERCISE PERIOD" shall have the
meaning set forth in paragraph 4.5.8(a)(ii).
"CHANGE OF CONTROL INSTIGATOR" shall mean any Person
or "group" within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act
or any successor provision to either of the foregoing, including any group
acting for the purpose of acquiring, holding or disposing of securities within
the meaning of Rule
<PAGE>
39
13d-5(b)(1) under the Exchange Act) whose activities, actions or participation
results, directly or indirectly, in a Change of Control.
"CHANGE OF CONTROL PRICE" shall mean (i) the Fair
Market Value of the consideration received by a holder of Common Stock for one
share of Common Stock in a Change of Control transaction from any successor,
acquiror or other third party, or (ii) the Alternative Change of Control Price
if holders of Common Stock do not receive any consideration in a Change of
Control transaction from any successor, acquiror or other third party. For
purposes of this definition, "Alternative Change of Control Price" shall mean
the Fair Market Value per share of Common Stock on the date on which the Change
of Control Instigator causes the Change of Control, as adjusted for any
subsequent stock split, stock dividend, subdivision or reclassification
affecting or relating to the Common Stock.
"COMMON STOCK" shall mean the Corporation's Common
Stock, par value $.01 per share.
"COMMON STOCK CONVERSION RATE" shall mean, as of any
date, (i) $1,000.00 plus all accrued and unpaid dividends thereon to the date of
conversion, divided by (ii) the Conversion Price in effect as of such date.
"CONVERSION PRICE" shall mean $32.11 per share of
Series B Preferred Stock, subject to adjustment as provided herein; PROVIDED,
HOWEVER, that if, on March 29, 2001, the Principal Indebtedness Attributable to
the Senior Notes is less than $108,668,636, the Conversion Price shall be
increased, effective on such date, to an amount not to exceed $36.05, subject to
adjustment as provided herein, calculated by the Corporation based on the chart
set forth in paragraph 4.5.10 (which calculation shall be final and binding,
absent manifest error) and set forth in a certificate of the Chief Financial
Officer of the Corporation, a copy of which shall be delivered to each holder of
record of shares of Series B Preferred Stock in the manner set forth in
paragraph 4.5.10(b) hereof, and thereafter the Conversion Price shall be such
increased amount, subject to adjustment as provided herein.
"CURRENT MARKET PRICE" of publicly traded shares of
Common Stock or any other class of capital stock or other security of the
Corporation or any other issuer for any day shall mean (i) if the security is
then listed or admitted to trading on a national securities exchange in the
United States, the last reported sale price, regular way, for the security as
reported in the consolidated transaction or other reporting system for
securities listed or traded on such exchange, or (ii) if the security is quoted
on the Nasdaq National Market, the last reported sale price, regular way, for
the security as reported on such list, or (iii) if the security is not so
admitted for trading on any national securities exchange or the Nasdaq National
Market, the average of the last reported closing bid and asked prices reported
by the Nasdaq as furnished by any member in good standing of the National
Association of Securities Dealers, Inc., selected from time to time by the
Corporation for that purpose or as
<PAGE>
40
quoted by the National Quotation Bureau Incorporated. In the event that no such
quotation is available for such day, the Current Market Price shall be the
average of the quotations for the last five Trading Days for which a quotation
is available within the last 30 Trading Days prior to such day. In the event
that five such quotations are not available within such 30-Trading Day period,
the Board of Directors shall be entitled to determine the Current Market Price
on the basis of such quotations as it reasonably and in good faith considers
appropriate.
"DETERMINATION DATE" shall have the meaning set forth
in paragraph 4.5.8(d)(ii) hereof.
"DIVIDEND PAYMENT DATE" shall mean December 31, March
31, June 30 and September 30, of each year, commencing on December 31, 2000;
PROVIDED, HOWEVER, that if any Dividend Payment Date falls on any day other than
a Business Day, the dividend payment due on such Dividend Payment Date shall be
paid on the first Business Day following such Dividend Payment Date.
"DIVIDEND PERIOD" shall mean a quarterly dividend
period commencing on the Issue Date, in the case of the first Dividend Period,
and thereafter on each Dividend Payment Date, and ending on and including the
day immediately preceding the next Dividend Payment Date.
"EXCHANGE ACT" shall mean the Securities Exchange Act
of 1934, as amended, and the rules and regulations promulgated thereunder.
"EXCHANGE DATE" shall mean the date set forth in a
notice delivered by the Corporation in accordance with the provisions of
paragraph 4.5.8(b)(ii) hereof.
"FAIR MARKET VALUE" means (a) in the case of cash,
the amount of such cash; (b) in the case of stock, the Current Market Price of
such stock as of the close of business on the first full Trading Day following
the day on which the transaction resulting in a Change of Control is first
announced and (c) in the case of property other than cash or stock, the fair
market value of such property on the date in question as determined in good
faith by the Board of Directors.
"ISSUE DATE" shall mean the date on which shares of
Series B Preferred Stock are first issued.
"JUNIOR SECURITIES" shall have the meaning set forth
in paragraph 4.5.3(c) hereof.
"JUNIOR SECURITIES DISTRIBUTIONS" shall have the
meaning set forth in paragraph 4.5.4(d) hereof.
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41
"MANDATORY REDEMPTION DATE" shall have the meaning
set forth in paragraph 4.5.6(a) hereof.
"MANDATORY REDEMPTION OBLIGATION" shall have the
meaning set forth in paragraph 4.5.6(b) hereof.
"NASDAQ" means the National Association of Securities
Dealers, Inc. Automated Quotations System.
"NYSE" means the New York Stock Exchange.
"OUTSTANDING," when used with reference to shares of
stock, shall mean issued shares, excluding shares held by the Corporation or a
subsidiary.
"PARITY SECURITIES" shall have the meaning set forth
in paragraph 4.5.3(b) hereof.
"PERMITTED DESIGNEE" shall mean (i) a spouse or a
child of a Permitted Holder, (ii) trusts for the benefit of a Permitted Holder
or a spouse or child of a Permitted Holder, (iii) in the event of the death or
incompetence of a Permitted Holder, his estate, heirs, executor, administrator,
committee or other personal representative or (iv) any Person so long as a
Permitted Holder owns at least 50% of the voting power of all classes of the
voting stock of such Person.
"PERMITTED HOLDER" shall mean each of George S.
Blumenthal, J. Barclay Knapp and their Permitted Designees.
"PERSON" shall mean any individual, a corporation, a
partnership, an association, a joint-stock company, a limited liability company,
a trust, any unincorporated organization, or a government or political
subdivision thereof.
"PRINCIPAL INDEBTEDNESS ATTRIBUTABLE TO THE SENIOR
NOTES" at any given time shall mean the excess of (i) the aggregate principal
amount of Senior Notes outstanding at such time, over (ii) the aggregate
principal amount of any personal notes delivered to the Corporation pursuant to
Section 1.2(i) of the Recapitalization Agreement and outstanding at such time.
"RECAPITALIZATION AGREEMENT" shall mean that certain
Recapitalization Agreement and Plan of Merger, dated March 9, 2000, as amended,
among the Corporation, CoreComm Limited, ATX Merger Sub, Inc., CoreComm Merger
Sub, Inc. and certain individuals.
"RECAPITALIZATION TRANSACTION" means the
recapitalization of the Corporation contemplated by the Recapitalization
Agreement.
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42
"REGISTRATION RIGHTS AGREEMENT" shall mean that
certain Registration Rights Agreement, dated the Issue Date, as in effect from
time to time, among the Corporation, and certain individual stockholders of the
Corporation.
"SECURITIES ACT" means the Securities Act of 1933, as
in effect from time to time, and the rules and regulations promulgated
thereunder.
"SENIOR NOTES" mean the Senior Notes due 2003 issued
by the Corporation on the Issue Date in connection with the Recapitalization
Transaction, if any.
"SERIES B PREFERRED STOCK" shall have the meaning act
forth in paragraph 4.5. 1 hereof.
"SENIOR SECURITIES" shall have the meaning set forth
in paragraph 4.5.3(a) hereof.
"SET APART FOR PAYMENT" shall be deemed to include,
without any action other than the following, the recording by the Corporation in
its accounting ledgers of any accounting or bookkeeping entry which indicates,
pursuant to a declaration of dividends or other distribution by the Board of
Directors, the allocation of funds to be so paid on any series or class of
capital stock of the Corporation; PROVIDED, HOWEVER, that if any funds for any
class or series of Junior Securities or any class or series of Parity Securities
are placed in a separate account of the Corporation or delivered to a
disbursing, paying or other similar agent, then "set apart for payment" with
respect to the Series B Preferred Stock shall mean placing such funds in a
separate account or delivering such funds to a disbursing, paying or other
similar agent.
"SPECIAL CONVERSION PRICE" shall mean the greater of
(x) .6667 of the last reported sales price, regular way, on the Nasdaq National
Market, of Common Stock, par value $.01 of CoreComm Limited, a Bermuda
corporation, on the Issue Date, adjusted for any subsequent stock split, stock
dividend, subdivision or reclassification affecting or relating to the Common
Stock, and (y) the Change of Control Price.
"TRADING DAY" shall mean any day on which the
securities in question shall be traded on the NYSE, or if such securities are
not listed or admitted for trading on the NYSE, on the principal national
securities exchange on which such securities are listed or admitted, or if not
traded or admitted for trade on any national securities exchange, on the Nasdaq
National Market, or if such securities am not quoted thereon, in the applicable
securities market in which the securities are traded.
