<PAGE> 1
FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Quarterly Report Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
For Quarter Ended March 31, 1994
Commission file number 1-1941
BETHLEHEM STEEL CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE
(State of incorporation) 24-0526133
(I.R.S. Employer
Identification No.)
1170 Eighth Avenue
BETHLEHEM, PENNSYLVANIA 18016-7699
(Address of principal (Zip Code)
executive offices)
Registrant's telephone number, including area code:
(610) 694-2424
Indicate by check mark whether the registrant (1) has filed
all reports required to be filed by Section 13 or 15(d) of
the Securities Exchange Act of 1934 during the preceding 12
months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days.
Yes X No
Number of Shares of Common Stock Outstanding as of May 6,
1994: 109,048,327
<PAGE>
<PAGE> 2
BETHLEHEM STEEL CORPORATION AND CONSOLIDATED SUBSIDIARIES
INDEX
Page No.
PART I. Financial Information
Consolidated Statements of Income-
Three Months Ended March 31, 1994
and 1993 (unaudited). . . . . . . . . . . . . . . 2
Consolidated Balance Sheets-
March 31, 1994 (unaudited), December 31, 1993
and March 31, 1993 (unaudited). . . . . . . . . . 3
Consolidated Statements of Cash Flows-
Three Months Ended March 31, 1994 and
1993 (unaudited). . . . . . . . . . . . . . . . . 4
Notes to Consolidated Financial Statements . . . . . 5
Management's Discussion and Analysis of Results of
Operations and Financial Condition. . . . . . . . 6
PART II. Other Information
Item 1. Legal Proceedings. . . . . . . . . . . . 10
Item 4. Submission of Matters to a
Vote of Security Holders . . . . . . . . 10
Item 6. Exhibits and Reports on Form 8-K . . . . 12
Signatures . . . . . . . . . . . . . . . . . . . . . 13
<PAGE>
<PAGE> 3
Bethlehem Steel Corporation
CONSOLIDATED STATEMENTS OF INCOME
(dollars and shares in millions, except per share data)
(unaudited)
Three Months Ended
March 31
-------------------
1994 1993
---- ----
Net Sales $1,131.2 $1,020.4
-------- --------
Costs and Expenses:
Cost of sales 1,005.2 946.4
Depreciation 65.5 66.4
Selling, administration and general expense 34.4 40.0
-------- --------
Total Costs and Expenses 1,105.1 1,052.8
-------- --------
Income (Loss) from Operations 26.1 (32.4)
Financing Income (Expense):
Interest and other financing costs (13.6) (16.5)
Interest and other income 1.9 1.6
-------- --------
Income (Loss) before Income Taxes 14.4 (47.3)
Benefit (Provision) for Income Taxes (1.5) 6.5
-------- --------
Net Income (Loss) 12.9 (40.8)
Dividends on Preferred and Preference Stock 10.8 7.5
-------- --------
Net Income (Loss) Applicable to Common Stock $ 2.1 $ (48.3)
======== =========
Net Income (Loss) per Common Share $ 0.02 $ (0.53)
Average Primary Shares Outstanding 95.1 90.6
The accompanying Notes are an integral part of the
Consolidated Financial Statements.
- 2 -<PAGE>
<PAGE> 4
Bethlehem Steel Corporation
CONSOLIDATED BALANCE SHEETS
(dollars in millions)
ASSETS
March 31 December 31 March 31
1994 1993 1993
(unaudited) (unaudited)
----------- ---------- ----------
Current Assets:
Cash and cash equivalents $ 206.3 $ 228.9 $ 190.3
Receivables, less allowances 471.0 503.2 462.7
Inventories:
Raw materials 309.9 341.9 342.4
Finished and semifinished 542.1 494.8 448.8
Contract work-in-progress, less
billings 22.2 15.8 26.2
-------- -------- ---------
874.2 852.5 817.4
Other current assets 6.9 6.5 10.6
-------- -------- ---------
Total Current Assets 1,558.4 1,591.1 1,481.0
Investments and Miscellaneous Assets 118.3 124.0 153.8
Property, Plant and Equipment,
less accumulated depreciation of
$4,087.2, $4,107.0 and $4,311.3 2,631.0 2,634.3 2,793.5
Deferred Income Tax Asset - net 926.2 926.7 836.2
Intangible Asset - Pensions 583.9 600.6 224.5
--------- --------- ---------
Total Assets $ 5,817.8 $ 5,876.7 $ 5,489.0
========= ========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities:
Accounts payable $ 405.1 $ 360.9 $ 348.8
Accrued employment costs 267.3 262.4 255.9
Accrued taxes 62.4 65.4 57.5
Debt and capital lease obligations 95.0 95.5 82.2
Other current liabilities 112.7 130.0 119.7
--------- -------- ---------
Total Current Liabilities 942.5 914.2 864.1
Pension Liability 1,253.9 1,613.6 1,077.8
Postretirement Benefits Other Than
Pensions 1,451.5 1,448.3 1,429.1
Long-term Debt and Capital Lease
Obligations 696.3 718.3 670.4
Other Long-term Liabilities 419.9 485.7 459.0
Stockholders' Equity:
Preferred Stock 11.6 11.6 11.6
Preference Stock 2.7 2.8 2.7
Common Stock (Note 2) 110.9 93.4 92.6
Common Stock held in treasury at cost (59.5) (59.7) (59.7)
Additional paid-in capital 1,915.1 1,588.4 1,655.8
Retained deficit (927.1) (939.9) (714.4)
--------- --------- ---------
Total Stockholders' Equity 1,053.7 696.6 988.6
--------- --------- ---------
Total Liabilities and Stockholders' Equity $ 5,817.8 $ 5,876.7 $ 5,489.0
========= ========= =========
The accompanying Notes are an integral part of the
Consolidated Financial Statements.
- 3 -
<PAGE>
<PAGE> 5 Bethlehem Steel Corporation
CONSOLIDATED STATEMENTS OF CASH FLOWS
(dollars in millions)
(unaudited)
Three Months Ended
March 31
------------------
1994 1993
---- ----
Operating Activities:
Net income (loss) $ 12.9 $ (40.8)
Adjustments for items not affecting cash
from operating activities:
Depreciation 65.5 66.4
Deferred Income Taxes 0.5 (7.0)
Other - net 2.9 0.5
Working capital (excluding financing and
investing activities):
Receivables 32.2 (59.4)
Inventories (21.7) 35.1
Accounts payable 44.8 (20.6)
Employment costs and other (16.0) (31.1)
Other - net 4.5 8.4
-------- --------
Cash Provided from (Used for)
Operating Activities 125.6 (48.5)
-------- --------
Investing Activities:
Capital expenditures (118.8) (61.9)
Cash proceeds from sale of businesses
and assets 2.1 3.5
Other - net 3.5 (1.9)
-------- --------
Cash Used for Investing Activities (113.2) (60.3)
-------- --------
Financing Activities:
Pension expense 55.9 52.1
Pension funding (406.0) (149.1)
Revolving and other credit borrowings
(payments) - net - (55.0)
Long-term debt and capital lease borrowings 6.5 27.3
Long-term debt and capital lease payments (29.0) (15.9)
Restructured facilities payments (7.6) (11.3)
Preferred stock issued - 248.4
Common stock issued 355.3 -
Cash dividends paid (10.1) (5.6)
-------- --------
Cash (Used for) Provided from
Financing Activities (35.0) 90.9
-------- --------
Net Decrease in Cash and Cash Equivalents (22.6) (17.9)
Cash and Cash Equivalent- Beginning of Period 228.9 208.2
-------- --------
- End of Period $ 206.3 $ 190.3
======== ========
Supplemental Cash Payment Information:
Interest, net of amount capitalized $ 18.7 $ 19.5
Income taxes $ 0.1 $ 5.6
The accompanying Notes are an integral part of the
Consolidated Financial Statements.
- 4 -
<PAGE>
<PAGE> 6 NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. Segment Results (dollars in millions):
(unaudited)
1994 1993
-------- -----------------------------------------
First Fourth Third Second First
Quarter Quarter Quarter Quarter Quarter
-------- -----------------------------------------
Net Sales:
Basic Steel Operations $ 1,125.7 $ 1,112.2 $ 1,029.3 $ 1,077.3 $1,000.4
Steel Related Operations 10.1 21.7 29.8 43.3 24.8
Eliminations (4.6) (3.6) (3.8) (3.) (4.8)
--------- --------- --------- -------- --------
Total $ 1,131.2 $ 1,130.3 $ 1,055.3 $ 1,117.4 $1,020.4
========= ========= ========= ========= ========
Operating Income (Loss):
Basic Steel Operations $ 35.8 $ (278.7)*$ 32.0 $ 1.4 $ (28.3)
Steel Related Operations (9.7) (5.2) (8.6) (3.7) (4.1)
--------- --------- --------- --------- --------
Total $ 26.1 $ (283.9) $ 23.4 $ (2.3) $ (32.4)
========= ========= ========= ========= ========
Shipments
(thousands of net tons):
Basic Steel Operations 2,290 2,328 2,160 2,290 2,219
========= ========= ========= ========= ========
Raw Steel Production
(thousands of net tons):
Basic Steel Operations 2,474 2,691 2,629 2,511 2,447
========= ========= ========= ========= ========
* Operating income for the Basic Steel segment was $76.4 million, excluding
the $350 million charge ($290 million after tax) recorded in the fourth
quarter of 1993. The restructuring loss was principally for a revised
modernization plan for our Bethlehem Structural Products subsidiary and for
the book value of the idled coke plant at our Sparrows Point Division.
2. In March 1994, we completed a public offering of 17,250,000 shares of
Common Stock, realizing net proceeds of approximately $355 million. The
proceeds, which were contributed to our pension fund, will reduce annual
pension expense, reduce required annual pension funding, provide flexibility
regarding future annual funding and improve our financial position and capital
structure.
3. The Consolidated Financial Statements as of and for the three month
periods ended March 31, 1994 and 1993 have not been audited. However, the
information reflects all adjustments which, in the opinion of management, are
necessary to present fairly the results shown for the periods indicated.
Management believes all adjustments were of a normal recurring nature.
4. These Consolidated Financial Statements should be read together with
the 1993 audited financial statements set forth in Bethlehem's Annual Report
on Form 10-K filed with the Securities and Exchange Commission.
- 5 -
<PAGE>
<PAGE> 7
MANAGEMENT'S DISCUSSION AND
ANALYSIS OF RESULTS OF OPERATIONS AND FINANCIAL CONDITION
Review of Results:
First Quarter 1994 - First Quarter 1993
Bethlehem reported net income of $13 million, or $.02 per
common share, for the first quarter of 1994, an improvement of
$54 million over the net loss of $41 million, or $.53 per common
share, for the first quarter of 1993. Net sales for the first
quarter of 1994 increased 11% to $1,131 million from $1,020
million for the year earlier period.
The improvements in results for the first quarter of 1994
compared to the year earlier period are primarily due to
strengthened steel demand from the automotive, machinery and
light construction markets and higher realized steel prices for
hot rolled, cold rolled, coated sheet and plate products.
First quarter 1994 operating results were reduced by about
$20 million as a result of severe winter weather conditions that
adversely affected operations. This unusually harsh winter
weather resulted in lower productivity, higher costs for energy,
increased repair, maintenance and transportation costs, and
reduced shipments. The reduced shipments are expected to be made
up during the remainder of 1994. Bethlehem also incurred
approximately $10 million in increased operating costs during the
first quarter of 1994 due to blast furnace operating problems
(which have now been resolved) at Bethlehem Structural Products
Corporation. Employment costs were also about $15 million higher
during the quarter as a result of new labor agreements entered
into in 1993 and the effect that lower year-end interest rates
have on Bethlehem's 1994 pension expense. In addition, the Burns
Harbor Division incurred higher coke costs during the first
quarter in connection with the rebuild of a coke oven battery
which is scheduled for completion in early 1995. Primarily as a
result of these increased costs, which were partially offset by
higher realized steel prices, first quarter 1994 net income was
approximately $35 million lower than fourth quarter 1993 net
income of $47 million, excluding restructuring charges.
Segment Results
Basic Steel Operations. The Basic Steel Operations segment
reported income from operations of $36 million for the first
quarter of 1994 compared to a loss from operations of $28 million
for the first quarter of 1993. The substantially improved
operating results of this segment compared to the year earlier
period was due to strong demand and higher prices for flat rolled
products at the Burns Harbor and Sparrows Point Divisions. This
improvement was partially offset by the increased operating costs
discussed above.
During the first quarter, the Burns Harbor Division became
the second integrated steel producer in the nation to become
certified to the internationally recognized ISO 9002 quality
standard, following certification of the Sparrows Point Division
to this standard in 1993.
- 6 -<PAGE>
<PAGE> 8
First quarter 1994 operating results for Bethlehem
Structural Products Corporation were worse than in the first
quarter of 1993 primarily due to higher costs and lower shipments
resulting from blast furnace operating problems, severe winter
weather conditions and reduced demand for heavy structural
shapes.
First quarter 1994 operating results were also worse for
Pennsylvania Steel Technologies ("PST") compared to the year
earlier period primarily because of production outages and higher
costs arising from the severe winter weather and increased prices
for scrap for its electric furnace. Work is nearing completion
on PST's modernization program to establish it as the low cost
North American producer of high quality railroad rails and
specialty blooms. PST expects to commence producing premium head
hardened rails in September 1994.
Steel Related Operations. The Steel Related Operations
segment had losses from operations of $10 million for the first
quarter of 1994 compared to losses from operations of $4 million
for the first quarter of 1993. Losses at the BethShip Division
increased compared to the year earlier period due to a weak
market and weather related costs. BethForge, Inc. and the CENTEC
joint venture continued to experience losses in the first quarter
of 1994.
Liquidity
Cash and cash equivalents were $206 million at March 31,
1994 compared to $229 million at December 31, 1993 and $190
million at March 31, 1993. Cash provided from operating
activities was $126 million for the first quarter of 1994
compared to cash used for operating activities of $49 million in
the first quarter of 1993. Significant uses of cash during the
first quarter of 1994 included capital expenditures, pension
funding and debt repayments.
At March 31, 1994, no amounts were outstanding under
Bethlehem's 1992 revolving credit agreement and $106 million was
used for letters of credit, leaving $294 million available for
borrowing under such agreement. Bethlehem's accounts receivable
and inventories are pledged as collateral under the 1992
agreement.
During March, Bethlehem completed a public offering of 17.25
million shares of Common Stock. Bethlehem contributed the net
proceeds of $355 million together with additional amounts to its
pension fund for a total of $406 million during the first
quarter. As a result, Bethlehem's unfunded pension liability was
reduced to approximately $1,254 million at March 31, 1994
compared to $1,614 million at December 31, 1993.
Debt and capital lease obligations totalling $29 million
were repaid during the first quarter of 1994. In addition to
pension funding and capital expenditures, major uses of cash
during the remainder of 1994 include the repayment of
approximately $66 million of debt and capital lease obligations.