"VOLUME WEIGHTED AVERAGE SALE PRICE" of a share of
stock shall mean the volume weighted average price of such stock traded on the
New York Stock
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43
Exchange, or if such stock is not listed on such exchange, the principal United
States securities exchange registered under the Exchange Act on which such stock
is listed or, if such stock is not listed on any such exchange, the volume
weighted average price per share of such stock traded on the Nasdaq National
Market, or, if such stock is not so listed, on any similar trading market, on
the specified day or days as determined by the Corporation based on volume
weighted average price information displayed on the Bloomberg Volume at Price
Page or such additional or other sources(s) as the Corporation may select in
good faith.
4.5.3 RANK. Any class or series of stock of the
Corporation shall be deemed to rank:
(a) prior to the Series B Preferred Stock,
either as to the payment of dividends or as to distribution of assets upon
liquidation, dissolution or winding up, or both, if the holders of such class or
series shall be entitled by the terms thereof to the receipt of dividends or of
amounts distributable upon liquidation, dissolution or winding up, in preference
or priority to the holders of Series B Preferred Stock ("Senior Securities");
(b) on a parity with the Series B Preferred
Stock, either as to the payment of dividends or as to distribution of assets
upon liquidation, dissolution or winding up, or both, whether or not the
dividend rates, dividend payment dates or redemption or liquidation prices per
share thereof be different from those of the Series B Preferred Stock if the
holders of the Series B Preferred Stock and of such class of stock or series
shall be entitled by the terms thereof to the receipt of dividends or of amounts
distributable upon liquidation, dissolution or wind up, or both, in proportion
to their respective amounts of liquidation preferences, without preference or
priority one over the other and such class of stock or series is not a class of
Senior Securities ("Parity Securities"); and
(c) junior to the Series B Preferred Stock,
either as to the payment of dividends or as to the distribution of assets upon
liquidation, dissolution or winding up, or both, if such stock or series shall
be Common Stock or if the holders of the Series B Preferred Stock shall be
entitled to receipt of dividends, and of amounts distributable upon liquidation,
dissolution or winding up, in preference or priority to the holders of shares of
such stock or series ("Junior Securities").
The respective definitions of Senior Securities, Junior
Securities and Parity Securities shall also include any rights or options
exercisable for or convertible into any of the Senior Securities, Junior
Securities and Parity Securities, as the case may be. The Series B Preferred
Stock shall be subject to the creation of Junior Securities and Parity
Securities as set forth herein. Unless approved by a vote of the holders of the
shares of Series B Preferred Stock in accordance with paragraph 4.5.9 hereof,
the Series B Preferred Stock shall not be subject to the creation of Senior
Securities.
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44
4.5.4 DIVIDENDS. (a) Subject to paragraph
4.5.4(b), the holders of shares of Series B Preferred Stock shall be entitled to
receive, when declared by the Board of Directors, out of funds legally available
for the payment of dividends, on each Dividend Payment Date, dividends at the
quarterly rate of $7.50 per share; PROVIDED HOWEVER, that if on September 29,
2001, there shall be outstanding any Principal Indebtedness Attributable to the
Senior Notes, the quarterly dividend rate for periods following such date shall
increase to a quarterly rate of $12.50 per share; and PROVIDED, FURTHER, that if
on March 29, 2002, there shall be outstanding any Principal Indebtedness
Attributable to the Senior Notes, the quarterly dividend shall increase to
$17.50 per share. Subject to paragraph 4.5.4(f) hereof, dividends on the shares
of Series B Preferred Stock may be payable, in the sole discretion of the
Corporation, in cash or in shares of Common Stock (calculated based on the
Common Stock having a value equal to the product of (i) .98 and (ii) the Volume
Weighted Average Sale Price for the Corporation's Common Stock during the five
(5) Trading Day period ending on the Trading Day immediately prior to the
relevant Dividend Payment Date). Dividends on the Series B Preferred Stock shall
be cumulative from the Issue Date whether or not in any Dividend Period or
Periods there shall be funds of the Corporation legally available for the
payment of such dividends. Each such dividend shall be payable to the holders of
record of shares of the Series B Preferred Stock, as they appear on the stock
records of the Corporation at the close of business on the record date for such
dividend. Upon the declaration of any such dividend, the Board of Directors
shall fix as such record date the fifth Business Day preceding the relevant
Dividend Payment Date and shall give notice on or prior to the record date of
the form of payment of such dividend. Accrued and unpaid dividends for any past
Dividend Payment Date may be declared and paid at any time, without reference to
any Dividend Payment Date, to the holders of record on such record date, not
more than 45 days nor less than five Business Days preceding the payment date
thereof, as may be fixed by the Board of Directors.
(b) The dividends payable for any period other
than a full Dividend Period on the Series B Preferred Stock shall accrue daily
and be computed on the basis of a 91-day quarter and the actual number of days
(not in excess of 91 days) in such period. Holders of shares of Series B
Preferred Stock shall not be entitled to any dividends, whether payable in cash,
property or stock in excess of cumulative dividends, as herein provided on the
Series B Preferred Stock except as otherwise provided herein. No interest or sum
of money in lieu of interest shall be payable in respect of any dividend payment
or payments on the Series B Preferred Stock that may be in arrears except as
otherwise provided herein.
(c) So long as any shares of the Series B
Preferred Stock are outstanding no dividends, except as described in the next
succeeding sentence, shall be declared or paid or set apart for payment on
Parity Securities, for any period, nor shall any Parity Securities be redeemed,
purchased or otherwise acquired for any consideration (or any moneys be paid to
or made available for a sinking fund for the redemption of any such Parity
Securities) by the Corporation (except for conversion
<PAGE>
45
into or exchange for other Parity Securities or Junior Securities) unless, in
each case, full cumulative dividends on all outstanding shares of the Series B
Preferred Stock for all Dividend Periods terminating on or prior to the date of
such dividend, redemption, repurchase or other acquisition shall have been paid
or set apart for payment, sufficient funds have been paid or set apart for the
payment of the dividend for the current Dividend Period with respect to the
Series B Preferred Stock and the Corporation is not in default with respect to
any redemption of shares of Series B Preferred Stock by the Corporation pursuant
to paragraph 4.5.6 below. When dividends are not fully paid in Common Stock or
are not paid in full in cash or a sum sufficient for such payment is not set
apart, as aforesaid, all dividends declared upon shares of the Series B
Preferred Stock and all dividends declared upon Parity Securities shall be
declared ratably in proportion to the respective amounts of dividends
accumulated and unpaid on the Series B Preferred Stock and accumulated and
unpaid on such Parity Securities.
(d) So long as any shares of the Series B
Preferred Stock are outstanding, no dividends (other than any rights issued
pursuant to a shareholder rights plan and dividends or distributions paid in
shares of, or options, warrants or rights to subscribe for or purchase shares of
Junior Securities) shall be declared or paid or set apart for payment or other
distribution or made upon Junior Securities, nor shall any Junior Securities be
redeemed, paid or otherwise acquired (other than a redemption, purchase or other
acquisition of shares, of Common Stock made for purpose of an employee incentive
or benefit plan of the Corporation or any subsidiary or in the form of Junior
Securities) (all such non-excluded dividends, distributions, redemptions or
purchases being hereinafter referred to as "Junior Securities Distributions")
for any consideration (or any money be paid to or made available for a sinking
fund for the redemption of any shares of any Junior Securities) by the
Corporation, directly or indirectly, unless, in each case the full cumulative
dividends on all outstanding shares of the Series B Preferred Stock and any
other Parity Securities shall have been paid or set apart for payment for all
past Dividend Periods with respect to the Series B Preferred Stock and all past
dividend periods with respect to such Parity Securities and sufficient funds
shall have been paid or set apart for the payment of the dividend for the
current Dividend Period with respect to the Series B Preferred Stock and the
current dividend period with respect to such Parity Securities.
(e) For purposes solely for this Paragraph
4.5.4, the Common Stock shall be adjusted from time to time in a manner
consistent with the provisions of Paragraph 4.5.8(e) and 4.5.8(f) (as such
provisions may be applied to Common Stock instead of Series B Preferred Stock).
(f) The Corporation may not elect to make any
dividend payment on the shares of Series B Preferred Stock to a "Stockholder"
(as that term is defined in the Registrations Rights Agreement) in the form of
shares of Common Stock unless either (i) such shares of Common Stock are issued
under an effective Securities Act registration statement, or (ii) in accordance
with the terms of the
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46
Registration Rights Agreement (x) on or prior to the date of such dividend
payment, the Corporation shall have filed with the Securities and Exchange
Commission a registration statement under the Securities Act registering for
resale by the holders of the shares of Series B Preferred the shares of Common
Stock received by them as a dividend thereon (the "Resale Registration
Statement"), and (y) on the date of such dividend payment, the Resale
Registration Statement shall be effective under the Securities Act; PROVIDED,
HOWEVER, that the foregoing shall not prevent the Corporation from making any
dividend payment in the form of shares of Common Stock to a "Stockholder" (as
that term is defined in the Registrations Rights Agreement) without either (1)
such shares of Common Stock being issued under an effective Securities Act
registration statement or (2) there being on file by the Corporation with the
Securities and Exchange Commission an effective Resale Registration Statement
relating to such shares, if such Stockholder is in breach of its obligations
under the Registration Rights Agreement; provided, however, that the Corporation
must notify each "Stockholder" as to the nature of such breach and provide each
"Stockholder" with a reasonable period of time to cure such breach.