Bethlehem expects to maintain an adequate level of liquidity
throughout 1994 from cash flow from operations, reductions in
working capital and available borrowings under its 1992 revolving
credit agreement.
- 7 -<PAGE>
<PAGE> 9
Capital Expenditures
Capital expenditures were $119 million during the first
quarter of 1994 compared to $62 million during the first quarter
of 1993. Capital expenditures for the year 1994 are currently
estimated to be approximately $450 million compared to $327
million in 1993. The increase in capital expenditures in 1994 is
principally due to projects underway at Burns Harbor. Work is
progressing on the rebuild of a coke oven battery which is
expected to resume operation in early 1995. During the coke oven
rebuild, Burns Harbor's coke needs are being supplied by other
Bethlehem coke operations and from commercial sources.
Construction is also proceeding on a new coal injection facility
which is scheduled for completion in early 1995, and one of Burns
Harbor's two blast furnaces will be relined during the third
quarter of this year. Operating costs per ton will be higher at
Burns Harbor while these projects are underway, due primarily to
lower steel production and increased costs for purchased coke and
semifinished steel.
As previously discussed, work is nearing completion on PST's
modernization program. The program includes the installation of
state-of-the-art steelmaking facilities, including a new DC
electric arc furnace, a ladle refining furnace and a vacuum
degassing unit. PST expects to commence producing premium head
hardened rails in September 1994.
Double G Coatings
Bethlehem is participating in a joint venture known as
Double G Coatings Company, L.P., which is building a 270,000 ton
per year sheet coating line near Jackson, Mississippi. The new
line will produce galvanized and Galvalume coated sheets
primarily for the construction market. The Sparrows Point
Division will provide cold rolled coils for approximately half of
Double G's annual capacity and will be responsible for marketing
its share of the finished product. Production on the new line is
scheduled to start-up in May.
Dividends
On April 27, 1994, the Board of Directors declared dividends
of $1.25 per share on Bethlehem's $5.00 Cumulative Convertible
Preferred Stock, $0.625 per share on Bethlehem's $2.50 Cumulative
Convertible Preferred Stock and $0.875 per share on Bethlehem's
$3.50 Cumulative Convertible Preferred Stock, each payable June
10, 1994 to holders of record on May 10, 1994. No dividend was
declared on Bethlehem's Common Stock.
On April 1, 1994, Bethlehem paid the annual dividend of its
Series A and Series B Employee Stock Ownership Plan Convertible
Preference Stock in additional shares of Series A and Series B
Preference Stock having an aggregate stated value of
approximately $4.7 million.
Outlook
Despite weather related costs and blast furnace operating
problems during the first quarter and additional costs in
- 8 -<PAGE>
<PAGE> 10
connection with capital projects underway at Burns Harbor,
Bethlehem's first quarter 1994 net income marks the third
consecutive quarterly profit for Bethlehem, excluding
restructuring charges in the fourth quarter 1993. With the harsh
winter behind us, Bethlehem expects that its second quarter
results will improve over the first quarter. Demand for sheet
and plate products remains strong. The economy and steel markets
are expected to show continued strength for the balance of the
year, although the rate of growth is likely to moderate in the
second half. Industry shipments are estimated to be 89 million
tons in 1994.
- 9 -
<PAGE>
<PAGE> 11
PART II. OTHER INFORMATION
Item 1. Legal Proceedings.
Bethlehem, in the ordinary course of its business, is
the subject of various pending or threatened legal actions
involving governmental agencies or private interests. Bethlehem
believes that any ultimate liability arising from these actions
should not have a material adverse effect on its consolidated
financial position at March 31, 1994.
The following previously reported legal proceeding had
developments during the first quarter of 1994:
On December 30, 1993, the United States Environmental
Protection Agency (the "EPA") sent Bethlehem a letter alleging
that Bethlehem was in violation of the Partial Consent Decree
entered on May 20, 1991, between Bethlehem and the United States
concerning alleged violations of the Clean Air Act at the Burns
Harbor Division. The letter alleges that Bethlehem violated the
door emission limits stated in the Decree for coke oven battery
number 2 located at the facility at various times from October
1991 through September 1993 and demands payment of a stipulated
penalty. On January 18, 1994, Bethlehem and the EPA
met to discuss the demand letter and associated issues concerning
future compliance with the Decree. At the meeting, Bethlehem
provided the EPA with additional information related to the
penalty demand. On March 15, 1994, the EPA adjusted its penalty
demand and the matter was closed by Bethlehem's
payment of a penalty of $306,250 on April 6, 1994.
Item 4. Submission of Matters to a Vote of Security Holders.
The Annual Meeting of the Stockholders of Bethlehem was
held on April 26, 1994.
The following nominees for director named in the Proxy
Statement dated March 16, 1994 were elected at the Meeting by the
votes indicates:
For Withheld
Curtis H. Barnette 78,505,097 236,655
Benjamin R. Civiletti 78,511,429 230,323
Worley H. Clark 78,533,352 208,400
Herman E. Collier, Jr. 78,522,658 219,094
John B. Curcio 78,393,268 348,484
William C. Hittinger 78,484,562 257,190
Thomas L. Holton 78,517,093 224,659
Lewis B. Kaden 78,540,784 200,968
Harry P. Kamen 78,526,912 214,840
Winthrop Knowlton 78,534,948 206,804
Robert McClements, Jr. 78,534,137 207,615
Gary L. Millenbruch 78,509,108 232,644
Roger P. Penny 78,388,409 353,343
Dean P. Phypers 78,523,631 218,121
William A. Pogue 78,521,691 220,061
John F. Ruffle 78,550,158 191,594
The votes in favor of the election of the nominees represent at
least 83.2% of the shares voted for each of the nominees.
- 10 -<PAGE>
<PAGE> 12
Ratification of the appointment of Independent
Accountants was approved by the following vote:
For Against Abstentions
Number of Shares 77,737,649 398,352 605,751
Stockholders approved the 1994 Stock Incentive Plan by
the following vote:
For Against Abstentions
Number of Shares 70,159,503 8,182,960 399,289
Stockholders approved the 1994 Non-Employee Directors
Stock Plan of Bethlehem Steel Corporation by the following vote:
For Against Abstentions
Number of Shares 71,904,859 6,363,328 473,565
There were no broker non-votes with respect to any of
these routine matters voted upon at the Meeting.
- 11 -
<PAGE>
<PAGE> 13
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits.
The following is an index of the exhibits included in
this Report on Form 10-Q:
3. Second Restated Certificate of Incorporation of
Bethlehem Steel Corporation.
11. Statement regarding computation of per share
earnings.
(b) Reports on Form 8-K.
Bethlehem filed a Current Report on Form 8-K, dated
April 26, 1994, with the Securities and Exchange Commission
reporting the announcement of its financial results for the
first quarter of 1994.
- 12 -<PAGE>
<PAGE> 14
SIGNATURES
Pursuant to the requirements of the Securities Exchange
Act of 1934, Bethlehem Steel Corporation has duly caused this
report to be signed on its behalf by the undersigned thereunto
duly authorized.
Bethlehem Steel Corporation
(Registrant)
by
/s/ L. A. Arnett
______________________
L. A. Arnett
Vice President and
Controller (principal
accounting officer)
Date: May 9, 1994
- 13 -
<PAGE>
<PAGE> 15
EXHIBIT INDEX
The following is an index of the exhibits included in this Report:
Item Sequential
No. Exhibit Page Number
3 Second Restated Certificate of
Incorporation of Bethlehem
Steel Corporation
11 Statement Regarding Computation
of Per Share Earnings<PAGE>
<PAGE> 16
EXHIBIT (3)
SECOND
RESTATED CERTIFICATE OF INCORPORATION
OF
BETHLEHEM STEEL CORPORATION
<PAGE>
<PAGE> 17
SECOND
RESTATED CERTIFICATE OF INCORPORATION
OF
BETHLEHEM STEEL CORPORATION
Bethlehem Steel Corporation, a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware, does
hereby certify that:
1. The name of the Corporation is BETHLEHEM STEEL CORPORATION. The
Corporation was originally incorporated under the name Redington Standard
Fittings Company by filing its Certificate of Incorporation with the Secretary
of State of Delaware on July 1, 1919.
2. This Second Restated Certificate of Incorporation only restates and
integrates and does not further amend the provisions of the Corporation's
restated certificate of incorporation as previously amended and supplemented,
and there is no discrepancy between those provisions and the provisions of
this Second Restated Certificate of Incorporation.
3. This Second Restated Certificate of Incorporation of the Corporation
has been duly adopted in accordance with Section 242 of the General
Corporation Law of the State of Delaware.
4. The text of the Restated Certificate of Incorporation of Bethlehem
Steel Corporation, as previously amended and supplemented, is hereby restated
in full as follows:
FIRST. The name of the Corporation (which is hereinafter referred to as
the "Corporation") is BETHLEHEM STEEL CORPORATION.
SECOND. The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, in the City of Wilmington, County of
New Castle. The name of the Corporation's registered agent at such address is
The Corporation Trust Company.
THIRD. The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH. The total number of shares of all classes of stock which the
Corporation shall have authority to issue is one hundred ninety million
(190,000,000), of which (i) twenty million (20,000,000) shares are to be
Preferred Stock (hereinafter called the "Preferred Stock"), of the par value
of one dollar ($1) each; (ii) twenty million (20,000,000) shares are to be
Preference Stock (hereinafter called the "Preference Stock"), of the par value
of one dollar ($1) each; and (iii) one hundred fifty million (150,000,000)
shares are to be Common Stock (hereinafter called the "Common Stock"), of the
par value of one dollar ($1) each.
The designations and the powers, preferences and rights, and the
qualifications, limitations or restrictions thereof, of each class of stock of
the Corporation which are fixed by this Second Restated Certificate of
Incorporation, and the express grant of authority to the Board of Directors to
fix by resolution or resolutions the designations, and the powers, preferences
and rights, and the qualifications, limitations or restrictions thereof, of
the Preferred Stock and the Preference Stock which are not fixed by this
Second Restated Certificate of Incorporation, are as follows:
<PAGE>
<PAGE> 18
1. The Preferred Stock may be issued from time to time in any amount, not
exceeding in the aggregate, including all shares theretofore issued and then
outstanding of any and all series thereof, the total number of shares of the
Preferred Stock hereinabove authorized, as Preferred Stock of one or more
series, as hereinafter provided. All shares of any one series of the Preferred
Stock shall be identical in all respects, each series thereof shall be
distinctively designated by letter or descriptive words and, except as
permitted by the provisions of this Article Fourth, all series of the
Preferred Stock shall rank equally and be identical in all respects.
2. Authority is hereby expressly granted to the Board of Directors from
time to time to issue the Preferred Stock as Preferred Stock of any series and
in connection with the creation of each such series to fix by the resolution
or resolutions providing for the issue of shares thereof the designations and
powers, preferences and rights, and the qualifications, limitations or
restrictions thereof, of such series, to the full extent now or hereafter
permitted by the laws of the State of Delaware, in respect of the matters set
forth in the following subdivisions (a) to (g), inclusive:
(a) the designation of such series;
(b) the dividend rate of such series;
(c) the date or dates upon or after which the shares of such series
shall be subject to redemption at the election of the Corporation and the
redemption price or prices per share of such series on such redemption;
(d) the preference of the shares of such series over the Preference
Stock and the Common Stock as to assets in the event of any liquidation,
dissolution or winding up of the Corporation;
(e) whether or not the shares of such series shall be entitled to
the benefit of a sinking fund or purchase fund to be applied to the redemption
or purchase of such series and, if so entitled, the amount of such fund and
the manner of its application;
(f) whether or not the shares of such series shall be convertible
into, or exchangeable for, shares of any other class or classes or of any
other series of the same class or of any series of any other class or classes
of stock of the Corporation and, if so convertible or exchangeable, the
conversion price or prices or rate or rates, or the rate or rates of exchange,
and the adjustments, if any, in the price or prices or rate or rates at which
such conversion or exchange may be made; and
(g) whether the holders of shares of such series shall have voting
powers in addition to the voting powers provided for in Section 6 of this
Article Fourth and, if they are to have such additional voting powers, the
extent thereof.
3. The powers, preferences and rights, and the qualifications,
limitations and restrictions thereof, applicable to the Preferred Stock of all
series are as follows:
<PAGE>
<PAGE> 19
(a) Out of the surplus or net profits of the Corporation legally
available for dividends the holders of the Preferred Stock of each series
shall be entitled to receive, when and as declared by the Board of Directors,
dividends at the per annum rate determined as in this Article Fourth provided
for such series, and no more, payable quarterly on the tenth days of March,
June, September and December in each year (each such day being hereinafter
called a "dividend date" and each quarterly period ending with a dividend date
being hereinafter called a "dividend period"), in each case from the date of
cumulation, as hereinafter in subdivision (e) of this Section 3 defined, of
such series (provided, however, that, if the date of cumulation of such series
shall be a date less than thirty (30) days prior to a dividend date, the
dividend that would otherwise be payable on such dividend date shall be
payable on the next succeeding dividend date), before any sum or sums shall be
set aside pursuant to subdivisions (b) or (f) of this Section 3 for the
purchase or redemption of Preferred Stock of any series and before any
dividend shall be declared or paid upon or set apart for, or any other
distribution shall be ordered or made in respect of, or any payment shall be
made on account of the purchase or redemption of, the Preference Stock or the
Common Stock; and such dividends upon the Preferred Stock shall be cumulative
(whether or not in any dividend period or periods there shall be surplus or
net profits of the Corporation legally available for the payment of such
dividends), so that, if at any time dividends upon the outstanding Preferred
Stock of all series at the respective per annum rates determined as
hereinabove specified for such series from the date of cumulation of each such
series to the end of the then current dividend period shall not have been paid
or declared and a sum sufficient for the payment thereof set apart for such
payment, the amount of the deficiency shall be fully paid, but without
interest, or dividends in such amount declared on each such series and a sum
sufficient for the payment thereof set apart for such payment, before any sum
or sums shall be set aside pursuant to subdivisions (b) or (f) of this Section
3 for the purchase or redemption of Preferred Stock of any series and before
any dividend shall be declared or paid upon or set apart for, or any other
distribution shall be ordered or made in respect of, or any payment shall be
made on account of the purchase or redemption of, the Preference Stock or the
Common Stock.
All dividends declared on the Preferred Stock for any dividend period
shall be declared pro rata so that the amounts of dividends per share declared
for such period on the Preferred Stock of different series that shall have
been outstanding during such period shall in all cases bear to each other the
same proportions that the respective dividend rates of such series for such
period shall bear to each other.