4.5.5 LIQUIDATION PREFERENCE. (a) In the event of
any liquidation, dissolution or winding up of the Corporation, whether voluntary
or involuntary, before any payment or distribution of the assets of the
Corporation (whether capital or surplus) shall be made to or set apart for the
holders of Junior Securities, the holders of the shares of Series B Preferred
Stock shall be entitled to receive $1,000.00 per share of Series B Preferred
Stock, plus an amount equal to all dividends (whether or not earned or declared)
accrued and unpaid thereon to the date of final distribution to such holders;
but such holders shall not be entitled to any other payment. If, upon any
liquidation, dissolution or winding up of the Corporation, the assets of the
Corporation, or proceeds thereof, distributable among the holders of the shares
of Series B Preferred Stock shall be insufficient to pay in full the
preferential amount aforesaid and liquidating payment on any Parity Securities,
then such assets, or the proceeds thereof, shall be distributed among the
holders of shares of Series B Preferred Stock and any such other Parity
Securities ratably in accordance with the respective amounts that would be
payable on such shares of Series B Preferred Stock and any such other Party
Securities if all amounts payable thereon were paid in full. For the purposes of
this paragraph 4.5.5, (i) a consolidation or merger of the Corporation with one
or more Persons, or (ii) a sale or transfer of all or substantially all of the
Corporation's assets shall not be deemed to be a liquidation, dissolution or
winding up, voluntary or involuntary, of the Corporation.
(b) Subject to the rights of the holders of any
Parity Securities, upon any liquidation, dissolution or winding up of the
Corporation, after payment shall have been made in full to the holders of the
Series B Preferred Stock, as provided in this paragraph 4.5.5, any other series
or class or classes of Junior Securities shall, subject to the respective terms
and provisions (if any) applying thereto, be entitled to receive any and all
assets remaining to be paid or distributed, and the holders of the Series B
Preferred Stock shall not be entitled to share therein.
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47
4.5.6 REDEMPTION. (a) On the twentieth anniversary
of the Issue Date (the "Mandatory Redemption Date"), the Corporation shall
redeem all outstanding shares of Series B Preferred Stock at a redemption price
of $1,000.00 per share, payable together with accrued and unpaid dividends
thereon to, but excluding, the Mandatory Redemption Date, without interest, and
either, in the sole discretion of the Corporation, (i) in cash or (ii) in shares
of Common Stock (calculated based on the Common Stock having a value equal to
the product of (a) .98 and (b) the Volume Weighted Average Sale Price for the
Corporation's Common Stock during the five (5) Trading Day period ending on the
Trading Day immediately prior to the Mandatory Redemption Date).
(b) If the Corporation shall have failed to
discharge its obligation to redeem all outstanding shares of Series B Preferred
Stock pursuant to paragraph 4.5.6(a) (the "Mandatory Redemption Obligation"),
the Corporation shall not, so long as such Mandatory Redemption Obligation has
not been fully discharged, (i) directly or indirectly, redeem, purchase, or
otherwise acquire any Parity Security or discharge any mandatory or optional
redemption, sinking fund or other similar obligation in respect of any Parity
Securities (except in connection with a redemption, sinking fund or other a
obligation to be satisfied pro rata with the Series B Preferred Stock) or (ii)
declare or make any Junior Securities Distribution (other than dividends or
distributions paid in shares of, or options, warrants or rights to subscribe for
or purchase shares of, Junior Securities), or, directly or indirectly, discharge
any mandatory or optional redemption, sinking fund or other similar obligation
in respect of the Junior Securities.
(c) Upon any redemption of Series B Preferred
Stock, the Corporation shall pay the redemption price and any accrued and unpaid
dividends in arrears to, but excluding, the applicable redemption date.
(d) For purposes solely for this Paragraph
4.5.6, the Common Stock shall be adjusted from time to time in a manner
consistent with the provisions of paragraphs 4.5.8(e) and 4.5.8(f) (as such
provisions may be applied to Common Stock instead of Series B Preferred Stock).
4.5.7 PROCEDURE FOR REDEMPTION. (a) If the
Corporation shall redeem shares of Series B Preferred Stock pursuant to
paragraph 4.5.6(a), notice of such redemption shall be given in the manner set
forth in paragraph 4.5.10(b) hereof not less than 30 days nor more than 60 days
prior to the redemption date PROVIDED that neither the failure to give such
notice nor confirmation nor any defect therein or in the mailing thereof, to any
particular holder, shall affect the sufficiency of the notice or the validity of
the proceedings for redemption with respect to the other holders. Each such
notice shall state: (i) the redemption date; (ii) that all of the shares of
Series B Preferred Stock are to be redeemed; (iii) the amount payable; (iv) the
type of consideration to be paid; (v) the place or places where certificates for
such share are to be surrendered for payment of the redemption price; and (vi)
that
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48
dividends on the shares to be redeemed will cease to accrue on such redemption
date, except as otherwise provided herein.
(b) If notice has been mailed as aforesaid, from
and after the redemption date (unless default shall be made by the Corporation
in providing for the payment of the redemption price of the called for
redemption and dividends accrued and unpaid thereon, if any), (i) except as
otherwise provided herein, dividends on the shares of Series B Preferred Stock
so called for redemption shall cease to accrue, (ii) said shares shall no longer
be deemed to be outstanding and (iii) all rights of the holders thereof as
holders of the Series B Preferred Stock shall cease (except the right to receive
from the Corporation the redemption price without interest thereon, upon
surrender and endorsement of their certificates if so required.
(c) Upon surrender in accordance with notice
given pursuant to this paragraph 4.5.7 of the certificates for any shares so
redeemed (properly endorsed or assigned for transfer, if the Board of Directors
of the Corporation shall so require and the notice shall so state), such shares
shall be redeemed by the Corporation at the redemption price aforesaid.
4.5.8 CONVERSION.
(a) CONVERSION AT THE OPTION OF THE HOLDER.
(i) Each holder of a share of Series B
Preferred Stock shall have the right, at any time after the Issue Date,
to convert such share into fully paid and nonassessable shares of
Common Stock at the Common Stock Conversion Rate as of the date of
conversion.
(ii) In the event of a Change of Control,
each holder of the Series B Preferred Stock shall have a one time
option, exercisable during the Change of Control Exercise Period, to
convert any or all outstanding shares of Series B Preferred Stock into
fully paid and nonassessable shares of Common Stock at the Special
Conversion Price. Notice of a Change of Control shall be given to each
holder of the Series B Preferred Stock in the manner set forth in
paragraph 4.5.10(b) hereof not less than 15 days prior to or more than
15 days after the Change of Control; PROVIDED, HOWEVER, that failure to
mail such notice or any defect therein shall not affect the validity of
the proceeding for conversion of any shares of Series B Preferred Stock
to be converted except as to the holder to whom the Corporation has
failed to mail said notice or except to the holder whose notice was
defective. Such notice shall state: (A) the notice is being sent
pursuant to this paragraph 4.5.8(a)(ii), (B) that all shares of Series
B Preferred Stock delivered in accordance with paragraph 4.5.8(a)(iii)
during the period commencing on the date of the Notice and ending 30
days thereafter (the "Change of Control Exercise Period") will be
converted at the Special
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49
Conversion Price, (C) the Special Conversion Price and the method of
calculation thereof, and (D) that any shares of Series B Preferred
Stock not delivered to the Corporation by the expiration of the Change
of Control Exercise Period will thereafter possess a Conversion Price
equal to the Conversion Price, and not the Special Conversion Price.
(iii) Any holder of a share of Series B
Preferred Stock electing to convert such shares into Common Stock shall
surrender the certificate or certificates for such shares at the
offices of the Corporation (or at such other place in New York City as
the Corporation may designate by written notice to the holders of
shares of Series B Preferred Stock) during regular business hours, duly
endorsed to the Corporation or in blank, or accompanied by instruments
of transfer to the Corporation or in blank, in form reasonably
satisfactory to the Corporation, and shall give written notice to the
Corporation at such offices that such holder elects to convert such
shares of Series B Preferred Stock. Such notice shall state that the
holder has satisfied any legal or regulatory requirements for
conversion, including, if applicable, compliance with the Hart Scott
Rodino Antitrust Improvements Act of 1976. As soon as practicable (but
in any event not later than three (3) Business Days) after any holder
deposits certificates for shares of Series B Preferred Stock,
accompanied by the written notice above prescribed, the Corporation
shall issue and deliver at such office to the holder for whose account
such shares were surrendered, or to his nominee, certificates
representing the number of shares of Common Stock and the cash in lieu
of fractional shares, if any, to which such holder is entitled upon
such conversion.
(iv) Conversion shall be deemed to have
been made as of the date that certificates for the shares of Series B
Preferred Stock to be converted and the written notice are received by
the Corporation and the Person entitled to receive the Common Stock
issuable upon such conversion shall be treated for all purposes as the
record holder of such Common Stock on such date. The Corporation shall
not be required to deliver certificates for shares of Common Stock
while the stock transfer books for such stock or for Series B Preferred
Stock are duly closed (but not for any period in excess of three (3)
Business Days) for any purpose, but certificates for shares of Common
Stock shall be issued and delivered in accordance with paragraph
4.5.8(a) (iii) after the opening of such books.
(b) EXCHANGE AT THE OPTION OF THE CORPORATION.
(i) If, at any time after either (x) the
second anniversary of the Issue Date, upon notice given by the
Corporation in accordance with paragraph 4.5.8(b)(ii) not later than
thirty (30) days following a period of at least twenty (20) consecutive
Trading Days on which the Common Stock traded at a price equal to at
least 125% of the Conversion
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50
Price as of each such Trading Day, or (y) the fifth anniversary of the
Issue Date, if the Current Market Price per share of Common Stock at
any time during the twenty (20) consecutive Trading Days ending on the
Trading Day immediately prior to the day on which notice of exchange is
given by the Corporation in accordance with paragraph 4.5.8(b)(ii) is
at least 100% of the Conversion Price as of such date, the Corporation,
at its option, may elect to exchange, subject to the terms and
provisions of this paragraph 4.5.8, all or any of the shares of Series
B Preferred Stock for fully paid and nonassessable shares of Common
Stock at the Common Stock Conversion Rate as of the date of exchange.