(b) Out of any surplus or net profits of the Corporation legally
available for dividends remaining after full cumulative dividends upon the
Preferred Stock of all series then outstanding shall have been paid for all
past dividend periods, and after or concurrently with making payment of, or
declaring and setting apart for payment, full dividends on the Preferred Stock
of all series then outstanding to the end of the then current dividend period
and before any dividends shall be declared or paid upon or set apart for, or
any other distribution shall be ordered or made in respect of, or any payment
shall be made on account of the purchase or redemption of, the Preference
Stock or the Common Stock, the Corporation shall set aside on its books when
and as required, in respect of each series of the Preferred Stock any shares
of which shall at the time be outstanding and in respect of which a sinking
fund or purchase fund for the redemption or purchase thereof shall have been
provided for in the resolution or resolutions providing for the issue of such
shares, the sum or sums required by the terms of such resolution or
resolutions as a sinking fund or purchase fund to be applied in the manner
specified above.
<PAGE>
<PAGE> 20
(c) Out of any surplus or net profits of the Corporation legally
available for dividends remaining after full cumulative dividends upon the
Preferred Stock of all series then outstanding shall have been paid for all
past dividend periods, and after or concurrently with making payment of, or
declaring and setting apart for payment, full dividends on the Preferred Stock
of all series then outstanding to the end of the then current dividend period
and after the Corporation shall have complied with the provisions of the
foregoing subdivision (b) of this Section 3 in respect of any and all amounts
then or theretofore required to be set aside or applied in respect of any
sinking fund or purchase fund mentioned in said subdivision (b) and shall have
made provision for compliance with said subdivision (b) in respect of the
current sinking fund or purchase fund period for each series of Preferred
Stock then outstanding and entitled to the benefit of a sinking fund or
purchase fund, then and not otherwise, the holders of the Preference Stock and
the Common Stock shall, subject to the provisions hereof, be entitled to
receive such dividends as may from time to time be declared by the Board of
Directors.
(d) The Preferred Stock of all series shall be preferred over the
Preference Stock and the Common Stock as to assets in the event of any
liquidation or dissolution or winding up of the Corporation, and in that event
the holders of the Preferred Stock of each series shall be entitled to
receive, out of the assets of the Corporation available for distribution to
its stockholders, an amount determined as provided in this Article Fourth for
every share of their holdings of the Preferred Stock of such series before any
distribution of the assets shall be made to the holders of the Preference
Stock or the Common Stock; and, if in the event of any such liquidation or
dissolution or winding up the holders of all series of the Preferred Stock
shall have received all the amounts to which they shall be entitled as
aforesaid, the holders of the Preference Stock and the Common Stock shall be
entitled, to the exclusion of the holders of the Preferred Stock of all
series, to share ratably in all the assets of the Corporation available for
distribution to the stockholders then remaining according to the number of
shares and terms of the Preference Stock and the Common Stock held by them
respectively. If upon any liquidation or dissolution or winding up of the
Corporation the amounts payable on or with respect to the Preferred Stock of
all series shall not be paid in full, the holders of the shares of the
Preferred Stock of all series shall share ratably in any distribution of
assets according to the respective amounts which would be payable in respect
of the shares held by them upon such distribution if all amounts payable on or
with respect to the Preferred Stock of all series were to be paid in full.
(e) The term "date of cumulation" as used in this Article Fourth
with reference to the Preferred Stock of any series shall be deemed to mean
the date on which shares of the Preferred Stock of such series shall first be
issued (or such later date if so established in the resolution or resolutions
authorizing such series).
In the event of the issue of additional shares of the Preferred Stock of
any then existing series, all dividends paid on the Preferred Stock of such
series prior to the issue of such additional shares, and all dividends
declared and payable to holders of record of the Preferred Stock of such
series on any date prior to the issue of such additional shares, shall be
deemed to have been paid on such additional shares.
<PAGE>
<PAGE> 21
(f) All the Preferred Stock, or any series thereof, or any part
of any series thereof, at any time outstanding may be redeemed by the
Corporation (except as otherwise provided by the Board of Directors in
accordance with Section 2 of this Article Fourth), at its election expressed
by resolution of the Board of Directors, upon not less than thirty (30) days
previous notice to the holders of record of the Preferred Stock to be
redeemed, given by mail or by publication in such manner as may be prescribed
by resolution of the Board of Directors, at the applicable redemption price,
determined as provided in this Article Fourth, of the Preferred Stock to be
redeemed; provided, however, that Preferred Stock may be redeemed only after
full cumulative dividends upon the Preferred Stock of all series then
outstanding shall have been paid for all past dividend periods, and after or
concurrently with making payment of, or declaring and setting apart for
payment, full dividends on the Preferred Stock of all series then outstanding
(except the shares of the Preferred Stock to be redeemed) to the end of the
current dividend period. If less than all the outstanding Preferred Stock of
any series is to be redeemed, the redemption may be made either by lot or
pro rata or in such fair and equitable other manner as may be prescribed by
resolution of the Board of Directors. From and after the date fixed in any
such notice as the date of redemption (unless default shall be made by the
Corporation in providing moneys for the payment of the redemption price
pursuant to such notice), or, if the Corporation shall so elect, from and
after a date (hereinafter called the date of deposit), prior to the date
fixed as the date of redemption, on which the Corporation shall provide moneys
for the payment of the redemption price by depositing amount thereof for the
account of the holders of the Preferred Stock entitled thereto with a bank or
trust company doing business in the Borough of Manhattan, in The City of New
York, and having capital and surplus of at least ten million dollars
($10,000,000) pursuant to notice of such election included in the notice of
redemption specifying the date on which such deposit will made, all dividends
on the Preferred Stock called for redemption shall cease to accrue and all
rights of the holders thereof as stockholders of the Corporation, except the
right to receive the redemption price as hereinafter provided and, in the
case of such deposit, any conversion rights not theretofore expired, shall
cease and terminate. After the deposit of such amount with such bank or trust
company, the respective holders of record of the Preferred Stock to be
redeemed shall be entitled to receive the redemption price at any time upon
actual delivery to such bank or trust company of certificates for the number
of shares to be redeemed, duly endorsed in blank or accompanied by proper
instruments of assignment and transfer thereof duly endorsed in blank. Any
moneys so deposited which shall remain unclaimed by the holders of such
Preferred Stock at the end of six (6) years after the redemption date,
together with any interest thereon which shall be allowed by the bank or trust
company with which the deposit shall have been made, shall be paid by such
bank or trust company to the Corporation. Preferred Stock redeemed pursuant
to the provisions of this subdivision shall have the status of authorized but
unissued Preferred Stock.
(g) So long as any shares of the Preferred Stock of any series shall
be outstanding, (i) the Corporation shall not, without the affirmative vote or
written consent of the holders of two-thirds of the aggregate number of shares
of the Preferred Stock of all series at the time outstanding, considered as a
class without regard to series,
(A) alter or change the powers, preferences or rights given to
the Preferred Stock by this Second Restated Certificate of Incorporation, so
as to affect the Preferred Stock adversely, or
(B) authorize or create any class of stock ranking, either as
to payment of dividends or distribution of assets, prior to the Preferred
Stock; and
<PAGE>
<PAGE> 22
(ii) the Corporation shall not, without the affirmative vote or
written consent of the holders of a majority of the aggregate number of shares
of the Preferred Stock of all series at the time outstanding, considered as a
class without regard to series, increase the authorized amount of the
Preferred Stock or authorize or create any class of stock ranking, either as
to payment of dividends or distribution of assets, on a parity with the
Preferred Stock.
4. The Preference Stock may be issued from time to time in any amount,
not exceeding in the aggregate, including all shares theretofore issued and
then outstanding of any and all series thereof, the total number of shares of
the Preference Stock hereinabove authorized, as Preference Stock of one or
more series, as hereinafter provided. All shares of any one series of the
Preference Stock shall be identical in all respects, except that shares of any
one series providing for cumulative dividends issued at different times may
differ as to the dates from which dividends shall be cumulative, and each
series thereof shall be distinctively designated by letter or descriptive
words. If any of the Preference Stock shall be subject to redemption, any
redeemed Preference Stock shall have the status of authorized but unissued
Preference Stock unless the Board of Directors otherwise determines in
connection with the issuance or redemption of such Preference Stock.
5. All series of the Preferred Stock shall have preference and priority
over all series of the Preference Stock in the payment of dividends and in the
distribution of assets in the event of any liquidation, dissolution or winding
up of the Corporation and the Preference Stock shall be subject to all the
powers, preferences and rights of the Preferred Stock as shall be set forth
herein and in the resolution or resolutions fixing the terms of each series of
Preferred Stock adopted by the Board of Directors of this Corporation pursuant
to Section 2 of this Article Fourth. Subject to the foregoing, authority is
hereby expressly granted to the Board of Directors from time to time to issue
the Preference Stock as Preference Stock of any series and in connection with
the creation of each such series to fix by the resolution or resolutions
providing for the issue of shares thereof the designations and the powers,
preferences and rights, and the qualifications, limitations or restrictions
thereof, of such series, to the full extent now or hereafter permitted by the
laws of the State of Delaware, including, without limitation, the matters set
forth in the following subdivisions (a) to (h), inclusive:
(a) the designation of such series;
(b) the amount and timing of the declaration and payment of
dividends, if any (including any dividends which may be determined from time
to time at the discretion of the Board of Directors), which shall be payable
on the shares of such series, whether the dividends, if any, of such series
shall be cumulative and, if so, the date from which they shall be cumulative,
and any preferences as to dividends of the shares of such series over the
Common Stock or over any other series of Preference Stock;
(c) whether or not the shares of such series shall be subject to
redemption and, if so, the date or dates upon or after which the shares of
such series shall be subject to redemption at the election of the Corporation,
the redemption price or prices per share of such series on such redemption and
any other terms or conditions relating to such redemption;
(d) any preferences of the shares of such series over the Common
Stock or over any other series of Preference Stock as to assets in the event
of any liquidation, dissolution or winding up of the Corporation and whether
or not shares of such series are to participate in any distribution of assets
in the event of any such liquidation, dissolution or winding up after the
payment of any preference of such shares as to such assets;
<PAGE>
<PAGE> 23
(e) whether or not the shares of such series shall be entitled to
the benefit of a sinking fund or purchase fund to be applied to the redemption
or purchase of such series and, if so entitled, the amount of such fund and
the manner of its application;
(f) whether or not the shares of such series shall be convertible
into, or exchangeable for, shares of any other class or classes or of any
other series of the same class or of any series of any other class or classes
of stock of the Corporation and, if so convertible or exchangeable, the
conversion price or prices or rate or rates, or the rate or rates of exchange,
and the adjustments, if any, in the price or prices or rate or rates at which
such conversion or exchange may be made;
(g) whether the holders of shares of such series shall have voting
powers and, if they are to have such voting powers, the extent thereof
(subject to the limitation set forth in Section 6 of this Article Fourth); and
(h) the limitations and restrictions, if any, to be effective while
any shares of such series shall be outstanding upon the payment of dividends
or the making of other distributions on, and upon the purchase, redemption or
other acquisition by the Corporation of, the Common Stock or any other class
of stock (other than the Preferred Stock) or any other series of Preference
Stock.
6. Except for such voting powers, if any, as are granted to the holders
of the Preferred Stock by this Section 6 and by subdivision (g) of Section 3
of this Article Fourth or by law, or as may be granted by the Board of
Directors to the holders of any one or more series of Preferred Stock or
Preference Stock in accordance with Sections 2 and 5 of this Article Fourth,
or as may be granted to the holders of the Preference Stock by law, voting
power shall be vested exclusively in the Common Stock. Holders of stock of
whatever class entitled to vote shall be entitled to one vote for each share
of stock held by them.
If at the time of any annual meeting of stockholders of the Corporation
for the election of directors a default in preference dividends, as the term
"default in preference dividends" is hereinafter defined, shall exist, (i) the
holders of the Preferred Stock, voting separately as a class and without
regard to series, shall have the right to elect two members of the Board of
Directors but, except as provided in the following clause (ii), shall not be
entitled to vote in the election of any of the other directors of the
Corporation and (ii) if at the time of such meeting there shall be outstanding
shares of more than one series of the Preferred Stock, the holders of the
Preferred Stock of each series, if any, of which more than 5,000,000 shares
shall then be outstanding, voting separately as a series, shall have the right
to elect one member of the Board of Directors but, except as provided in the
foregoing clause (i), shall not be entitled to vote in the election of any of
the other directors of the Corporation; and the holders of the Common Stock
voting separately as a class, shall be entitled to elect the other directors
of the Corporation, subject to the voting rights, if any, granted to the
holders of the Preference Stock, but shall not be entitled to vote in the
election of the directors of the Corporation to be elected as provided in the
foregoing clauses (i) and (ii). Whenever a default in preference dividends
shall commence to exist, the Corporation, upon the written request of the
holders of 5% or more of the outstanding shares of Preferred Stock or the
holders of 5% or more of the outstanding shares of any series of Preferred
Stock that would be entitled to elect a director of the Corporation pursuant
to clause (ii) of the preceding sentence if an annual meeting of the
stockholders of the Corporation for the election of directors were then being
held, shall call a special meeting of the holders of the Preferred Stock and
<PAGE>
<PAGE> 24
if, at the time of such request, there shall be outstanding shares of more
than one series of the Preferred Stock, shall also call a special meeting of
the holders of the Preferred Stock of each series, if any, of which more than
5,000,000 shares shall then be outstanding, such special meeting or meetings
to be held within 120 days after the date on which such request shall be
received by the Corporation for the purpose of enabling such holders to elect
members of the Board of Directors as provided in clauses (i) and (ii) of the
preceding sentence; provided, however, that such special meeting or meetings
need not be called if an annual meeting of stockholders of the Corporation for
the election of directors shall be scheduled to be held within such 120 days;
and provided further that in lieu of any such special meeting, the election of
the directors to be elected thereat may be effected by the written consent of
the holders of a majority of the outstanding shares that would be entitled to
be voted upon at such special meeting. Prior to any such special meeting or
meetings, the number of directors of the Corporation shall be increased to the
extent necessary to provide as additional places on the Board of Directors the
directorships to be filled by the directors to be elected thereat. Any
director elected as aforesaid by the holders of shares of the Preferred Stock
or of any series thereof shall cease to serve as such director whenever a
default in preference dividends shall cease to exist. If, prior to the end of
the term of any director elected as aforesaid by the holders of shares of the
Preferred Stock or of any series thereof, or elected by the holders of any
other class of stock or series thereof, a vacancy in the office of such
director shall occur by reason of death, resignation, removal or disability,
or for any other cause, such vacancy shall be filled for the unexpired term in
the manner provided in the By-laws; provided, however, that if such vacancy
shall be filled by election by the stockholders at a meeting thereof, the
right to fill such vacancy shall be vested in the holders of that class of
stock or series thereof which elected the director the vacancy in the office
of whom is so to be filled, unless, in any such case, no default in preference
dividends shall exist at the time of such election.
For the purposes of this Section 6 of Article Fourth, a "default in
preference dividends" shall be deemed to have occurred whenever the amount of
dividends in arrears upon any series of the Preferred Stock shall be
equivalent to six full quarter-yearly dividends or more, and, having so
occurred, such default in preference dividends shall be deemed to exist
thereafter until, but only until, all dividends in arrears on all shares of
the Preferred Stock then outstanding, of each and every series, shall have
been paid. The term "dividends in arrears" whenever used in this Section 6 of
Article Fourth with reference to the Preferred Stock of any series shall be
deemed to mean (whether or not in any dividend period in respect of which such
term is used there shall have been surplus or net profits of the Corporation
legally available for the payment of dividends) that amount which shall be
equal to cumulative dividends at the rate expressed in the certificates for
the Preferred Stock of such series for all past quarterly dividend periods
less the amount of all dividends paid, or deemed paid, for all such periods
upon such Preferred Stock. Nothing herein contained shall be deemed to prevent
an increase in the number of directors of the Corporation pursuant to its
By-laws as from time to time in effect so as to provide as additional places
on the Board of Directors the directorships to be filled by the directors so
to be elected by the holders of the Preferred Stock or of any series thereof,
or to prevent any other change in the number of the directors of the
Corporation.
<PAGE>
<PAGE> 25
7. Pursuant to the grant of authority to the Board of Directors specified
above, it is hereby expressly acknowledged that any of the powers,
designations, preferences, rights, qualifications, limitations or restrictions
of any series of Preference Stock may be made dependent upon any aspect of the
results of operations of the Corporation or any of its divisions, subsidiaries
or other affiliates (or upon any other facts ascertainable outside this Second
Restated Certificate of Incorporation or the resolution or resolutions
providing for the issuance of such series).
8. A holder of stock of the Corporation of any class shall not have any
right as such holder (other than such right, if any, as the Board of Directors
in its discretion may by resolution determine) to purchase, subscribe for or
otherwise acquire any shares of stock of the Corporation of any class now or
hereafter authorized, or any securities convertible into or exchangeable for
any such shares, or any warrants or any instruments evidencing rights or
options to subscribe for, purchase or otherwise acquire any such shares,
whether such shares, securities, warrants or other instruments are now, or
shall hereafter be, authorized, unissued or issued and thereafter acquired by
the Corporation.
9. $5.00 Cumulative Convertible Preferred Stock (Par Value $1 Per Share).
The following are the voting powers, designation, preferences and relative,
participating, optional or other special rights, and the qualifications,
limitations or restrictions thereof, of the series of Preferred Stock
designated by the Board of Directors of the Corporation as the "$5.00
Cumulative Convertible Preferred Stock" by resolution dated March 17, 1983,
consisting of 2,500,000 shares:
(a) Designation. The designation of the series of Preferred Stock
created by such resolution shall be $5.00 Cumulative Convertible Preferred
Stock (hereinafter in this Section 9 of Article Fourth called this Series).
(b) Dividend Rate. Out of the surplus or net profits of the
Corporation legally available for dividends the holders of this Series shall
be entitled to receive, when and as declared by the Board of Directors,
dividends at the rate of $5.00 per share per annum, and no more, payable
quarterly on the tenth days of March, June, September and December in each
year (each such day being hereinafter called a dividend date and each
quarterly or shorter (in the case of the first such period) period ending with
a dividend date being hereinafter called a dividend period), in each case from
the date of cumulation (as defined in subdivision (h) of this Section 9) of
this Series (provided, however, that, if the date of cumulation of this Series
shall be a date less than thirty (30) days prior to a dividend date, the
dividend that would otherwise be payable on such dividend date shall be
payable on the next succeeding dividend date), before any sum or sums shall be
set aside pursuant to subdivision (c) of this Section 9 or subdivision (b) or
(f) of Section 3 of Article Fourth of this Second Restated Certificate of
Incorporation for the purchase or redemption of Preferred Stock of any series
and before any dividend shall be declared or paid upon or set apart for, or
any other distribution shall be ordered or made in respect of, or any payment
shall be made on account of the purchase of, the Common Stock; and such
dividends upon the Preferred Stock shall be cumulative (whether or not in any
dividend period or periods there shall be surplus or net profits of the
Corporation legally available for the payment of such dividends), so that, if
at any time dividends upon the outstanding Preferred Stock of all series at
the respective per annum rates determined for such series from the date of
cumulation of each such series to the end of the then current dividend period
shall not have been paid or declared and a sum sufficient for the payment
thereof set apart for such payment, the amount of the deficiency shall be
<PAGE>
<PAGE> 26
fully paid, but without interest, or dividends in such amount declared on each
such series and a sum sufficient for the payment thereof set apart for such
payment, before any sum or sums shall be set aside pursuant to subdivision (c)
of this Section 9 or subdivision (b) or (f) of Section 3 of Article Fourth of
this Second Restated Certificate of Incorporation for the purchase or
redemption of Preferred Stock of any series and before any dividend shall be
declared or paid upon or set apart for, or any other distribution shall be
ordered or made in respect of, or any payment shall be made on account of the
purchase of, the Common Stock.
All dividends declared on the Preferred Stock for any dividend period
shall be declared pro rata so that the amounts of dividends per share declared
for such period on the Preferred Stock of different series that were
outstanding during such period shall in all cases bear to each other the same
proportions that the respective dividend rates of such series for such period
bear to each other (adjusted, as appropriate, if shares of any series were not
outstanding during all such period). No interest, or sum of money in lieu of
interest, shall be payable in respect of any dividend payment or payments
which may be in arrears. Dividends payable on this Series for any period less
than a full quarterly period shall be computed on the basis of the number of
days elapsed in a 360 day year consisting of twelve months of thirty days
each.
(c) Redemption. (1) Shares of this Series shall be redeemable at the
option of the Corporation at any time, either in whole or in part, at a price
equal to the sum of (a) the redemption price per share set forth below for the
date fixed for redemption for such shares:
Redemption date during 12-month Redemption
period beginning March 10 Price
________________________________ __________
1983 . . . . . . . . . . . . . . . . . . . . . . . . . . .$ 55.00
1984 . . . . . . . . . . . . . . . . . . . . . . . . . . .$ 54.50
1985 . . . . . . . . . . . . . . . . . . . . . . . . . . .$ 54.00
1986 . . . . . . . . . . . . . . . . . . . . . . . . . . .$ 53.50
1987 . . . . . . . . . . . . . . . . . . . . . . . . . . .$ 53.00
1988 . . . . . . . . . . . . . . . . . . . . . . . . . . .$ 52.50
1989 . . . . . . . . . . . . . . . . . . . . . . . . . . .$ 52.00
1990 . . . . . . . . . . . . . . . . . . . . . . . . . . .$ 51.50
1991 . . . . . . . . . . . . . . . . . . . . . . . . . . .$ 51.00
1992 . . . . . . . . . . . . . . . . . . . . . . . . . . .$ 50.50
1993 and thereafter . . . . . . . . . . . . . . . . . . .$ 50.00
plus (b) in each case a sum equal to all dividends (whether or not earned or
declared) on such shares accrued and unpaid thereon to the redemption date;
provided, however, that shares of this Series shall be redeemed only after
full cumulative dividends upon the Preferred Stock of all series then
outstanding shall have been paid for all past dividend periods, and after or
concurrently with making payment of, or declaring and setting apart for
payment, full dividends on the Preferred Stock of all series then outstanding
(except the shares of the Preferred Stock to be redeemed) to the end of the
current dividend period; and provided further, however, that shares of this
Series shall not be redeemable prior to March 10, 1986, unless the Closing
Price (as defined in subdivision (f) of this Section 9 shall have equaled or
exceeded 150% of the then applicable conversion prices (as defined in
subdivision (f) of this Section 9 for at least 20 consecutive Trading Days (as
defined in subdivision (f) of this Section 9 ending within five Trading Days
prior to the date of the notice of redemption.
<PAGE>
<PAGE> 27
(2) If less than all the outstanding shares of this Series are to be
redeemed by the Corporation, the number of shares to be redeemed shall be
determined by the Board of Directors and the shares to be redeemed shall be
determined by lot or pro rata or in such fair and equitable other manner as
may be prescribed by resolution of the Board of Directors.
(3) Notice of any redemption of shares of this Series, specifying
the time and place of redemption, the redemption price and that the dividends
on the shares to be redeemed shall cease to accrue on the redemption date or
date of deposit referred to below, shall be mailed by first class mail,
postage prepaid, to each holder of record of the shares to be redeemed, at
such holder's address of record, not less than 30 days prior to the redemption
date; if less than all the shares owned by a stockholder are then to be
redeemed, the notice shall also specify the number of shares thereof which are
to be redeemed and the numbers of the certificates representing such shares.
Upon surrender in accordance with such notice of the certificates for the
number of shares to be redeemed, duly endorsed in blank or accompanied by
proper instruments of assignment or transfer thereof duly endorsed in blank,
such shares shall be redeemed by the Corporation at the applicable redemption
price. If less than all the shares represented by any such certificate shall
be redeemed, a new certificate shall be issued representing the unredeemed
shares without cost to the holder thereof. From and after the date fixed in
any such notice as the date of redemption (unless default shall be made by the
Corporation in providing moneys for the payment of the redemption price
pursuant to such notice), or, if the Corporation shall so elect, from and
after a date (hereinafter called the date of deposit), prior to the date fixed
as the date of redemption, on which the Corporation shall provide moneys for
the payment of the redemption price by depositing the amount thereof for
account of the holders of the shares of this Series entitled thereto with a
bank or trust company doing business in the Borough of Manhattan in The City
of New York, and having capital and surplus of at least ten million dollars
($10,000,000) pursuant to notice of such election included in the notice of
redemption specifying the date on which such deposit will be made, all
dividends on the shares of this Series called for redemption shall cease to
accrue and all rights of the holders thereof as stockholders of the
Corporation, except the right to receive the redemption price as hereinafter
provided and, in the case of such deposit, any conversion rights not
theretofore expired, shall cease and terminate, and such shares shall not
after the redemption date be deemed to be outstanding. After the deposit of
such amount with such bank or trust company, the respective holders of record
of the shares of this Series to be redeemed shall be entitled to receive the
redemption price at any time upon actual delivery to such bank or trust
company of certificates for the number of shares to be redeemed, duly endorsed
in blank or accompanied by proper instruments of assignment and transfer
thereof duly endorsed in blank. Any moneys so deposited which shall remain
unclaimed by the holders of such shares of this Series at the end of six (6)
years after the redemption date, together with any interest thereon which
shall be allowed by the bank or trust company with which the deposit shall
have been made, shall be paid by such bank or trust company to the
Corporation, and thereafter the holders of shares of this Series redeemed on
such redemption date shall look only to the Corporation for the payment of the
redemption price thereof. Any interest accrued on any funds deposited with any
such bank or trust company shall belong to the Corporation, and shall be paid
to it from time to time on demand.
(4) Any shares of this Series which shall at any time have been
redeemed, shall, after such redemption, have the status of authorized but
unissued shares of Preferred Stock, without designation as to series until
such shares are once more designated as part of a particular series by the
Board of Directors.
<PAGE>
<PAGE> 28
(5) The holders of this Series shall be entitled to receive the
redemption payments specified in this subdivision (c) if, when and as such
payments shall be authorized by the Board of Directors, out of the assets of
the Corporation legally available therefor.
(d) Distributions to Holders of Common Stock. Out of any surplus or
net profits of the Corporation legally available for dividends remaining after
full cumulative dividends upon the Preferred Stock of all series then
outstanding shall have been paid for all past dividend periods, and after or
concurrently with making payment of, or declaring and setting apart for
payment, full dividends on the Preferred Stock of all series then outstanding
to the end of the then current dividend period and after the Corporation shall
have complied with the provisions in respect of any and all amounts then or
theretofore required to be set aside or applied in respect of any sinking fund
or purchase fund with respect to the Preferred Stock of each series then
outstanding and entitled to the benefit of a sinking fund or purchase fund,
and shall have made provision for compliance in respect of the current sinking
fund or purchase fund period for each such series of Preferred Stock, then and
not otherwise, the holders of the Common Stock shall, subject to the
provisions of this Second Restated Certificate of Incorporation, be entitled
to receive such dividends as may from time to time be declared by the Board of
Directors.
(e) Voting. (1) Except for such voting powers as shall be granted to
the holders of shares of this Series by this subdivision (e) or by law, and
except for such voting powers, if any, as shall be granted to holders of
shares of other series of Preferred Stock, voting power shall be vested
exclusively in the Common Stock. Holders of stock of whatever class entitled
to vote shall be entitled to one vote for each share of stock held by them.
(2) If at the time of any annual meeting of stockholders of the
Corporation for the election of directors a default in preference dividends,
as the term "default in preference dividends" is hereinafter defined, shall
exist, (i) the holders of the Preferred Stock, voting separately as a class
and without regard to series, shall have the right to elect two members of the
Board of Directors but, except as provided in the following clause (ii), shall
not be entitled to vote in the election of any of the other directors of the
Corporation and (ii) if at the time of such meeting there shall be outstanding
shares of more than one series of the Preferred Stock, the holders of the
Preferred Stock of each series, if any, of which more than 5,000,000 shares
are then outstanding, voting separately as a series, shall have the right to
elect one member of the Board of Directors but, except as provided in the
foregoing clause (i), shall not be entitled to vote in the election of any of
the other directors of the Corporation; and the holders of the Common Stock,
voting separately as a class, shall be entitled to elect the other directors
of the Corporation but shall not be entitled to vote in the election of the
directors of the Corporation to be elected as provided in the foregoing
clauses (i) and (ii). Whenever a default in preference dividends shall
commence to exist, the Corporation, upon the written request of the holders of
5% or more of the outstanding shares of Preferred Stock or the holders of 5%
or more of the outstanding shares of any series of Preferred Stock that would
be entitled to elect a director of the Corporation pursuant to clause (ii) of
the preceding sentence if an annual meeting of the stockholders of the
Corporation for the election of directors were then being held, shall call a
special meeting of the holders of the Preferred Stock and if, at the time of
such request, there shall be outstanding shares of more than one series of the
Preferred Stock, shall also call a special meeting of the holders of the
Preferred Stock of each series, if any, of which more than 5,000,000 shares
are then outstanding, such special meeting or meetings to be held within 120
<PAGE>
<PAGE> 29
days after the date on which such request is received by the Corporation for
the purpose of enabling such holders to elect members of the Board of
Directors as provided in clauses (i) and (ii) of the preceding sentence;
provided, however, that such special meeting or meetings need not be called if
an annual meeting of stockholders of the Corporation for the election of
directors shall be scheduled to be held within such 120 days; and provided
further that in lieu of any such special meeting, the election of the
directors to be elected thereat may be effected by the written consent of the
holders of a majority of the outstanding shares that would be entitled to be
voted upon at such special meeting. Prior to any such special meeting or
meetings, the number of directors of the Corporation shall be increased to the
extent necessary to provide as additional places on the Board of Directors the
directorships to be filled by the directors to be elected thereat. Any
director elected as aforesaid by the holders of shares of the Preferred Stock
or of any series thereof shall cease to serve as such director whenever a
default in preference dividends shall cease to exist. If, prior to the end of
the term of any director elected as aforesaid by the holders of shares of the
Preferred Stock or of any series thereof, or elected by the holders of the
Common Stock, a vacancy in the office of such director shall occur by reason
of death, resignation, removal or disability, or for any other cause, such
vacancy shall be filled for the unexpired term in the manner provided in the
By-laws; provided, however, that if such vacancy shall be filled by election
by the stockholders at a meeting thereof, the right to fill such vacancy shall
be vested in the holders of that class of stock or series thereof which
elected the director the vacancy in the office of whom is so to be filled,
unless, in any such case, no default in preference dividends shall exist at
the time of such election. For the purposes of this subdivision (e), a
"default in preference dividends" shall be deemed to have occurred whenever
the amount of dividends in arrears upon any series of the Preferred Stock
shall be equivalent to six full quarter-yearly dividends or more, and, having
so occurred, such default in preference dividends shall be deemed to exist
thereafter until, but only until, all dividends in arrears on all shares of
the Preferred Stock then outstanding, of each and every series, shall have
been paid. The term "dividends in arrears" whenever used in this subdivision
(e) with reference to the Preferred Stock of any series shall be deemed to
mean (whether or not in any dividend period in respect of which such term is
used there shall have been surplus or net profits of the Corporation legally
available for the payment of dividends) that amount which shall be equal to
cumulative dividends at the rate for the Preferred Stock of such series for
all past quarterly dividend periods less the amount of all dividends paid, or
deemed paid, for all such periods upon such Preferred Stock. Nothing herein
contained shall be deemed to prevent an increase in the number of directors of
the Corporation pursuant to its By-laws as from time to time in effect so as
to provide as additional places on the Board of Directors the directorships to
be filled by the directors so to be elected by the holders of the Preferred
Stock or of any series thereof, or to prevent any other change in the number
of the directors of the Corporation.