If fewer than all the outstanding shares of Series B Preferred Stock
are to be exchanged as provided in this paragraph 4.5.8(b)(i), the
shares to be exchanged shall be determined pro rata among the holders
of record thereof.
(ii) If the Corporation shall elect to
exercise its rights under this paragraph 4.5.8(b), notice of such
election shall be given to each holder of the Series B Preferred Stock
in the manner set forth in paragraph 4.5.10(b) hereof not less than 10
days nor more than 60 days prior to the Exchange Date; PROVIDED,
HOWEVER, that failure to mail such notice or any defect therein shall
not affect the validity of the proceedings for exchange of any shares
of Series B Preferred Stock to be exchanged except as to the holder to
whom the Corporation has failed to mail said notice or except as to the
holder whose notice was defective. Each such notice shall state: (i)
the Exchange Date; (ii) the total number of shares of Series B
Preferred Stock to be exchanged and if less than all of the outstanding
shares of Series B Preferred Stock are exchanged, the number of shares
to be exchanged by such holder; (iii) the Common Stock Conversion
Price; and (iv) the place or places where certificates for such shares
are to be surrendered for certificates representing the number of
shares of Common Stock and the cash in lieu of fractional shares, if
any, to which such holder is entitled upon such exchange, which shall
be the offices of the Corporation (or at such other place in New York
City as the Corporation may designate).
(iii) On the Exchange Date, upon surrender
in accordance with said notice of any shares of Series B Preferred
Stock (properly endorsed or assigned for transfer, if the Board of
Directors of the Corporation shall so require and the notice shall so
state), the Corporation shall deliver to the holder of such shares of
Series B Preferred Stock so surrendered a certificate or certificates
representing the number of fully paid and non- assessable shares of
Common Stock into which such shares of Series B Preferred Stock have
been converted in accordance with the provisions of this paragraph
4.5.8(b). If fewer than all the shares represented by any such
certificate are exchanged, a new certificate shall be issued
representing the unconverted shares of Series B Preferred Stock without
cost to the holder of record thereof. For purposes of the foregoing,
such exchange shall be deemed
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51
to have been made at the close of business on the Exchange Date and the
person entitled to receive the Common Stock issuable upon such exchange
shall be treated for all purposes as the record holder of such Common
Stock on such date.
(c) NO FRACTIONAL SHARES. No fractional shares
or scrip representing fractions of shares of Common Stock shall be issued upon
conversion or exchange of Series B Preferred Stock. Instead of any fractional
interest in a share of Common Stock that would otherwise be deliverable upon the
conversion or exchange of a share of Series B Preferred Stock, the Corporation
shall, subject to paragraph 4.5.8(d)(iii), make a cash payment (calculated to
the nearest $.01) equal to such fraction multiplied by the Current Market Price
of the Common Stock on the Trading Day immediately prior to the date of
conversion or exchange.
(d) ADJUSTMENTS TO CONVERSION PRICE. The
Conversion Price, and the number and type of securities to be received upon
conversion of the Series B Preferred Stock shall be subject to adjustment as
follows:
(i) If the Corporation shall after the
Issue Date (A) declare a dividend or make a distribution on its Common
Stock in shares of its capital stock (other than a dividend or
distribution which holders of shares of Series B Preferred Stock
participate), (B) subdivide its outstanding Common Stock into a greater
number of shares, or (C) combine its outstanding Common Stock into a
smaller number of shares, and in each such case, the Conversion Price
on the record date for such dividend or distribution, or the effective
date of such subdivision or combination or reclassification, as the
case may be, shall be proportionately adjusted (and any other
appropriate actions shall be taken by the Corporation) so that the
holder of any share of Series B Preferred Stock thereafter surrendered
for conversion shall be entitled to receive the number and kind of
shares of Common Stock or other securities of the Corporation that such
holder would have owned or have been entitled to receive after the
happening of any of the events described above had such share of Series
B Preferred Stock been converted immediately prior to the record date
in the case of a dividend or distribution or the effective date in the
case of a subdivision or combination. An adjustment made pursuant to
this subparagraph (i) shall become effective immediately after the
opening of business on the Business Day immediately following the
record date in the case of a dividend or distribution and shall become
effective immediately after the opening of business on the Business Day
immediately following the effective date in the case of a subdivision,
combination or reclassification. In the event that after fixing a
record date any such dividend or distribution is not issued, the
Conversion Price shall be readjusted to the Conversion Price which
would be in effect if such record date had not been fixed. Adjustments
in accordance with this paragraph 4.5.8(d)(i) shall be made whenever
any event listed above shall occur.
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52
(ii) If the Corporation shall after the
Issue Date fix a record date for the issuance of rights or warrants (in
each case, other than any rights issued pursuant to a shareholder
rights plan) to all holders of Common Stock entitling them (for a
period expiring within 60 days after such record date) to subscribe for
or purchase Common Stock (or securities convertible into Common Stock)
at a price per share (or, in the case of a right or warrant to purchase
securities convertible into Common Stock, having an effective exercise
price per share of Common Stock, computed on the basis of the maximum
number of shares of Common Stock issuable upon conversion of such
convertible securities, plus the amount of additional consideration
payable, if any, to receive one share of Common Stock upon conversion
of such securities) less than the average Current Market Price for the
ten (10) Trading Days preceding the date on which such issuance was
declared or otherwise announced by the Corporation (the "Determination
Date"), then the Conversion Price in effect at the opening of business
of the Business Day next following such record date shall be adjusted
by multiplying the Conversion Price on the day immediately prior to the
Determination Date by a fraction, the numerator of which shall be the
sum of (A) the number of shares of Common Stock outstanding on the
close of business on the Determination Date and (B) the number of
shares that the aggregate proceeds to the Corporation from the exercise
of such rights and warrants for Common Stock would purchase at such
average Current Market Price for the ten (10) Trading Days preceding
such date (or, in the case of a right or warrant to purchase securities
convertible into Common Stock, the number of shares of Common Stock
obtained by dividing the aggregate exercise price of such rights or
warrants for the maximum number of shares of Common Stock issuable upon
conversion of such convertible securities, plus the aggregate amount of
additional consideration payable, if any, to convert such securities
into Common Stock, by such Conversion Price), and the denominator of
which shall be the sum of (A) the number of shares of Common Stock
outstanding on the close of business on the Determination Date and (B)
the number of additional shares of Common Stock offered for
subscription or purchase pursuant to such rights or warrants (or in the
case of a right or warrant to purchase securities convertible into
Common Stock, the aggregate number of additional shares of Common Stock
into which the convertible securities so offered are initially
convertible). Such adjustment shall become effective immediately after
the opening on the Business Day next following such record date. Such
adjustments shall be made successively whenever such a record date is
fixed. In the event that after fixing a record date such rights or
warrants are not so issued, the Conversion Price shall be readjusted to
the Conversion Price which would then be in effect if such record date
had not been fixed. In determining whether any rights or warrants
entitle the holders of Common Stock to subscribe for or purchase shares
of Common Stock at less than such average Current Market Price for the
ten (10) preceding Trading Days, there shall be taken into account any
consideration received by the Corporation upon issuance and upon
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53
exercise of such rights or warrants, the value of such consideration,
if other than cash, to be determined by the Board of Directors in good
faith. In case any rights or warrants referred to in this subparagraph
(ii) shall expire unexercised after the same shall have been
distributed or issued by the Corporation (or in the case of rights or
warrants to purchase securities convertible into Common Stock once
exercised, the conversion right of all such securities shall expire),
the Conversion Price shall be readjusted at the time of such expiration
to the Conversion Price that would have been in effect if no adjustment
had been made on account of the distribution or issuance of such
expired rights or warrants.
(iii) If the Corporation shall fix a
record date for the making of a distribution to all holders of its
Common Stock of evidences of its indebtedness, shares of its capital
stock or assets (excluding regular cash dividends or distributions
declared in the ordinary course by the Board of Directors and dividends
payable in Common Stock for which an adjustment is made pursuant to
paragraph 4.5.8(d)(i)) or rights or warrants (in each case, other than
any rights issued pursuant to a shareholder rights plan) to subscribe
for or purchase any of its securities (excluding those rights and
warrants issued to all holders of Common Stock entitling them for a
period expiring within 45 days after the record date referred to in
subparagraph (ii) above to subscribe for or purchase Common Stock or
securities convertible into shares of Common Stock, which rights and
warrants are referred to in and treated under subparagraph (ii) above
(excluding distributions or dividends in which holders of shares of
Series B Preferred Stock participate and dividends payable in shares of
Common Stock for which adjustment is made under another paragraph of
this paragraph 4.5.8(d)) (any of the foregoing being hereinafter in
this subparagraph (iii) called the "Securities"), then in each such
case the Conversion Price shall be adjusted by multiplying (I) the
Conversion Price in effect immediately prior to the close of business
on such record date by (II) a fraction, the numerator of which shall be
the Current Market Price per share of the Common Stock on such record
date less the fair market value as of the date of distribution (as
determined by the Board of Directors in good faith, whose determination
shall be conclusive absent manifest error) of the portion of the
assets, shares of its capital stock or evidences of indebtedness so
distributed or of such rights or warrants applicable to one share of
Common Stock, and the denominator of which shall be the average Current
Market Price for the ten (10) Trading Days preceding such record date.