(3) So long as any shares of the Preferred Stock of any series shall
be outstanding, (i) the Corporation shall not, without the affirmative vote or
written consent of the holders of two-thirds of the aggregate number of shares
of the Preferred Stock of all series at the time outstanding, considered as a
class without regard to series,
(A) alter or change the powers, preferences or rights given to
the Preferred Stock by this Second Restated Certificate of Incorporation so as
to affect the Preferred Stock adversely, or
<PAGE>
<PAGE> 30
(B) authorize, create or increase the number of authorized shares
of any class of stock ranking, either as to payment of dividends or
distribution of assets, prior to the Preferred Stock; and
(ii) the Corporation shall not, without the affirmative vote or written
consent of the holders of a majority of the aggregate number of shares of the
Preferred Stock of all series at the time outstanding, considered as a class
without regard to series, increase the authorized amount of the Preferred
Stock or authorize or create any class of stock ranking, either as to payment
of dividends or distribution of assets, on a parity with the Preferred Stock.
(4) So long as any shares of this Series shall be outstanding, the
Corporation shall not, without the affirmative vote or written consent of the
holders of two-thirds of the number of shares of this Series at the time
outstanding, alter or change the powers, preferences or rights given to the
shares of this Series by this Second Restated Certificate of Incorporation or
by this Section 9 so as to affect the shares of this Series adversely.
(f) Conversion Rights. The holders of shares of this Series shall have
the right, at their option, to convert each share of this Series into 1.7699
shares of Common Stock of the Corporation at any time on and subject to the
following terms and conditions:
(1) The shares of this Series shall be convertible at the office of
any transfer agent for this Series, and at such other office or offices, if
any, as the Board of Directors may designate, into fully paid and
nonassessable shares (calculated as to each conversion to the nearest 1/100th
of a share) of Common Stock of the Corporation, at the conversion price,
determined as hereinafter provided, in effect at the time of conversion, each
share of this Series being taken at $50.00 for the purpose of such conversion.
The price at which shares of Common Stock shall be delivered upon conversion
(herein called the conversion price) shall be initially $28.25 per share of
Common Stock. The conversion price shall be adjusted as provided in paragraph
(4) below.
(2) In order to convert shares of this Series into Common Stock the
holder thereof shall surrender at any office hereinabove mentioned the
certificate or certificates therefor, duly endorsed in blank or accompanied by
proper instruments of assignment and transfer thereof duly endorsed in blank,
together with any payment required by this paragraph (2) and transfer tax
stamps or funds therefor, if required pursuant to paragraph (8) of this
subdivision (f), and give written notice to the Corporation at said office
that he elects to convert such shares. Shares of this Series surrendered for
conversion during the period from the close of business on any record date for
the payment of a dividend on such shares to the opening of business on the
date for payment of such dividend shall (except in the case of shares which
have been called for redemption on a redemption date within such period) be
accompanied by payment of an amount equal to the dividend payable on such
dividend payment date on the shares of this Series being surrendered for
conversion. Except as provided in the preceding sentence, no payment or
adjustment shall be made upon any conversion on account of any dividends
accrued on the shares of this Series surrendered for conversion or on account
of any dividends on the Common Stock issued upon such conversion.
<PAGE>
<PAGE> 31
Shares of this Series shall be deemed to have been converted immediately
prior to the close of business on the day of the surrender of such shares for
conversion in accordance with the foregoing provisions, and the person or
persons entitled to receive the Common Stock issuable upon such conversion
shall be treated for all purposes as the record holder or holders of such
Common Stock at such time; provided, however, that any such surrender on any
date when the stock transfer books of the Corporation shall be closed shall
constitute the person or persons in whose name or names the certificates for
such shares of Common Stock are to be issued as the record holder or holders
thereof for all purposes immediately prior to the close of business on the
next succeeding day on which such stock transfer books are opened and such
conversion shall be at the conversion price in effect at such time on such
succeeding day. As promptly as practicable on or after the conversion date,
the Corporation shall issue and shall deliver at said office a certificate or
certificates for the number of full shares of Common Stock issuable upon such
conversion, together with a cash payment in lieu of any fraction of a share,
as hereinafter provided, to the person or persons entitled to receive the
same. In case shares of this Series are called for redemption, the right to
convert such shares shall cease and terminate at the close of business on the
redemption date, unless default shall be made in payment of the redemption
price.
(3) No fractional shares of Common Stock shall be issued upon
conversion of shares of this Series, but, instead of any fraction of a share
of Common Stock which would otherwise be issuable in respect of the aggregate
number of shares of this Series surrendered for conversion at one time by the
same holder, the Corporation shall pay a cash adjustment of such fraction in
an amount equal to the same fraction of the Closing Price of a share of Common
Stock on the date on which such shares of this Series were duly surrendered
for conversion, or, if such date is not a Trading Day, on the next Trading
Day.
(4) The conversion price shall be adjusted from time to time as
follows:
(A) In case the Corporation shall (i) pay a dividend or make a
distribution on its outstanding shares of Common Stock in Common Stock, (ii)
subdivide its outstanding shares of Common Stock, (iii) combine its
outstanding shares of Common Stock into a smaller number of shares, or (iv)
issue any shares by reclassification of its shares of Common Stock, the
conversion price in effect at the time of the record date for such dividend or
distribution or the effective date of such subdivision, combination or
reclassification shall be adjusted, effective at the opening of business on
the business day next following such record date or effective date, so that
the holder of any shares of this Series surrendered for conversion after such
record date or effective date shall be entitled to receive the number of
shares of capital stock of the Corporation which he would have owned or been
entitled to receive had such shares of this Series been converted immediately
prior to such time. If, as a result of an adjustment made pursuant to this
clause (A), the holder of any share thereafter surrendered for conversion
shall become entitled to receive shares of two or more classes of capital
stock of the Corporation, the Board of Directors (whose determination shall be
conclusive) shall determine the allocation of the adjusted conversion price
between or among shares of such classes of capital stock.
<PAGE>
<PAGE> 32
(B) In case the Corporation shall hereafter issue rights or
warrants to all holders of its Common Stock entitling them (for a period
expiring within forty-five days after the record date mentioned below) to
subscribe for or purchase shares of Common Stock at a price per share less
than the current market price per share (as determined pursuant to clause (D)
of this paragraph (4)) on the record date mentioned below, the conversion
price shall be adjusted so that the same shall equal the price determined by
multiplying the conversion price in effect immediately prior to such record
date by a fraction, of which the numerator shall be the number of shares of
Common Stock outstanding on such record date plus the number of shares of
Common Stock which the aggregate offering price of the total number of shares
of Common Stock so offered would purchase at such current market price and of
which the denominator shall be the number of shares of Common Stock
outstanding on such record date plus the number of additional shares of Common
Stock offered for subscription or purchase. Such adjustment shall become
effective at the opening of business on the business day next following the
record date for the determination of stockholders entitled to receive such
rights or warrants; and to the extent that shares of Common Stock are not
delivered after the expiration of such rights or warrants, the conversion
price shall be readjusted (but only with respect to shares of this Series
converted after such expiration) to the conversion price which would then be
in effect had the adjustments made upon the distribution of such rights or
warrants been made upon the basis of delivery of only the number of shares of
Common Stock actually delivered. The right to acquire shares of Common Stock
pursuant to the Corporation's Dividend Reinvestment Plan as in effect on
February 1, 1983, as the same may be amended from time to time, or pursuant to
any successor dividend reinvestment plan, shall not be deemed to be a right
giving rise to any adjustment to the conversion price. For the purposes of
this clause (B), the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Corporation. The
Corporation shall not issue any rights or warrants in respect of shares of
Common Stock held in the treasury of the Corporation.
(C) In case the Corporation shall distribute to all holders of
its Common Stock evidences of its indebtedness or assets (including
securities, but excluding any cash dividend or distributions out of surplus or
net profits legally available therefor and dividends referred to in clause (A)
of this paragraph (4)) or subscription rights or warrants (excluding those
referred to in clause (B) of this paragraph (4)), then in each such case the
conversion price shall be adjusted so that the same shall equal the price
determined by multiplying the conversion price in effect immediately prior to
the record date mentioned below by a fraction of which the numerator shall be
the current market price per share (determined as provided in clause (D) of
this paragraph (4)) of the Common Stock on such record date less the then fair
market value (as determined by the Board of Directors of the Corporation,
whose determination shall be conclusive) of the portion of the assets or
evidences of indebtedness so distributed or of such subscription rights or
warrants applicable to one share of Common Stock, and the denominator shall be
such current market price per share of the Common Stock. Such adjustment shall
become effective on the opening of business on the business day next following
the record date for the determination of stockholders entitled to receive such
distribution.
(D) For the purpose of any computation under clause (B) or (C) of
this paragraph (4), the current market price per share of Common Stock on any
date shall be deemed to be the average of the daily Closing Price for the
thirty consecutive Trading Days selected by the Corporation commencing not
more than forty-five Trading Days before the day in question.
<PAGE>
<PAGE> 33
(E) In any case in which this paragraph (4) shall require that an
adjustment as a result of any event become effective at the opening of
business on the business day next following a record date, the Corporation may
elect to defer until after the occurrence of such event (i) issuing to the
holder of any shares of this Series converted after such record date and
before the occurrence of such event the additional shares of Common Stock
issuable upon such conversion over and above the shares of Common Stock
issuable upon such conversion on the basis of the conversion price prior to
adjustment and (ii) paying to such holder any amount in cash in lieu of a
fractional share of Common Stock pursuant to paragraph (3) of this subdivision
(f); and, in lieu of the shares the issuance of which is so deferred, the
Corporation shall issue or cause its transfer agents to issue due bills or
other appropriate evidence of the right to receive such shares should such
event occur.
(F) Any adjustment in the conversion price otherwise required by
this paragraph (4) to be made may be postponed up to, but not beyond, three
years from the date on which it would otherwise be required to be made
provided that such adjustment (plus any other adjustments postponed pursuant
to this clause (F) and not theretofore made) would not require an increase or
decrease of more than $0.50 in such price and would not, if made, entitle the
holders of all then outstanding shares of this Series upon conversion to
receive additional shares of Common Stock equal in the aggregate to 3% or more
of the then issued and outstanding shares of Common Stock. All calculations
under this subdivision (f) shall be made to the nearest cent or to the nearest
1/100th of a share, as the case may be.
(G) The Corporation may (but shall not be obligated to) make such
reductions in the conversion price, in addition to those required by clauses
(A), (B) and (C) of this paragraph (4), as it considers to be advisable in
order that any event treated for Federal income tax purposes as a dividend of
stock or stock rights shall not be taxable to the recipients.
(5) Whenever the conversion price is adjusted as herein provided:
(A) the Corporation shall compute the adjusted conversion price
in accordance with this subdivision (f) and shall prepare a certificate signed
by the Treasurer of the Corporation setting forth the adjusted conversion
price, and such certificate shall forthwith be filed with the transfer agent
or agents for this Series; and
(B) a notice stating that the conversion price has been adjusted
and setting forth the adjusted conversion price shall, as soon as practicable,
be mailed to the holders of record of the outstanding shares of this Series.
(6) In case:
(A) the Corporation shall declare a dividend (or any other
distribution) on its Common Stock payable otherwise than in cash out of its
retained earnings; or
(B) the Corporation shall authorize the granting to the holders
of its Common Stock of rights to subscribe for or purchase any shares of
capital stock of any class or of any other rights; or
(C) of any reclassification of the capital stock of the
Corporation (other than a subdivision or combination of its outstanding shares
of Common Stock), or of any consolidation or merger to which the Corporation
is a party and for which approval of any stockholders of the Corporation is
required, or of the sale or transfer of all or substantially all the assets of
the Corporation; or
<PAGE>
<PAGE> 34
(D) of the voluntary or involuntary dissolution, liquidation or
winding up of the Corporation;
then the Corporation shall cause to be mailed to the transfer agent or agents
for this Series and to the holders of record of the outstanding shares of this
Series, at least 20 days (or 10 days in any case specified in clause (A) or
(B) of this paragraph (6)) prior to the applicable record date hereinafter
specified, a notice stating (x) the date on which a record is to be taken for
the purpose of such dividend, distribution or rights, or, 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 are to be determined, or (y)
the date on which such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up 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 deliverable upon such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding up.
(7) The Corporation shall at all times reserve and keep available,
free from pre-emptive rights, out of its authorized but unissued Common Stock,
for the purpose of effecting the conversion of the shares of this Series, the
full number of shares of Common Stock then deliverable upon the conversion of
all shares of this Series then outstanding, provided, that nothing contained
herein shall be construed to preclude the Corporation from satisfying its
obligations in respect of the conversion of the shares by delivery of
purchased shares of Common Stock which are held in the treasury of the
Corporation.
(8) The Corporation shall pay any and all taxes that may be payable
in respect of the issuance or delivery of shares of Common Stock on conversion
of shares of this Series pursuant hereto. The Corporation shall not, however,
be required to pay any tax which may be payable in respect of any transfer
involved in the issue and delivery of shares of Common Stock in a name other
than that in which the shares of this Series so converted were registered, and
no such issue or delivery shall be made unless and until the person requesting
such issue shall have paid to the Corporation the amount of any such tax, or
shall have established, to the satisfaction of the Corporation, that such tax
shall have been paid.
(9) For the purpose of this subdivision (f) the term "Common Stock"
shall include any stock of any class of the Corporation which has no
preference in respect of dividends or of amounts in the event of any voluntary
or involuntary liquidation, dissolution or winding up of the Corporation, and
which is not subject to redemption by the Corporation. However, except as
otherwise provided in paragraph (11), shares issuable on conversion of shares
of this Series shall include only shares of the class designated as Common
Stock of the Corporation as of the original date of issue of this Series or
shares of any class or classes resulting from any reclassification or
reclassifications thereof and which have no preference in respect of dividends
or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation and which are not
subject to redemption by the Corporation, provided that if at any time there
shall be more than one such resulting class, the shares of each such class
then so issuable shall be substantially in the proportion which the total
number of shares of such class resulting from all such reclassifications bears
to the total number of shares of all such classes resulting from all such
reclassifications.
<PAGE>
<PAGE> 35
(10) As used in this subdivision (f), the term "Closing Price" on
any day shall mean the reported last sales price regular way on such day on
the New York Stock Exchange, or, if not reported for such Exchange, on the
Composite Tape, or, in case no such reported sale takes place on such day, the
average of the reported closing bid and asked prices regular way on the New
York Stock Exchange, or, if the Common Stock is not listed or admitted to
trading on such Exchange, on the principal national securities exchange on
which the Common Stock is listed or admitted to trading, or, if not listed or
admitted to trading on any national securities exchange, the average of the
closing bid and asked prices in the over-the-counter market as furnished by
any New York Stock Exchange member firm selected from time to time by the
Corporation for that purpose, or, if no such quotations are available, the
fair market price as determined by the Corporation (whose determination shall
be conclusive); and the term "Trading Day" shall mean, so long as the Common
Stock is listed or admitted to trading on the New York Stock Exchange (or any
successor to such Exchange), a date on which the New York Stock Exchange (or
such successor) is open for the transaction of business, or, if the Common
Stock is not listed or admitted to trading on such Exchange, a date on which
the principal national securities exchange on which the Common Stock is listed
is open for the transaction of business, or, if the Common Stock is not listed
or admitted to trading on any national securities exchange, a date on which
any New York Stock Exchange member firm is open for the transaction of
business.
(11) If either of the following shall occur, namely: (a) any
consolidation or merger to which the Corporation is a party, other than a
consolidation or a merger in which consolidation or merger the Corporation is
a continuing corporation and which does not result in any reclassification of,
or change (other than a change in par value or from par value to no par value
or from no par value to par value, or as a result of a subdivision or
combination) in, outstanding shares of the Common Stock, or (b) any sale or
conveyance to another corporation of the property of the Corporation as an
entirety or substantially as an entirety; then the holder of each share then
outstanding shall have the right to convert such share only into the kind and
amount of shares of stock and other securities and property receivable upon
such consolidation, merger, sale or conveyance by a holder of the number of
shares of Common Stock issuable upon conversion of such share immediately
prior to such consolidation, merger, sale or conveyance, subject to
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in paragraph (4) of this subdivision (f). The
provisions of this paragraph (11) shall similarly apply to successive
consolidations, mergers, sales or conveyances.
(12) Notwithstanding anything elsewhere contained in this Section 9,
any funds which at any time shall have been deposited by the Corporation or on
its behalf with any paying agent for the purpose of paying dividends on or the
redemption price of any of the shares of this Series and which shall not be
required for such purposes because of the conversion of such shares, as
provided in this subdivision (f), shall, upon delivery to the paying agent of
evidence satisfactory to it of such conversion, after such conversion be
repaid to the Corporation by the paying agent.
(13) Any shares of this Series which shall at any time have been
converted into shares of Common Stock shall, after such conversion, have the
status of authorized but unissued shares of Preferred Stock, without
designation as to series until such shares are once more designated as part of
a particular series by the Board of Directors.
<PAGE>
<PAGE> 36
(g) Liquidation Rights. (1) Upon the liquidation, dissolution or
winding up of the Corporation, the holders of the shares of this Series shall
be entitled to receive out of the assets of the Corporation available for
distribution to its stockholders, before any payment or distribution shall be
made on the Common Stock, the amount of $50 per share, plus a sum equal to all
dividends (whether or not earned or declared) on such shares accrued and
unpaid thereon to the date of final distribution.
(2) The Preferred Stock of all series shall be preferred over the
Common Stock as to assets in the event of any liquidation, dissolution or
winding up of the Corporation, and in that event the holders of the Preferred
Stock of each series shall be entitled to receive, out of the assets of the
Corporation available for distribution to its stockholders, an amount
determined as provided in this Section 9 or pursuant to Article Fourth of this
Second Restated Certificate of Incorporation, as the case may be, for every
share of their holdings of the Preferred Stock of such series before any
distribution of the assets shall be made to the holders of the Common Stock;
and, if in the event of any such liquidation, dissolution or winding up the
holders of all series of the Preferred Stock shall have received all the
amounts to which they shall be entitled as aforesaid, the holders of the
Common Stock shall be entitled, to the exclusion of the holders of the
Preferred Stock of all series, to share ratably in all the assets of the
Corporation available for distribution to the stockholders then remaining
according to the number of shares of the Common Stock held by them
respectively. If upon any liquidation, dissolution or winding up of the
Corporation the amounts payable on or with respect to the Preferred Stock of
all series are not paid in full, the holders of shares of the Preferred Stock
of all series shall share ratably in any distribution of assets according to
the respective amounts which would be payable in respect of the shares held by
them upon such distribution if all amounts payable on or with respect to the
Preferred Stock of all series were paid in full.
(3) Neither the sale, lease or exchange (for cash, shares of stock,
securities or other consideration) of all or substantially all the property
and assets of the Corporation nor the merger or consolidation of the
Corporation into or with any other corporation or the merger or consolidation
of any other corporation into or with the Corporation shall be deemed to be a
liquidation, dissolution or winding up of the Corporation for the purposes of
this subdivision (g).
(h) Date of Cumulation. The term "date of cumulation" as used in this
Section 9 with reference to the Preferred Stock of any series shall be deemed
to mean the date on which shares of the Preferred Stock of such series are
first issued.
In the event of the issue of additional shares of the Preferred Stock of
any then existing series, all dividends paid on the Preferred Stock of such
series prior to the issue of such additional shares, and all dividends
declared and payable to holders of record of the Preferred Stock of such
series on any date prior to the issue of such additional shares, shall be
deemed to have been paid on such additional shares.
10. $2.50 Cumulative Convertible Preferred Stock (Par Value $1 Per
Share). The following are the voting powers, designation, preferences and
relative, participating, optional or other special rights, and the
qualifications, limitations or restrictions thereof, of the series of
Preferred Stock designated by the Board of Directors of the Corporation as the
"$2.50 Cumulative Convertible Preferred Stock" by resolution dated October 3,
1983, consisting of 4,000,000 shares:
<PAGE>
<PAGE> 37
(a) Designation. The designation of the series of Preferred Stock
created by such resolution shall be $2.50 Cumulative Convertible Preferred
Stock (hereinafter in this Section 10 of Article Fourth called "this Series").
(b) Dividend Rate. Out of the surplus or net profits of the
Corporation legally available for dividends the holders of this Series shall
be entitled to receive, when and as declared by the Board of Directors,
dividends at the rate of $2.50 per share per annum, and no more, payable
quarterly on the tenth days of March, June, September and December in each
year (each such day being hereinafter called a dividend date and each
quarterly or shorter (in the case of the first such period) period ending with
a dividend date being hereinafter called a dividend period), in each case from
the date of cumulation (as defined in subdivision (h) of this Section 10) of
this Series (provided, however, that, if the date of cumulation of this Series
shall be a date less than thirty (30) days prior to a dividend date, the
dividend that would otherwise be payable on such dividend date shall be
payable on the next succeeding dividend date), before any sum or sums shall be
set aside pursuant to subdivision (c) of this Section 10 or subdivision (b) or
(f) of Section 3 of Article Fourth of this Second Restated Certificate of
Incorporation for the purchase or redemption of Preferred Stock of any series
and before any dividend shall be declared or paid upon or set apart for, or
any other distribution shall be ordered or made in respect of, or any payment
shall be made on account of the purchase of, the Common Stock; and such
dividends upon the Preferred Stock shall be cumulative (whether or not in any
dividend period or periods there shall be surplus or net profits of the
Corporation legally available for the payment of such dividends), so that, if
at any time dividends upon the outstanding Preferred Stock of all series at
the respective per annum rates determined for such series from the date of
cumulation of each such series to the end of the then current dividend period
shall not have been paid or declared and a sum sufficient for the payment
thereof set apart for such payment, the amount of the deficiency shall be
fully paid, but without interest, or dividends in such amount declared on each
such series and a sum sufficient for the payment thereof set apart for such
payment, before any sum or sums shall be set aside pursuant to subdivision (c)
of this Section 10 or subdivision (b) or (f) of Section 3 of Article Fourth of
this Second Restated Certificate of Incorporation for the purchase or
redemption of Preferred Stock of any series and before any dividend shall be
declared or paid upon or set apart for, or any other distribution shall be
ordered or made in respect of, or any payment shall be made on account of the
purchase of, the Common Stock.
All dividends declared on the Preferred Stock for any dividend period
shall be declared pro rata so that the amounts of dividends per share declared
for such period on the Preferred Stock of different series that were
outstanding during such period shall in all cases bear to each other the same
proportions that the respective dividend rates of such series for such period
bear to each other (adjusted, as appropriate, if shares of any series were not
outstanding during all such period). No interest, or sum of money in lieu of
interest, shall be payable in respect of any dividend payment or payments
which may be in arrears. Dividends payable on this Series for any period less
than a full quarterly period shall be computed on the basis of the number of
days elapsed in a 360-day year consisting of twelve months of thirty days
each.
(c) Redemption. (1) Shares of this Series shall be redeemable at the
option of the Corporation at any time, either in whole or in part, at a price
equal to the sum of (a) the redemption price per share set forth below for the
date fixed for redemption for such shares:
<PAGE>
<PAGE> 38
Redemption date during 12-month Redemption
period beginning September 10 Price
_______________________________ __________
1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . $27.50
1984 . . . . . . . . . . . . . . . . . . . . . . . . . . . $27.25
1985 . . . . . . . . . . . . . . . . . . . . . . . . . . . $27.00
1986 . . . . . . . . . . . . . . . . . . . . . . . . . . . $26.75
1987 . . . . . . . . . . . . . . . . . . . . . . . . . . . $26.50
1988 . . . . . . . . . . . . . . . . . . . . . . . . . . . $26.25
1989 . . . . . . . . . . . . . . . . . . . . . . . . . . . $26.00
1990 . . . . . . . . . . . . . . . . . . . . . . . . . . . $25.75
1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . $25.50
1992 . . . . . . . . . . . . . . . . . . . . . . . . . . . $25.25
1993 and thereafter . . . . . . . . . . . . . . . . . . . $25.00
plus (b) in each case a sum equal to all dividends (whether or not earned or
declared) on such shares accrued and unpaid thereon to the redemption date;
provided, however, that shares of this Series shall be redeemed only after
full cumulative dividends upon the Preferred Stock of all series then
outstanding shall have been paid for all past dividend periods, and after or
concurrently with making payment of, or declaring and setting apart for
payment, full dividends on the Preferred Stock of all series then outstanding
(except the shares of the Preferred Stock to be redeemed) to the end of the
current dividend period; and provided further, however, that shares of this
Series shall not be redeemable prior to September 10, 1986, unless the Closing
Price (as defined in subdivision (f) of this Section 10) shall have equaled or
exceeded 150% of the then applicable conversion price (as defined in
subdivision (f) of this Section 10) for at least 20 consecutive Trading Days
(as defined in subdivision (f) of this Section 10) ending within five Trading
Days prior to the date of the notice of redemption.
(2) If less than all the outstanding shares of this Series are to be
redeemed by the Corporation, the number of shares to be redeemed shall be
determined by the Board of Directors and the shares to be redeemed shall be
determined by lot or pro rata or in such fair and equitable other manner as
may be prescribed by resolution of the Board of Directors.
(3) Notice of any redemption of shares of this Series, specifying
the time and place of redemption, the redemption price and that the dividends
on the shares to be redeemed shall cease to accrue on the redemption date or
date of deposit referred to below, shall be mailed by first class mail,
postage prepaid, to each holder of record of the shares to be redeemed, at
such holder's address of record, not less than 30 days prior to the redemption
date; if less than all the shares owned by a stockholder are then to be
redeemed, the notice shall also specify the number of shares thereof which are
to be redeemed and the numbers of the certificates representing such shares.
Upon surrender in accordance with such notice of the certificates for the
number of shares to be redeemed, duly endorsed in blank or accompanied by
proper instruments of assignment or transfer thereof duly endorsed in blank,
such shares shall be redeemed by the Corporation at the applicable redemption
price. If less than all the shares represented by any such certificate shall
be redeemed, a new certificate shall be issued representing the unredeemed
shares without cost to the holder thereof. From and after the date fixed in
any such notice as the date of redemption (unless default shall be made by the
Corporation in providing moneys for the payment of the redemption price
pursuant to such notice), or, if the Corporation shall so elect, from and
after a date (hereinafter called the date of deposit), prior to the date fixed
as the date of redemption, on which the Corporation shall provide moneys for
the payment of the redemption price by depositing the amount thereof for
<PAGE>
<PAGE> 39
account of the holders of the shares of this Series entitled thereto with a
bank or trust company doing business in the Borough of Manhattan, in The City
of New York, and having capital and surplus of at least ten million dollars
($10,000,000) pursuant to notice of such election included in the notice of
redemption specifying the date on which such deposit will be made, all
dividends on the shares of this Series called for redemption shall cease to
accrue and all rights of the holders thereof as stockholders of the
Corporation, except the right to receive the redemption price as hereinafter
provided and, in the case of such deposit, any conversion rights not
theretofore expired, shall cease and terminate, and such shares shall not
after the redemption date be deemed to be outstanding. After the deposit of
such amount with such bank or trust company, the respective holders of record
of the shares of this Series to be redeemed shall be entitled to receive the
redemption price at any time after the redemption date upon actual delivery to
such bank or trust company of certificates for the number of shares to be
redeemed, duly endorsed in blank or accompanied by proper instruments of
assignment and transfer thereof duly endorsed in blank. Any moneys so
deposited which shall remain unclaimed by the holders of such shares of this
Series at the end of six (6) years after the redemption date, together with
any interest thereon which shall be allowed by the bank or trust company with
which the deposit shall have been made, shall be paid by such bank or trust
company to the Corporation, and thereafter the holders of shares of this
Series redeemed on such redemption date shall look only to the Corporation for
the payment of the redemption price thereof. Any interest accrued on any funds
deposited with any such bank or trust company shall belong to the Corporation,
and shall be paid to it from time to time on demand.