Such adjustment shall be made successively whenever such a record date
is fixed; and in the event that after fixing a record date such
distribution is not so made, the Conversion Price shall be readjusted
to the Conversion Price which would then be in effect if such record
date had not been fixed. Such adjustment shall become effective
immediately at the opening of business on the Business Day next
following the record date for the determination of shareholders
entitled to receive such distribution. For the purposes of this
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54
subparagraph (iii), the distribution of a Security, which is
distributed not only to the holders of the Common Stock on the date
fixed for the determination of shareholders entitled to such
distribution of such Security, but also is distributed with each share
of Common Stock delivered to a Person converting a share of Series B
Preferred Stock after such determination date, shall not require an
adjustment of the Conversion Price pursuant to this subparagraph (iii);
PROVIDED that on the date, if any, on which a Person converting a share
of Series B Preferred Stock would no longer be entitled to receive such
Security with a share of Common Stock (other than as a result of the
termination of all such Securities), a distribution of such Securities
shall be deemed to have occurred and the Conversion Price shall be
adjusted as provided in this subparagraph (iii) (and such day shall be
deemed to be "the date fixed for the determination of shareholders
entitled to receive such distribution" and "the record date" within the
meaning of the three preceding sentences). If any rights or warrants
referred to in this subparagraph (iii) shall expire unexercised after
the same shall have been distributed or issued by the Corporation, the
Conversion Price shall be readjusted at the time of such expiration to
the Conversion Price that would have been in effect if no adjustment
has been made on account of the distribution or issuance of such
expired rights or warrants.
(iv) No adjustment in the Conversion
Price shall be required unless such adjustment would require a
cumulative increase or decrease of at least 1% in the Conversion Price;
PROVIDED, HOWEVER, that any adjustments that by reason of this
subparagraph (iv) are not required to be made shall be carried forward
and taken into account in any subsequent adjustment until made; and
PROVIDED, FURTHER, that any adjustment shall be required and made in
accordance with the provisions of this paragraph 4.5.8 (other than this
subparagraph (iv)) no later than such time as may be required in order
to preserve the tax-free nature of a distribution for United States
income tax purposes to the holders of shares of Series B Preferred
Stock or Common Stock. Notwithstanding any other provisions of this
paragraph 4.5.8, the Corporation shall not be required to make any
adjustment of the Conversion Price for the issuance of any shares of
Common Stock pursuant to any plan providing for the reinvestment of
dividends or interest payable on securities of the Corporation and the
investment of additional optional amounts in shares of Common Stock
under such plan. All calculations under this paragraph 4.5.8 shall be
made to the nearest 1/100 of a dollar or to the nearest 1/1,000 of a
share, as the case may be. Anything in this paragraph 4.5.8(d) to the
contrary notwithstanding, the Corporation shall be entitled, to the
extent permitted by law, to make such adjustments in the Conversion
Price, in addition to those required by this paragraph 4.5.8(d), as it
in its discretion shall determine to be advisable in order that any
stock dividends, subdivisions of shares, reclassifications or
combinations of shares, distribution or rights or warrants to purchase
stock or securities, or a distribution of other assets (other
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55
than cash dividends) hereafter made by the Corporation to its
shareholders shall not be taxable.
(v) In the event that, at any time as a
result of shares of any other class of stock becoming issuable in
exchange or substitution for or in lieu of shares of Common Stock or as
a result of an adjustment made pursuant to the provisions of this
paragraph 4.5.8(d), the holders of Series B Preferred Stock upon
subsequent conversion shall become entitled to receive any shares of
capital stock of the Corporation other than Common Stock, the number of
such other shares so receivable upon conversion of any shares of Series
B Preferred Stock shall thereafter be subject to adjustment from time
to time in a manner and on terms as nearly equivalent as practicable to
the provisions contained herein.
(e) SIGNIFICANT CORPORATE TRANSACTIONS. (i) If
the Corporation shall be a party to any transaction (including, without
limitation, a merger, consolidation or recapitalization of the Common Stock and
excluding any transaction as to which paragraph 4.5.8(d)(i) applies) (each of
the foregoing being referred to herein as a "Transaction"), in each case as a
result of which shares of Common Stock shall be converted into the right to
receive stock, securities or other property (including cash or any combination
thereof), there shall be no adjustment to the Conversion Price but each share of
Series B Preferred Stock which is not converted into the right to receive stock,
securities or other property in connection with such Transaction shall
thereafter be convertible or exchangeable into the kind and amount of shares of
stock, securities and other property (including cash or any combination thereof)
receivable upon the consummation of such Transaction by a holder of that number
of shares or fraction thereof of Common Stock into which one share of Series B
Preferred Stock was convertible or exchangeable immediately prior to such
Transaction, assuming such holder of Common Stock (i) is not a Person with which
the Corporation consolidated or into which the Corporation merged or which
merged into the Corporation, as the case may be ("Constituent Person"), or an
affiliate of a Constituent Person and (ii) failed to exercise his rights of
election, if any, as to the kind or amount of stock, securities and other
property (including cash) receivable upon such Transaction (PROVIDED that if the
kind or amount of stock, securities and other property (including cash)
receivable upon such Transaction is not the same for each share of Common Stock
of the Corporation held immediately prior to such Transaction by other than a
Constituent Person or an affiliate thereof and in respect of which such rights
of election shall not have been exercised ("non-electing share"), then for the
purpose of this paragraph 4.5.8(e) the kind and amount of stock, securities and
other property (including cash) receivable upon such Transaction by each
non-electing share shall be deemed to be the kind and amount so receivable per
share by a plurality of the non-electing shares). The
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provisions of this paragraph 4.5.8(e) shall similarly apply to successive
Transactions.
(ii) Notwithstanding anything herein to
the contrary, if the Corporation is reorganized such that the Common
Stock is exchanged for the common stock of a new entity ("Holdco")
whose common stock is traded on Nasdaq or a recognized securities
exchange, then the Corporation, by notice to the holders of the Series
B Preferred Stock but without any required consent on their part, may
cause the exchange of this Series B Preferred Stock for preferred stock
of Holdco having the same terms and conditions as set forth herein,
provided that if Holdco is not solely incorporated as a Delaware
company or if the Holdco share structure is not identical to that of
the Corporation, the rights attaching to the preferred stock of Holdco
may be adjusted so as to comply with the local law of the jurisdiction
of incorporation of Holdco or the new share structure of Holdco subject
to such rights effectively giving the same economic rights as the
Series B Preferred Stock.
(f) COMMON STOCK HELD BY THE CORPORATION. For
purposes of this paragraph 4.5.8, the number of shares of Common Stock at any
time outstanding shall not include any shares of Common Stock then owned or held
by the Corporation. The Corporation shall not pay a dividend or make any
distribution on shares of Common Stock held in the treasury of the Corporation.
(g) DISCRETIONARY ADJUSTMENT. If the Corporation
shall take any action affecting the Common Stock, other than action described in
this paragraph 4.5.8, that in the opinion of the Board of Directors materially
adversely affects the conversion rights of the holders of the shares of Series B
Preferred Stock, the Conversion Price may be adjusted, to the extent permitted
by law, in such manner, if any, and at such time, as the Board of Directors may
determine to be equitable in the circumstances.
(h) RESERVATION OF SHARES. The Corporation shall
at all times reserve and keep available, free from preemptive rights, out of its
authorized but unissued stock, for the purpose of effecting the conversion of
the shares of Series B Preferred Stock, such number of its duly authorized
shares of Common Stock as shall from time to time be sufficient to effect the
conversion of all outstanding shares of Series B Preferred Stock into such
Common Stock at any time (assuming that, at the time of the computation of such
number of shares, all such Common Stock would be held by a single holder). The
Corporation shall from time to time, in accordance with the laws of the State of
Delaware, use its best efforts to cause the authorized amount of Common Stock to
be increased if the aggregate of the authorized amount of the Common Stock
remaining unissued and the issued shares of such Common Stock in its treasury
(other than any shares of such Common Stock reserved for issuance in any other
connection) shall not be sufficient to permit the conversion of the outstanding
shares of Series B Preferred Stock into Common Stock. The
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57
Corporation covenants that any shares of Common Stock issued upon conversions of
shares of Series B Preferred Stock shall be validly issued, fully paid and
nonassessable.
(i) REGISTRATION OR APPROVAL. If any shares of
Common Stock which would be issuable upon conversion of shares of Series B
Preferred Stock hereunder require registration with or approval of any
governmental authority or stock exchange before such shares may be issued upon
conversion the Corporation will in good faith and as expeditiously as possible
cause such shares to be duly registered or approved, as the case may be, but the
Corporation shall not be required to issue such shares unless and until such
registration has been completed (and made effective) or such approval obtained.
(j) TAXES. The Corporation shall not be required
to pay any tax which is payable in respect of any transfer involved in the issue
or delivery of Common Stock in a name other than that in which the shares of
Series B Preferred Stock so converted were registered, and no such issue or
delivery shall be made unless and until the person requesting such issue has
paid to the Corporation the amount of such tax, or has established, to the
satisfaction of the Corporation, that such tax has been paid.
(k) MULTIPLE ADJUSTMENTS. If any action or
transaction would require adjustment of the Conversion Price pursuant to more
than one subparagraph of this paragraph 4.5.8, only one adjustment shall be made
and each such adjustment shall be the amount of adjustment that has the highest
absolute value.
(l) EFFECT OF CONVERSION OR EXCHANGE. From and
after the date a share of Series B Preferred Stock is converted pursuant to
paragraph 4.5.8(a) or exchanged pursuant to paragraph 4.5.8(b), dividends on
such shares of Series B Preferred Stock shall cease to accrue, and said shares
shall no longer be deemed to be outstanding and all rights of the holders
thereof as a holder of Series B Preferred Stock (except the right to receive
from the Corporation the Common Stock) shall cease except as otherwise provided
herein.
(m) NOTICE OF CERTAIN ACTIONS. In case:
(i) of a consolidation or merger to
which the Corporation is a party and for which approval of any
stockholders of the Corporation is required; or
(ii) of the voluntary or involuntary
dissolution, liquidation or winding up of the Corporation; or
(iii) of the sale, exchange or other
conveyance (for cash, shares of stock, securities or other
consideration) of all or substantially
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all the property and assets of the Corporation except to a wholly-owned
subsidiary,
then, in each case, the Corporation shall provide notice thereof to each holder
of the Series B Preferred Stock in the manner set forth in paragraph 4.5.10(b)
hereof not less than 10 nor more than 60 days prior to the applicable record
date as herein specified. Such notice shall state the date on which any
reclassification, consolidation, merger, sale, conveyance, dissolution,
liquidation or winding up is expected to become effective, if known, and the
date as of which it is expected that holders of Common Stock of record shall be
entitled to exchange their Common Stock for securities or other property
deliverable upon such reclassification, consolidation, merger, sale, conveyance,
dissolution, liquidation or winding up, if known. Failure to give the notice
specified hereunder shall have no effect on the status or effectiveness of the
action to which the required notice relates.
4.5.9 VOTING. The shares of Series B Preferred
Stock shall have no voting rights except as required by law except that the
Corporation shall not, without the affirmative vote at a meeting or the written
consent with or without a meeting of the holders of a majority of the then
outstanding shares of Series B Preferred Stock, voting as a separate class, (i)
amend, alter or repeal any of the provisions of the Certificate of Incorporation
(including, without limitation this paragraph 4.5), so as in any such case to
materially adversely affect the preferences, special rights, powers or
privileges of the shares of Series B Preferred Stock, or (ii) create any class
or series of Senior Securities as long as any shares of Series B Preferred Stock
remain outstanding.
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59
4.5.10 CONVERSION PRICE CALCULATION ON RESET DATE
Percentage of Aggregate Principal
Amount of Senior Notes Issued on
the Issue Date (after giving effect to
all post-Closing adjustments
contemplated by Section 1.2
Recapitalization of the Agreement)
represented by Principal Indebtedness
Attributable to Senior Conversion Price Reset
Notes on the Reset Date on Reset Date
----------------------- -------------
100% $32.11
91% $32.47
77% $33.01
64% $33.44
59% $33.72
55% $33.90
50% $34.08
32% $34.80
23% $35.15
14% $35.51
9% $35.69
0% $36.05
For purposes of this paragraph 4.5, the Reset Date means March 29, 2001.
If the percentage of the aggregate principal amount of Senior Notes issued on
the Issue Date represented by Principal Indebtedness Attributable to Senior
Notes on the Reset Date is other than as set forth above, the reset Conversion
Price shall be ratably calculated by the Corporation based on the values set
forth above. The reset Conversion Price shall be rounded to the nearest $.01.
4.5.11 GENERAL PROVISIONS. (a) The headings of the
paragraphs, subparagraphs, clauses and subclauses of this paragraph 4.5 are for
convenience of reference only and shall not define, limit or affect any of the
provisions hereof.
(b) Whenever any provision hereof provides for
notice to be given by the Corporation to the holders of shares of Series B
Preferred Stock, such notice shall be sent by first class mail to each holder of
record of Series B Preferred Stock at each such holder's address as the same
appears on the stock register of the Corporation. Any such notice that is mailed
in the manner herein provided shall be
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60
conclusively presumed to have been duly given on the date mailed whether or not
the holder receives the notice.
(c) The shares of Series B Preferred Stock as
well as any other securities issued by the Corporation in respect of or upon
conversion of the shares of Series B Preferred Stock shall bear such legend as
may be required under the terms of any agreement to which the holder of such
shares and the Corporation may be a party.
ARTICLE V
BOARD OF DIRECTORS
5.1 The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors. The number of
directors of the Corporation shall be as from time to time fixed by, or in the
manner provided in, the By-laws of the Corporation. The directors shall be
divided into three classes, designated Class I, Class II and Class III. Each
class shall consist, as nearly as may be possible, of one-third of the total
number of directors constituting the entire Board of Directors. The term of the
initial Class I directors shall terminate on the date of the 2003 annual meeting
of stockholders; the term of the initial Class II directors shall terminate on
the date of the 2004 annual meeting of stockholders and the term of the initial
Class III directors shall terminate on the date of the 2005 annual meeting of
stockholders. At each annual meeting of stockholders beginning in 2003,
successors to the class of directors whose term expires at that annual meeting
shall be elected for a three-year term. If the number of directors is changed,
any increase or decrease shall be apportioned among the classes so as to
maintain the number of directors in each class as nearly equal as possible, and
any additional directors of any class elected to fill a vacancy resulting from
an increase in such class shall hold office for a term that shall coincide with
the remaining term of that class, but in no case will a decrease in the number
of directors shorten the term of any incumbent director. A director shall hold
office until the annual meeting for the year in which such director's term
expires and until such director's successor shall be elected and shall qualify,
subject, however, to prior death, resignation, retirement, disqualification or
removal from office.
5.2 Any vacancy on the Board of Directors, howsoever
resulting, may be filled by a majority of the directors then in office, even if
less than a quorum, or by a sole remaining director. Any director elected to
fill a vacancy shall hold office for a term that shall coincide with the term of
the class to which such director shall have been elected.
5.3 Notwithstanding the foregoing, whenever the holders
of any one or more classes or series of Preferred Stock issued by the
Corporation shall have the
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right, voting separately by class or series, to elect directors at an annual or
special meeting of stockholders, the election, term of office, filling of
vacancies and other features of such directorships shall be governed by the
terms of this Restated Certificate of Incorporation or the resolution or
resolutions adopted by the Board of Directors pursuant to Article IV applicable
thereto, and such directors so elected shall not be divided into classes
pursuant to this Article V unless expressly provided by such terms.
ARTICLE VI
REMOVAL OF DIRECTORS
Subject to the rights, if any, of the holders of shares of Preferred
Stock then outstanding, any or all of the directors of the Corporation may be
removed from office at any time, but only for cause and only by the affirmative
vote of the holders of two- thirds (66-2/3%) of the outstanding shares of the
Corporation then entitled to vote generally in the election of directors,
considered for purposes of this Article VI as one class.
ARTICLE VII
PROHIBITION ON ACTIONS BY WRITTEN CONSENT
OF STOCKHOLDERS
Any action required or permitted to be taken at any annual or special
meeting of stockholders may be taken only upon the vote of the stockholders at
an annual or special meeting duly noticed and called, as provided in the By-laws
of the Corporation, and may not be taken by a written consent of the
stockholders pursuant to the GCL.
ARTICLE VIII
SPECIAL MEETINGS OF STOCKHOLDERS
Special meetings of the stockholders of the Corporation for any purpose
or purposes may be called at any time by the Board of Directors, the Chairman of
the Board of Directors or the President. Special meetings of the stockholders of
the Corporation may not be called by any other person or persons.
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62
ARTICLE IX
CERTAIN TRANSACTIONS
9.1 In addition to any affirmative vote required by law
or this Restated Certificate of Incorporation or the By-laws of the Corporation,
and except as otherwise expressly provided in paragraph 9.2 hereof, a Business
Combination (as hereinafter defined) with, or proposed by or on behalf of, any
Interested Stockholder (as hereinafter defined) or any Affiliate or Associate
(as hereinafter defined) of any Interested Stockholder or any person who
thereafter would be an Affiliate or Associate of such Interested Stockholder
shall require the affirmative vote of not less than sixty- six and two-thirds
percent (66-2/3%) of the votes entitled to be cast by the holders of all the
then outstanding shares of Voting Stock (as hereinafter defined), voting
together as a single class, excluding Voting Stock beneficially owned by any
Interested Stockholder or any Affiliate or Associate of such Interested
Stockholder. Such affirmative vote shall be required notwithstanding the fact
that no vote may be required, or that a lesser percentage or separate class vote
may be specified, by law or in any agreement with any national securities
exchange or otherwise.
9.2 The provisions of paragraph 9.1 hereof shall not be
applicable to any particular Business Combination, and such Business Combination
shall require only such affirmative vote, if any, as is required by law or any
other provision of this Restated Certificate of Incorporation or the By-laws of
the Corporation, if all of the conditions specified in either of the following
paragraphs 9.2.1 or 9.2.2 are met:
9.2.1 The Business Combination shall have been
approved by a majority of the Continuing Directors (as hereinafter defined).
9.2.2 All of the following conditions shall have
been met:
(a) The aggregate amount of the cash and the
Fair Market Value (as hereinafter defined) as of the date of the
consummation of the Business Combination of consideration other than
cash to be received per share by holders of Common Stock in such
Business Combination shall be at least equal to the highest amount
determined under clauses (i) and (ii) below:
(i) (if applicable) the highest per share price
(including any brokerage commissions,
transfer taxes and soliciting dealers' fees)
paid by or on behalf of the Interested
Stockholder for any share of Common Stock in
connection with the acquisition by the
Interested Stockholder of beneficial
ownership of shares of Common Stock acquired
by it (x) within the two-year period
immediately prior to the first public
announcement
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of the proposed Business Combination (the
"Announcement Date") or (y) in the
transaction in which it became an Interested
Stockholder, whichever is higher, in either
case as adjusted for any subsequent stock
split, stock dividend, subdivision or
reclassification with respect to the Common
Stock; and
(ii) the Fair Market Value per share of Common
Stock on the Announcement Date or on the
date on which the Interested Stockholder
became an Interested Stockholder (the
"Determination Date"), whichever is higher,
as adjusted for any subsequent stock split,
stock dividend, subdivision or
reclassification with respect to the Common
Stock.