(4) Any shares of this Series which shall at any time have been
redeemed, shall, after such redemption, have the status of authorized but
unissued shares of Preferred Stock, without designation as to series until
such shares are once more designated as part of a particular series by the
Board of Directors.
(5) The holders of this Series shall be entitled to receive the
redemption payments specified in this subdivision (c), if, when and as such
payments shall be authorized by the Board of Directors, out of the assets of
the Corporation legally available therefor.
(d) Distributions to Holders of Common Stock. Out of any surplus or
net profits of the Corporation legally available for dividends remaining after
full cumulative dividends upon the Preferred Stock of all series then
outstanding shall have been paid for all past dividend periods, and after or
concurrently with making payment of, or declaring and setting apart for
payment, full dividends on the Preferred Stock of all series then outstanding
to the end of the then current dividend period and after the Corporation shall
have complied with the provisions in respect of any and all amounts then or
theretofore required to be set aside or applied in respect of any sinking fund
or purchase fund with respect to the Preferred Stock of each series then
outstanding and entitled to the benefit of a sinking fund or purchase fund,
and shall have made provision for compliance in respect of the current sinking
fund or purchase fund period for each such series of Preferred Stock, then and
not otherwise, the holders of the Common Stock shall, subject to the
provisions of this Second Restated Certificate of Incorporation, be entitled
to receive such dividends as may from time to time be declared by the Board of
Directors.
(e) Voting. (1) Except for such voting powers as shall be granted to
the holders of shares of this Series by this subdivision (e) or by law, and
except for such voting powers, if any, as shall be granted to holders of
shares of other series of Preferred Stock, voting power shall be vested
exclusively in the Common Stock. Holders of stock of whatever class entitled
to vote shall be entitled to one vote for each share of stock held by them.
<PAGE>
<PAGE> 40
(2) If at the time of any annual meeting of stockholders of the
Corporation for the election of directors a default in preference dividends,
as the term "default in preference dividends" is hereinafter defined, shall
exist, (i) the holders of the Preferred Stock, voting separately as a class
and without regard to series, shall have the right to elect two members of the
Board of Directors but, except as provided in the following clause (ii), shall
not be entitled to vote in the election of any of the other directors of the
Corporation and (ii) if at the time of such meeting there shall be outstanding
shares of more than one series of the Preferred Stock, the holders of the
Preferred Stock of each series, if any, of which more than 5,000,000 shares
are then outstanding, voting separately as a series, shall have the right to
elect one member of the Board of Directors but, except as provided in the
foregoing clause (i), shall not be entitled to vote in the election of any of
the other directors of the Corporation; and the holders of the Common Stock,
voting separately as a class, shall be entitled to elect the other directors
of the Corporation but shall not be entitled to vote in the election of the
directors of the Corporation to be elected as provided in the foregoing
clauses (i) and (ii). Whenever a default in preference dividends shall
commence to exist, the Corporation, upon the written request of the holders of
5% or more of the outstanding shares of Preferred Stock or the holders of 5%
or more of the outstanding shares of any series of Preferred Stock that would
be entitled to elect a director of the Corporation pursuant to clause (ii) of
the preceding sentence if an annual meeting of the stockholders of the
Corporation for the election of directors were then being held, shall call a
special meeting of the holders of the Preferred Stock and if, at the time of
such request, there shall be outstanding shares of more than one series of the
Preferred Stock, shall also call a special meeting of the holders of the
Preferred Stock of each series, if any, of which more than 5,000,000 shares
are then outstanding, such special meeting or meetings to be held within 120
days after the date on which such request is received by the Corporation for
the purpose of enabling such holders to elect members of the Board of
Directors as provided in clauses (i) and (ii) of the preceding sentence;
provided, however, that such special meeting or meetings need not be called if
an annual meeting of stockholders of the Corporation for the election of
directors shall be scheduled to be held within such 120 days; and provided
further that in lieu of any such special meeting, the election of the
directors to be elected thereat may be effected by the written consent of the
holders of a majority of the outstanding shares that would be entitled to be
voted upon at such special meeting. Prior to any such special meeting or
meetings, the number of directors of the Corporation shall be increased to the
extent necessary to provide as additional places on the Board of Directors the
directorships to be filled by the directors to be elected thereat. Any
director elected as aforesaid by the holders of shares of the Preferred Stock
or of any series thereof shall cease to serve as such director whenever a
default in preference dividends shall cease to exist. If, prior to the end of
the term of any director elected as aforesaid by the holders of shares of the
Preferred Stock or of any series thereof, or elected by the holders of the
Common Stock, a vacancy in the office of such director shall occur by reason
of death, resignation, removal or disability, or for any other cause, such
vacancy shall be filled for the unexpired term in the manner provided in the
By-laws; provided, however, that if such vacancy shall be filled by election
by the stockholders at a meeting thereof, the right to fill such vacancy shall
be vested in the holders of that class of stock or series thereof which
elected the director the vacancy in the office of whom is so to be filled,
unless, in any such case, no default in preference dividends shall exist at
the time of such election. For the purposes of this subdivision (e), a
"default in preference dividends" shall be deemed to have occurred whenever
the amount of dividends in arrears upon any series of the Preferred Stock
shall be equivalent to six full quarter-yearly dividends or more, and, having
so occurred, such default in preference dividends shall be deemed to exist
<PAGE>
<PAGE> 41
thereafter until, but only until, all dividends in arrears on all shares of
the Preferred Stock then outstanding, of each and every series, shall have
been paid. The term "dividends in arrears" whenever used in this subdivision
(e) with reference to the Preferred Stock of any series shall be deemed to
mean (whether or not in any dividend period in respect of which such term is
used there shall have been surplus or net profits of the Corporation legally
available for the payment of dividends) that amount which shall be equal to
cumulative dividends at the rate for the Preferred Stock of such series for
all past quarterly dividend periods less the amount of all dividends paid, or
deemed paid, for all such periods upon such Preferred Stock. Nothing herein
contained shall be deemed to prevent an increase in the number of directors of
the Corporation pursuant to its By-laws as from time to time in effect so as
to provide as additional places on the Board of Directors the directorships to
be filled by the directors so to be elected by the holders of the Preferred
Stock or of any series thereof, or to prevent any other change in the number
of the directors of the Corporation.
(3) So long as any shares of the Preferred Stock of any series shall
be outstanding, (i) the Corporation shall not, without the affirmative vote or
written consent of the holders of two-thirds of the aggregate number of shares
of the Preferred Stock of all series at the time outstanding, considered as a
class without regard to series,
(A) alter or change the powers, preferences or rights given to
the Preferred Stock by this Second Restated Certificate of Incorporation so as
to affect the Preferred Stock adversely, or
(B) authorize, create or increase the number of authorized shares
of any class of stock ranking, either as to payment of dividends or
distribution of assets, prior to the Preferred Stock; and
(ii) the Corporation shall not, without the affirmative vote or written
consent of the holders of a majority of the aggregate number of shares of the
Preferred Stock of all series at the time outstanding, considered as a class
without regard to series, increase the authorized amount of the Preferred
Stock or authorize or create any class of stock ranking, either as to payment
of dividends or distribution of assets, on a parity with the Preferred
Stock.
(4) So long as any shares of this Series shall be outstanding, the
Corporation shall not, without the affirmative vote or written consent of the
holders of two-thirds of the number of shares of this Series at the time
outstanding, alter or change the powers, preferences or rights given to the
shares of this Series by this Second Restated Certificate of Incorporation or
by this Section 10 so as to affect the shares of this Series adversely.
(f) Conversion Rights. The holders of shares of this Series shall have
the right, at their option, to convert each share of this Series into 0.8403
shares of Common Stock of the Corporation at any time on and subject to the
following terms and conditions:
<PAGE>
<PAGE> 42
(1) The shares of this Series shall be convertible at the office of
any transfer agent for this Series, and at such other office or offices, if
any, as the Board of Directors may designate, into fully paid and
nonassessable shares (calculated as to each conversion to the nearest 1/100th
of a share) of Common Stock of the Corporation, at the conversion price,
determined as hereinafter provided, in effect at the time of conversion, each
share of this Series being taken at $25.00 for the purpose of such conversion.
The price at which shares of Common Stock shall be delivered upon conversion
(herein called the conversion price) shall be initially $29.75 per share of
Common Stock. The conversion price shall be adjusted as provided in paragraph
(4) of this subdivision (f).
(2) In order to convert shares of this Series into Common Stock the
holder thereof shall surrender at any office hereinabove mentioned the
certificate or certificates therefor, duly endorsed in blank or accompanied by
proper instruments of assignment and transfer thereof duly endorsed in blank,
together with any payment required by this paragraph (2) and transfer tax
stamps or funds therefor, if required pursuant to paragraph (8) of this
subdivision (f), and give written notice to the Corporation at said office
that he elects to convert such shares. Shares of this Series surrendered for
conversion during the period from the close of business on any record date for
the payment of a dividend on such shares to the opening of business on the
date for payment of such dividend shall (except in the case of shares which
have been called for redemption on a redemption date within such period) be
accompanied by payment of an amount equal to the dividend payable on such
dividend payment date on the shares of this Series being surrendered for
conversion. Except as provided in the preceding sentence, no payment or
adjustment shall be made upon any conversion on account of any dividends
accrued on the shares of this Series surrendered for conversion or on account
of any dividends on the Common Stock issued upon such conversion.
Shares of this Series shall be deemed to have been converted immediately
prior to the close of business on the day of the surrender of such shares for
conversion in accordance with the foregoing provisions, and the person or
persons entitled to receive the Common Stock issuable upon such conversion
shall be treated for all purposes as the record holder or holders of such
Common Stock at such time; provided, however, that any such surrender on any
date when the stock transfer books of the Corporation shall be closed shall
constitute the person or persons in whose name or names the certificates for
such shares of Common Stock are to be issued as the record holder or holders
thereof for all purposes immediately prior to the close of business on the
next succeeding day on which such stock transfer books are opened and such
conversion shall be at the conversion price in effect at such time on such
succeeding day. As promptly as practicable on or after the conversion date,
the Corporation shall issue and shall deliver at said office a certificate or
certificates for the number of full shares of Common Stock issuable upon such
conversion, together with a cash payment in lieu of any fraction of a share,
as hereinafter provided, to the person or persons entitled to receive the
same. In case shares of this Series are called for redemption, the right to
convert such shares shall cease and terminate at the close of business on the
redemption date, unless default shall be made in payment of the redemption
price.
(3) No fractional shares of Common Stock shall be issued upon
conversion of shares of this Series, but, instead of any fraction of a share
of Common Stock which would otherwise be issuable in respect of the aggregate
number of shares of this Series surrendered for conversion at one time by the
same holder, the Corporation shall pay a cash adjustment of such fraction in
an amount equal to the same fraction of the Closing Price of a share of Common
Stock on the date on which such shares of this Series were duly surrendered
for conversion, or, if such date is not a Trading Day, on the next
Trading Day.
<PAGE>
<PAGE> 43
(4) The conversion price shall be adjusted from time to time as
follows:
(A) In case the Corporation shall (i) pay a dividend or make a
distribution in its outstanding shares of Common Stock in Common Stock, (ii)
subdivide its outstanding shares of Common Stock, (iii) combine its
outstanding shares of Common Stock into a smaller number of shares, or (iv)
issue any shares by reclassification of its shares of Common Stock, the
conversion price in effect at the time of the record date for such dividend or
distribution or the effective date of such subdivision, combination or
reclassification shall be adjusted, effective at the opening of business on
the business day next following such record date or effective date, so that
the holder of any shares of this Series surrendered for conversion after such
record date or effective date shall be entitled to receive the number of
shares of capital stock of the Corporation which he would have owned or been
entitled to receive had such shares of this Series been converted immediately
prior to such time. If, as a result of an adjustment made pursuant to this
clause (A), the holder of any share thereafter surrendered for conversion
shall become entitled to receive shares of two or more classes of capital
stock of the Corporation, the Board of Directors (whose determination shall be
conclusive) shall determine the allocation of the adjusted conversion price
between or among shares of such classes of capital stock.
(B) In case the Corporation shall hereafter issue rights or
warrants to all holders of its Common Stock entitling them (for a period
expiring within forty-five days after the record date mentioned below) to
subscribe for or purchase shares of Common Stock at a price per share less
than the current market price per share (as determined pursuant to clause (D)
of this paragraph (4)) on the record date mentioned below, the conversion
price shall be adjusted so that the same shall equal the price determined by
multiplying the conversion price in effect immediately prior to such record
date by a fraction, of which the numerator shall be the number of shares of
Common Stock outstanding on such record date plus the number of shares of
Common Stock which the aggregate offering price of the total number of shares
of Common Stock so offered would purchase at such current market price and of
which the denominator shall be the number of shares of Common Stock
outstanding on such record date plus the number of additional shares of Common
Stock offered for subscription of purchase. Such adjustment shall become
effective at the opening of business on the business day next following the
record date for the determination of stockholders entitled to receive such
rights or warrants; and to the extent that shares of Common Stock are not
delivered after the expiration of such rights or warrants, the conversion
price shall be readjusted (but only with respect to shares of this Series
converted after such expiration) to the conversion price which would then be
in effect had the adjustments made upon the distribution of such rights or
warrants been made upon the basis of delivery of only the number of shares of
Common Stock actually delivered. The right to acquire shares of Common Stock
pursuant to the Corporation's Dividend Reinvestment Plan as in effect on
September 1, 1983, as the same may be amended from time to time, or pursuant
to any successor dividend reinvestment plan, shall not be deemed to be a right
giving rise to any adjustment to the conversion price. For the purposes of
this clause (B), the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Corporation. The
Corporation shall not issue any rights or warrants in respect of shares of
Common Stock held in the treasury of the Corporation.
<PAGE>
<PAGE> 44
(C) In case the Corporation shall distribute to all holders of
its Common Stock evidences of its indebtedness or assets (including
securities, but excluding any cash dividend or distributions out of surplus or
net profits legally available therefor and dividends referred to in clause (A)
of this paragraph (4)) or subscription rights or warrants (excluding those
referred to in clause (B) of this paragraph (4)), then in each such case the
conversion price shall be adjusted so that the same shall equal the price
determined by multiplying the conversion price in effect immediately prior to
the record date mentioned below by a fraction of which the numerator shall be
the current market price per share (determined as provided in clause (D) of
this paragraph (4)) of the Common Stock on such record date less the then fair
market value (as determined by the Board of Directors of the Corporation,
whose determination shall be conclusive) of the portion of the assets or
evidences of indebtedness so distributed or of such subscription rights or
warrants applicable to one share of Common Stock, and the denominator shall be
such current market price per share of the Common Stock. Such adjustment shall
become effective on the opening of business on the business day next following
the record date for the determination of stockholders entitled to receive such
distribution.