(b) The aggregate amount of the cash and the
Fair Market Value as of the date of the consummation of the Business
Combination of consideration other than cash to be received per share
by holders of shares of any class or series of outstanding Capital
Stock (as hereinafter defined), other than Common Stock, shall be at
least equal to the highest amount determined under clauses (i), (ii)
and (iii) below:
(i) (if applicable) the highest per share price
(including any brokerage commissions,
transfer taxes and soliciting dealers' fees)
paid by or on behalf of the Interested
Stockholder for any share of such class or
series of Capital Stock in connection with
the acquisition by the Interested
Stockholder of beneficial ownership of
shares of such class or series of Capital
Stock (x) within the two- year period
immediately prior to the Announcement Date
or (y) in the transaction in which it became
an Interested Stockholder, whichever is
higher, in either case as adjusted for any
subsequent stock split, stock dividend,
subdivision or reclassification with respect
to such class or series of Capital Stock;
(ii) the Fair Market Value per share of such
class or series of Capital Stock on the
Announcement Date or on the Determination
Date, whichever is higher, as adjusted for
any subsequent stock split, stock dividend,
subdivision or reclassification with respect
to such class or series of Capital Stock;
and
(iii) (if applicable) the highest preferential
amount per share to which the holders of
shares of such class or series of
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64
Capital Stock would be entitled in the event
of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of
the Corporation regardless of whether the
Business Combination to be consummated
constitutes such an event.
The provisions of this paragraph 9.2.2 shall be required to be
met with respect to every class or series of outstanding
Capital Stock, whether or not the Interested Stockholder has
previously acquired beneficial ownership of any shares of a
particular class or series of Capital Stock.
(c) The consideration to be received by holders
of a particular class or series of outstanding Capital Stock shall be
in cash or in the same form as previously has been paid by or on behalf
of the Interested Stockholder in connection with its direct or indirect
acquisition of beneficial ownership of shares of such class or series
of Capital Stock. If the consideration so paid for shares of any class
or series of Capital Stock varied as to form, the form of consideration
for such class or series of Capital Stock shall be either cash or the
form used to acquire beneficial ownership of the largest number of
shares of such class or series of Capital Stock previously acquired by
the Interested Stockholder.
(d) After the Determination Date and prior to
the consummation of such Business Combination: (i) except as approved
by a majority of the Continuing Directors, there shall have been no
failure to declare and pay at the regular date therefor any full
quarterly dividends (whether or not cumulative) payable in accordance
with the terms of any outstanding Capital Stock; (ii) there shall have
been no reduction in the annual rate of dividends paid on the Common
Stock (except as necessary to reflect any stock split, stock dividend
or subdivision of the Common Stock), except as approved by a majority
of the Continuing Directors; (iii) there shall have been an increase in
the annual rate of dividends paid on the Common Stock as necessary to
reflect any reclassification (including any reverse stock split),
recapitalization, reorganization or any similar transaction that has
the effect of reducing the number of outstanding shares of Common
Stock, unless the failure so to increase such annual rate is approved
by a majority of the Continuing Directors; and (iv) such Interested
Stockholder shall not have become the beneficial owner of any
additional shares of Capital Stock except as part of the transaction
that result in such Interested Stockholder becoming an Interested
Stockholder and except in a transaction that, after giving effect
thereto, would not result in any increase in the Interested
Stockholder's percentage beneficial ownership of any class or series of
Capital Stock.
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(e) A proxy or information statement describing
the proposed Business Combination and complying with the requirements
of the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (the "Act") (or any subsequent provisions
replacing such Act, rules or regulations) shall be mailed to all
stockholders of the Corporation at least 30 days prior to the
consummation of such Business Combination (whether or not such proxy or
information statement is required to be mailed pursuant to such Act or
subsequent provisions). The proxy or information statement shall
contain on the first page thereof, in a prominent place, any statement
as to the advisability (or inadvisability) of the Business Combination
that the Continuing Directors, or any of them, may choose to make and,
if deemed advisable by a majority of the Continuing Directors, an
opinion of an investment banking firm selected by a majority of the
Continuing Directors as to the fairness (or unfairness) of the terms of
the Business Combination from a financial point of view to the holders
of the outstanding shares of Capital Stock other than the Interested
Stockholder and its Affiliates or Associates, such investment banking
firm to be paid a reasonable fee for its services by the Corporation.
(f) Such Interested Stockholder shall not have
made any major change in the Corporation's business or equity capital
structure without the approval of a majority of the Continuing
Directors.
9.3 The following definitions shall apply with respect to
this Article IX:
"BUSINESS COMBINATION" shall mean (a) any merger or
consolidation of the Corporation or any Subsidiary (as hereinafter defined) with
(i) any Interested Stockholder or (ii) any other company (whether or not itself
an Interested Stockholder) which is or after such merger or consolidation would
be an Affiliate or Associate of an Interested Stockholder; or (b) any sale,
lease, exchange, mortgage, pledge, transfer or other disposition or security
arrangement, investment, loan, advance, guarantee, agreement to purchase,
agreement to pay, extension of credit, joint venture participation or other
arrangement (in one transaction or a series of transactions) with or for the
benefit of any Interested Stockholder or any Affiliate or Associate of any
Interested Stockholder involving any assets, securities or commitments of the
Corporation, any Subsidiary or any Interested Stockholder or any Affiliate or
Associate of any Interested Stockholder (except for any arrangement, whether as
employee, consultant or otherwise, other than as a director, pursuant to which
any Interested Stockholder or any Affiliate or Associate thereof shall, directly
or indirectly, have any control over or responsibility for the management of any
aspect of the business or affairs of the Corporation, with respect to which
arrangements the value tests set forth below shall not apply), together with all
other
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such arrangements (including all contemplated future events), has an aggregate
Fair Market Value and/or involves aggregate commitments of $5,000,000 or more or
constitutes more than 5 percent of the book value of the total assets (in the
case of transactions involving assets or commitments other than capital stock)
or 5 percent of the stockholders' equity (in the case of transactions in capital
stock) of the entity in question (the "Substantial Part"), as reflected in the
most recent fiscal year-end consolidated balance sheet of such entity existing
at the time the stockholders of the Corporation would be required to approve or
authorize the Business Combination involving the assets, securities and/or
commitments constituting any Substantial Part; or (c) the adoption of any plan
or proposal for the liquidation or dissolution of the Corporation or for any
amendment to the Corporation's By-laws; or (d) any reclassification of
securities (including any reverse stock split), or recapitalization of the
Corporation, or any merger or consolidation of the Corporation with any of its
Subsidiaries or any other transaction (whether or not with or into or otherwise
involving an Interested Stockholder) that has the effect, directly or
indirectly, of increasing the proportionate share of any class or series of
Capital Stock, or any securities convertible into Capital Stock or into equity
securities of any Subsidiary, that is beneficially owned by any Interested
Stockholder or any Affiliate or Associate of any Interested Stockholder; or (e)
any agreement, contract or other arrangement providing for any one or more of
the actions specified in the foregoing clauses (a) to (d).
"CAPITAL STOCK" shall mean all capital stock of the
Corporation authorized to be issued from time to time under Article IV of this
Restated Certificate of Incorporation, and the term "Voting Stock" shall mean
all Capital Stock which by its terms may be voted on all matters submitted to
stockholders of the Corporation generally.
"PERSON" shall mean any individual, firm, company or other
entity and shall include any group comprised of any person and any other person
with whom such person or any Affiliate or Associate of such person has any
agreement, arrangement or understanding, directly or indirectly, for the purpose
of acquiring, holding, voting or disposing of Capital Stock.
"INTERESTED STOCKHOLDER" shall mean any person (other than the
Corporation or any Subsidiary and other than any profit-sharing, employee stock
ownership or other employee benefit plan of the Corporation or any Subsidiary or
any trustee of or fiduciary with respect to any such plan when acting in such
capacity) who (a) is or has announced or publicly disclosed a plan or intention
to become the beneficial owner of Voting Stock representing fifteen percent
(15%) or more of the votes entitled to be cast by the holders of all then
outstanding shares of Voting Stock; or (b) is an Affiliate or Associate of the
Corporation and at any time within the two- year period immediately prior to the
date in question was the beneficial owner of Voting Stock representing fifteen
percent (15%) or more of the votes entitled to be cast by the holders of all
then outstanding shares of Voting Stock.
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A person shall be a "BENEFICIAL OWNER" of any Voting Stock:
(a) which such person or any of its Affiliates or Associates beneficially owns,
directly or indirectly; (b) which such person or any of its Affiliates or
Associates has, directly or indirectly, (i) the right to acquire (whether such
right is exercisable immediately or subject only to the passage of time),
pursuant to any agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or otherwise, or (ii)
the right to vote pursuant to any agreement, arrangement or understanding; or
(c) which is beneficially owned, directly or indirectly, by any other person
with which such person or any of its Affiliates or Associates has any agreement,
arrangement or understanding for the purpose of acquiring, holding, voting or
disposing of any shares of Capital Stock. For the purposes of determining
whether a person is an Interested Stockholder as defined in paragraph 9.3
hereof, the number of shares of Capital Stock deemed to be outstanding shall
include shares deemed beneficially owned by such person through applications of
this paragraph, but shall not include any other shares of Capital Stock that may
be issuable pursuant to an agreement, arrangement or understanding, or upon
exercise of conversion rights, warrants or options, or otherwise.
"AFFILIATE" or "ASSOCIATE" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under
the Act, as in effect on September 22, 2000 (the term "registrant" in said Rule
12b-2 meaning in this case the Corporation).
"SUBSIDIARY" means any company of which a majority of any
class of equity security is beneficially owned by the Corporation; PROVIDED,
HOWEVER, that for the purposes of the definition of Interested Stockholder set
forth in paragraph 9.3 hereof, the term "Subsidiary" shall mean only a company
of which a majority of each class of equity security is beneficially owned by
the Corporation.
"CONTINUING DIRECTOR" means any member of the Board of
Directors of the Corporation, while such person is a member of the Board of
Directors, who is not an Affiliate or Associate or representative of the
Interested Stockholder and was a member of the Board of Directors prior to the
time that the Interested Stockholder became an Interested Stockholder, and any
successor of a Continuing Director while such successor is a member of the Board
of Directors, who is not an Affiliate or Associate or representative of the
Interested Stockholder and is recommended or elected to succeed the Continuing
Director by a majority of Continuing Directors.
"FAIR MARKET VALUE" means: (a) in the case of cash, the amount
of such cash; (b) in the case of stock, the highest closing sale price during
the 30-day period immediately preceding the date in question of a share of such
stock on the Composite Tape for New York Stock Exchange-Listed Stocks, or, if
such stock is not quoted on the Composite Tape, on the New York Stock Exchange,
or, if such stock is not listed on such Exchange, on the principal United States
securities exchange registered under the Act on which such stock is listed or,
if such stock is not listed on any such
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exchange, the highest closing bid quotation with respect to a share of such
stock during the 30-day period preceding the date in question on the National
Association of Securities Dealers, Inc. Automated Quotations System, in the pink
sheets of the National Quotation Bureau or any similar system then in use, or if
no such quotations are available, the fair market value on the date in question
of a share of such stock as determined by a majority of the Continuing Directors
in good faith; and (c) in the case of property other than cash or stock, the
fair market value of such property on the date in question as determined in good
faith by a majority of the Continuing Directors.
In the event of any Business Combination in which the
Corporation survives, the phrase "CONSIDERATION OTHER THAN CASH TO BE RECEIVED"
as used in paragraphs 9.2.2(a) and 9.2.2(b) hereof shall include the shares of
Common Stock and/or the shares of any other class or series of Capital Stock
retained by the holders of such shares.
9.4 A majority of the Continuing Directors shall have the
power and duty to determine for the purpose of this Article IX, on the basis of
information known to them after reasonable inquiry, all questions arising under
this Article IX, including, without limitation, (a) whether a person is an
Interested Stockholder, (b) the number of shares of Capital Stock or other
securities beneficially owned by any person, (c) whether a person is an
Affiliate or Associate of another, (d) whether a Proposed Action (as hereinafter
defined) is with, or proposed by, or on behalf of an Interested Stockholder or
an Affiliate or Associate of an Interested Stockholder, (e) whether the assets
that are the subject of any Business Combination have, or the consideration to
be received for the issuance or transfer of securities by the Corporation or any
Subsidiary in any Business Combination has, an aggregate Fair Market Value of
$5,000,000 or more, and (f) whether the assets or securities that are the
subject of any Business Combination constitute a Substantial Part. Any such
determination made in good faith shall be binding and conclusive on all parties.
The good faith determination of a majority of the Continuing Directors on such
matters shall be conclusive and binding for all purposes of this Article IX.
9.5 Nothing contained in this Article IX shall be
construed to relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
9.6 The fact that any Business Combination complies with
the provisions of 9.2 hereof shall not be construed to impose any fiduciary
duty, obligation or responsibility on the Board of Directors, or any member
thereof, to approve such Business Combination or recommend its adoption or
approval to the stockholders of the Corporation, nor shall such compliance
limit, prohibit or otherwise restrict in any manner the Board of Directors, or
any member thereof, with respect to evaluations of or actions and responses
taken with respect to such Business Combination.
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9.7 For the purposes of this Article IX, a Business
Combination or any proposal to amend, repeal or adopt any provision of this
Restated Certificate of Incorporation inconsistent with this Article IX
(collectively, "Proposed Action") is presumed to have been proposed by, or on
behalf of, an Interested Stockholder or an Affiliate or Associate of an
Interested Stockholder or a person who thereafter would become such if (1) after
the Interested Stockholder became such, the Proposed Action is proposed
following the election of any director of the Corporation who with respect to
such Interested Stockholder, would not qualify to serve as a Continuing Director
or (2) such Interested Stockholder, Affiliate, Associate or person votes for or
consents to the adoption of any such Proposed Action, unless as to such
Interested Stockholder, Affiliate, Associate or person a majority of the
Continuing Directors makes a good faith determination that such Proposed Action
is not proposed by or on behalf of such Interested Stockholder, Affiliate,
Associate or person, based on information known to them after reasonable
inquiry.
9.8 Notwithstanding any other provisions of this Restated
Certificate of Incorporation or the By-laws of the Corporation (and
notwithstanding the fact that a lesser percentage or separate class vote may be
specified by law, this Restated Certificate of Incorporation or the By-laws of
the Corporation), any proposal to amend, repeal or adopt any provision of this
Restated Certificate of Incorporation inconsistent with this Article IX which is
proposed by or on behalf of an Interested Stockholder or an Affiliate or
Associate of an Interested Stockholder shall require the affirmative vote of the
holders of not less than sixty-six and two-thirds percent (66-2/3%) of the votes
entitled to be cast by the holders of all the then outstanding shares of Voting
Stock, voting together as a single class, excluding Voting Stock beneficially
owned by such Interested Stockholder; PROVIDED, HOWEVER, that this paragraph 9.8
shall not apply to, and such sixty-six and two-thirds percent (66-2/3%) vote
shall not be required for, any amendment, repeal or adoption unanimously
recommended by the Board of Directors if all of such directors are persons who
would be eligible to serve as Continuing Directors within the meaning of such
term as set forth in paragraph 9.3 hereof.
ARTICLE X
LIMITATION ON LIABILITY
No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for any breach of fiduciary
duty by such a director as a director. Notwithstanding the foregoing sentence, a
director shall be liable to the extent provided by applicable law (i) for any
breach of the director's duty of loyalty to the Corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the
GCL or (iv) for any transaction from which the director derived an improper
personal benefit. No amendment to or repeal to this
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Article X 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.
ARTICLE XI
ACTIONS WITH RESPECT TO BY-LAWS
In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to adopt, repeal, alter,
amend or rescind the By-laws of the Corporation. In addition, the By-laws of the
Corporation may be adopted, repealed, altered, amended, or rescinded by the
affirmative vote of sixty-six and two-thirds percent (66-2/3%) of the
outstanding stock of the Corporation entitled to vote thereon.
ARTICLE XII
MODIFICATION OF CERTAIN PROVISIONS OF
THIS RESTATED CERTIFICATE OF INCORPORATION
Notwithstanding anything contained in this Restated Certificate of
Incorporation to the contrary, the affirmative vote of the holders of at least
sixty-six and two-thirds percent (66-2/3%) of the Voting Stock, voting together
as a single class, shall be required to amend, repeal or adopt any provision
inconsistent with Articles V, VII, VIII, IX, X and XI of this Restated
Certificate of Incorporation.
ARTICLE XIII
FURTHER ACTIONS WITH RESPECT TO
THIS RESTATED CERTIFICATE OF INCORPORATION
The Corporation reserves the right to repeal, alter, amend, or rescind
any provision contained in this Restated Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred on
stockholders herein are granted subject to this reservation.
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ARTICLE XIV
EXHIBITS
14.1 EXHIBIT 4.4A
NOTICE OF CONVERSION
(To be Executed by the Holder of Shares of 8.5% Preferred Stock, Series A
in order to Convert the 8.5% Preferred Stock, Series A)
The undersigned (the "Holder") hereby irrevocably elects to convert
______ shares of 8.5% Preferred Stock, Series A, represented by stock
certificate No(s). __________ into shares of Common Stock according to the terms
and conditions of the Certificate of Designation, as of the date written below.
If securities are to be issued in the name of a person other than the
undersigned, the undersigned will pay all transfer taxes payable with respect
thereto and is delivering herewith such certificates. No fee will be charged to
the Holder for any conversion, except for transfer taxes, if any.
The Holder hereby represents and warrants that it has satisfied or will
have satisfied prior to the issuance of shares of Common Stock upon conversion
of the 8.5% Preferred Stock, Series A any and all legal and regulatory
requirements for conversion, including compliance with the HSR Act.
The Corporation shall electronically transmit the Common Stock issuable
pursuant to this Notice of Conversion to the account of the undersigned or its
nominee with The Depository Trust Company ("DTC") through its Deposit Withdrawal
Agent Commission system ("DWAC Transfer").
Name of DTC Prime Broker:
Account Number:
[ ] In lieu of receiving shares of Common Stock issuable
pursuant to this Notice of Conversion by way of a
DWAC Transfer, the undersigned hereby requests that
the Corporation issue a certificate or certificates
for the number of shares of Common Stock set forth
above (which numbers are based on the Holder's
calculation attached hereto) in the name(s) specified
immediately below or, if additional space is
necessary, on an attachment hereto:
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Name:
Address:
The Holder hereby represents and warrants that all offers and sales by
the undersigned of the securities issuable to the undersigned upon conversion of
the 8.5% Preferred Stock, Series A shall be made pursuant to registration of the
securities under the Securities Act and any applicable state securities laws, or
pursuant to an applicable exemption from registration under the Securities Act
and any applicable state securities laws.
Date of Conversion:
Conversion Rate:
Number of Shares of
Common Stock to be Issued:
Signature:
Name:
Address:
* The Corporation is not required to issue shares of Common Stock until
the original Preferred Stock Certificate(s) (or evidence of loss, theft
or destruction thereof) to be converted are received by the Corporation
or its transfer agent.
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IN WITNESS WHEREOF, ATX Telecommunications Services, Inc. has caused this
Restated Certificate of Incorporation to be signed by Thomas Gravina, its Co-
President, Co-Chief Operating Officer and Assistant Secretary, this 29th day of
September, 2000.
ATX TELECOMMUNICATIONS SERVICES, INC.
By: /s/ Thomas Gravina
---------------------------------------
Thomas Gravina
Co-President, Co-Chief Operating Officer and
Assistant Secretary