(D) For the purpose of any computation under clause (B) or (C) of
this paragraph (4), the current market price per share of Common Stock on any
date shall be deemed to be the average of the daily Closing Price for the
thirty consecutive Trading Days selected by the Corporation commencing not
more than forty-five Trading Days before the day in question.
(E) In any case in which this paragraph (4) shall require that an
adjustment as a result of any event become effective at the opening of
business on the business day next following a record date, the Corporation may
elect to defer until after the occurrence of such event (i) issuing to the
holder of any shares of this Series converted after such record date and
before the occurrence of such event the additional shares of Common Stock
issuable upon such conversion over and above the shares of Common Stock
issuable upon such conversion on the basis of the conversion price prior to
adjustment and (ii) paying to such holder any amount in cash in lieu of a
fractional share of Common Stock pursuant to paragraph (3) of this subdivision
(f); and, in lieu of the shares the issuance of which is so deferred, the
Corporation shall issue or cause its transfer agents to issue due bills or
other appropriate evidence of the right to receive such shares should such
event occur.
(F) Any adjustment in the conversion price otherwise required by
this paragraph (4) to be made may be postponed up to, but not beyond, three
years from the date on which it would otherwise be required to be made
provided that such adjustment (plus any other adjustments postponed pursuant
to this clause (F) and not theretofore made) would not require an increase or
decrease of more than $0.50 in such price and would not, if made, entitle the
holders of all then outstanding shares of this Series upon conversion to
receive additional shares of Common Stock equal in the aggregate to 3% or more
of the then issued and outstanding shares of Common Stock. All calculations
under this subdivision (f) shall be made to the nearest cent or to the nearest
1/100th of a share, as the case may be.
(G) The Corporation may (but shall not be obligated to) make such
reductions in the conversion price, in addition to those required by clauses
(A), (B) and (C) of this paragraph (4), as it considers to be advisable in
order that any event treated for Federal income tax purposes as a dividend of
stock or stock rights shall not be taxable to the recipients.
(5) Whenever the conversion price is adjusted as herein provided:
<PAGE>
<PAGE> 45
(A) the Corporation shall compute the adjusted conversion price
in accordance with this subdivision (f) and shall prepare a certificate signed
by the Treasurer of the Corporation setting forth the adjusted conversion
price, and such certificate shall forthwith be filed with the transfer agent
or agents for this Series; and
(B) a notice stating that the conversion price has been adjusted
and setting forth the adjusted conversion price shall, as soon as practicable,
be mailed to the holders of record of the outstanding shares of this Series.
(6) In case:
(A) the Corporation shall declare a dividend (or any other
distribution) on its Common Stock payable otherwise than in cash out of its
retained earnings; or
(B) the Corporation shall authorize the granting to the holders
of its Common Stock of rights to subscribe for or purchase any shares of
capital stock of any class or of any other rights; or
(C) of any reclassification of the capital stock of the
Corporation (other than a subdivision or combination of its outstanding shares
of Common Stock), or of any consolidation or merger to which the Corporation
is a party and for which approval of any stockholders of the Corporation is
required, or of the sale or transfer of all or substantially all the assets of
the Corporation; or
(D) of the voluntary or involuntary dissolution, liquidation or
winding up of the Corporation;
then the Corporation shall cause to be mailed to the transfer agent or agents
for this Series and to the holders of record of the outstanding shares of this
Series, at least 20 days (or 10 days in any case specified in clause (A) or
(B) of this paragraph (6)) prior to the applicable record date hereinafter
specified, a notice stating (x) the date on which a record is to be taken for
the purpose of such dividend, distribution or rights, or, 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 are to be determined, or (y)
the date on which such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up 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 deliverable upon such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding up.
(7) The Corporation shall at all times reserve and keep available,
free from pre-emptive rights, out of its authorized but unissued Common Stock,
for the purpose of effecting the conversion of the shares of this Series, the
full number of shares of Common Stock then deliverable upon the conversion of
all shares of this Series then outstanding, provided, that nothing contained
herein shall be construed to preclude the Corporation from satisfying its
obligations in respect of the conversion of the shares by delivery of
purchased shares of Common Stock which are held in the treasury of the
Corporation.
<PAGE>
<PAGE> 46
(8) The Corporation shall pay any and all taxes that may be payable
in respect of the issuance or delivery of shares of Common Stock on conversion
of shares of this Series pursuant hereto. The Corporation shall not, however,
be required to pay any tax which may be payable in respect of any transfer
involved in the issue and delivery of shares of Common Stock in a name other
than that in which the shares of this Series so converted were registered, and
no such issue or delivery shall be made unless and until the person requesting
such issue shall have paid to the Corporation the amount of any such tax, or
shall have established, to the satisfaction of the Corporation, that such tax
shall have been paid.
(9) For the purpose of this subdivision (f) the term "Common Stock"
shall include any stock of any class of the Corporation which has no
preference in respect of dividends or of amounts in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, and which is not subject to redemption by the Corporation.
However, except as otherwise provided in paragraph (11), shares issuable on
conversion of shares of this Series shall include only shares of the
classdesignated as Common Stock of the Corporation as of the original date of
issue of this Series or shares of any class or classes resulting from any
reclassification or reclassifications thereof and which have no preference in
respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Corporation and
which are not subject to redemption by the Corporation, provided that if at
any time there shall be more than one such resulting class, the shares of each
such class then so issuable shall be substantially in the proportion which the
total number of shares of such class resulting from all such reclassifications
bears to the total number of shares of all such classes resulting from all
such reclassifications.
(10) As used in this subdivision (f), the term "Closing Price" on
any day shall mean the reported last sales price regular way on such day on
the New York Stock Exchange, or, if not reported for such Exchange, on the
Composite Tape, or, in case no such reported sale takes place on such day, the
average of the reported closing bid and asked prices regular way on the New
York Stock Exchange, or, if the Common Stock is not listed or admitted to
trading on such Exchange, on the principal national securities exchange on
which the Common Stock is listed or admitted to trading, or, if not listed or
admitted to trading on any national securities exchange, the average of the
closing bid and asked prices in the over-the-counter market as furnished by
any New York Stock Exchange member firm selected from time to time by the
Corporation for that purpose, or, if no such quotations are available, the
fair market price as determined by the Corporation (whose determination shall
be conclusive); and the term "Trading Day" shall mean, so long as the Common
Stock is listed or admitted to trading on the New York Stock Exchange (or any
successor to such Exchange), a date on which the New York Stock Exchange (or
such successor) is open for the transaction of business, or, if the Common
Stock is not listed or admitted to trading on such Exchange, a date on which
the principal national securities exchange on which the Common Stock is listed
is open for the transaction of business, or, if the Common Stock is not listed
or admitted to trading on any national securities exchange, a date on which
any New York Stock Exchange member firm is open for the transaction of
business.
<PAGE>
<PAGE> 47
(11) If either of the following shall occur, namely: (a) any
consolidation or merger to which the Corporation is a party, other than a
consolidation or a merger in which consolidation or merger the Corporation is
a continuing corporation and which does not result in any reclassification
of, or change (other than a change in par value or from par value to no par
value or from no par value to par value, or as a result of a subdivision or
combination) in, outstanding shares of the Common Stock, or (b) any sale or
conveyance to another corporation of the property of the Corporation as an
entirety or substantially as an entirety; then the holder of each share then
outstanding shall have the right to convert such share only into the kind and
amount of shares of stock and other securities and property receivable upon
such consolidation, merger, sale or conveyance by a holder of the number of
shares of Common Stock issuable upon conversion of such share immediately
prior to such consolidation, merger, sale or conveyance, subject to
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in paragraph (4) of this subdivision (f). The
provisions of this paragraph (11) shall similarly apply to successive
consolidations, mergers, sales or conveyances.
(12) Notwithstanding anything else contained in this Section 10, any
funds which at any time shall have been deposited by the Corporation or on its
behalf with any paying agent for the purpose of paying dividends on or the
redemption price of any of the shares of this Series and which shall not be
required for such purposes because of the conversion of such shares, as
provided in this subdivision (f), shall, upon delivery to the paying agent of
evidence satisfactory to it of such conversion, after such conversion be
repaid to the Corporation by the paying agent.
(13) Any shares of this Series which shall at any time have been
converted into shares of Common Stock shall, after such conversion, have the
status of authorized but unissued shares of Preferred Stock, without
designation as to series until such shares are once more designated as part of
a particular series by the Board of Directors.
(g) Liquidation Rights. (1) Upon the liquidation, dissolution or
winding up of the Corporation, the holders of the shares of this Series shall
be entitled to receive out of the assets of the Corporation available for
distribution to its stockholders, before any payment or distribution shall be
made on the Common Stock, the amount of $25 per share, plus a sum equal to all
dividends (whether or not earned or declared) on such shares accrued and
unpaid thereon to the date of final distribution.
(2) The Preferred Stock of all series shall be preferred over the
Common Stock as to assets in the event of any liquidation, dissolution or
winding up of the Corporation, and in that event the holders of the Preferred
Stock of each series shall be entitled to receive, out of the assets of the
Corporation available for distribution to its stockholders, an amount
determined as provided in this Section 10 or pursuant to Article Fourth of
this Second Restated Certificate of Incorporation, as the case may be, for
every share of their holdings of the Preferred Stock of such series before any
distribution of the assets shall be made to the holders of the Common Stock;
and, if in the event of any such liquidation, dissolution or winding up the
holders of all series of the Preferred Stock shall have received all the
amounts to which they shall be entitled as aforesaid, the holders of the
Common Stock shall be entitled, to the exclusion of the holders of the
Preferred Stock of all series, to share ratably in all the assets of the
Corporation available for distribution to the stockholders then remaining
according to the number of shares of the Common Stock held by them
respectively. If upon any liquidation, dissolution or winding up of the
Corporation the amounts payable on or with respect to the Preferred Stock of
<PAGE>
<PAGE> 48
all series are not paid in full, the holders of shares of the Preferred Stock
of all series shall share ratably in any distribution of assets according to
the respective amounts which would be payable in respect of the shares held by
them upon such distribution if all amounts payable on or with respect to the
Preferred Stock of all series were paid in full.
(3) Neither the sale, lease or exchange (for cash, shares of stock,
securities or other consideration) of all or substantially all the property
and assets of the Corporation nor the merger or consolidation of the
Corporation into or with any other corporation or the merger or consolidation
of any other corporation into or with the Corporation shall be deemed to be a
liquidation, dissolution or winding up of the Corporation for the purposes
of this subdivision (g).
(h) Date of Cumulation. The term "date of cumulation" as used herein
with reference to the Preferred Stock of any series shall be deemed to mean
the date on which shares of the Preferred Stock of such series are first
issue.
In the event of the issue of additional shares of the Preferred Stock of
any then existing series, all dividends paid on the Preferred Stock of such
series prior to the issue of such additional shares, and all dividends
declared and payable to holders of record of the Preferred Stock of such
series on any date prior to the issue of such additional shares, shall
be deemed to have been paid on such additional shares.
11. $3.50 Cumulative Convertible Preferred Stock (Par Value $1 Per
Share). The following are the voting powers, designation, preferences and
relative, participating, optional or other special rights, and the
qualifications, limitations or restrictions thereof, of the series of
Preferred Stock designated by the Board of Directors of the Corporation as the
"$3.50 Cumulative Convertible Preferred Stock" by resolution dated February
25, 1993, consisting of 5,123,200 shares:
(a) Designation. The designation of the series of Preferred Stock
created by such resolution shall be $3.50 Cumulative Convertible Preferred
Stock (hereinafter in this Section 11 of Article Fourth called "this Series").
(b) Dividend Rate. Out of the surplus or net profits of the
Corporation legally available for dividends the holders of this Series shall
be entitled to receive, when and as declared by the Board of Directors,
dividends at the rate of $3.50 per share per annum, and no more, payable
quarterly on the tenth days of March, June, September and December in each
year (each such day being hereinafter called a dividend date and each
quarterly or shorter (in the case of the first such period) period ending with
a dividend date being hereinafter called a dividend period), in each case from
the date of cumulation (as defined in subdivision (h) of this Section 11) of
this Series (provided, however, that, if the date of cumulation of this Series
shall be a date less than 30 days prior to a dividend date, the dividend that
would otherwise be payable on such dividend date shall be payable on the next
succeeding dividend date), before any sum or sums shall be set aside pursuant
to subdivision (c) of this Section 11 or subdivision (b) or (f) of Section 3
of Article Fourth of this Second Restated Certificate of Incorporation for the
purchase or redemption of Preferred Stock of any series and before any
dividend shall be declared or paid upon or set apart for, or any other
distribution shall be ordered or made in respect of, or any payment shall be
made on account of the purchase or redemption of, the Preference Stock (as
such term is defined in this Second Restated Certificate of Incorporation) or
the Common Stock; and such dividends upon the Preferred Stock shall be
cumulative (whether or not in any dividend period or periods there shall be
<PAGE>
<PAGE> 49
surplus or net profits of the Corporation legally available for the payment of
such dividends), so that, if at any time dividends upon the outstanding
Preferred Stock of all series at the respective per annum rates determined for
such series from the date of cumulation of each such series to the end of the
then current dividend period shall not have been paid or declared and a sum
sufficient for the payment thereof set apart for such payment, the amount of
the deficiency shall be fully paid, but without interest, or dividends in such
amount declared on each such series and a sum sufficient for the payment
thereof set apart for such payment, before any sum or sums shall be set aside
pursuant to subdivision (c) of this Section 11 or subdivision (b) or (f) of
Section 3 of Article Fourth of this Second Restated Certificate of
Incorporation for the purchase or redemption of Preferred Stock of any series
and before any dividend shall be declared or paid upon or set apart for, or
any other distribution shall be ordered or made in respect of, or any payment
shall be made on account of the purchase or redemption of, the Preference
Stock or the Common Stock.
All dividends declared on the Preferred Stock for any dividend period
shall be declared pro rata so that the amounts of dividends per share declared
for such period on the Preferred Stock of different series that were
outstanding during such period shall in all cases bear to each other the same
proportions that the respective dividend rates of such series for such period
bear to each other (adjusted, as appropriate, if shares of any series were not
outstanding during all such period). No interest, or sum of money in lieu of
interest, shall be payable in respect of any dividend payment or payments
which may be in arrears. Dividends payable on this Series for any period less
than a full quarterly period shall be computed on the basis of the number of
days elapsed in a 360-day year consisting of twelve months of 30 days each.
(c) Redemption. (1) Shares of this Series shall be redeemable at any
time on or after March 10, 1996, at the option of the Corporation, either in
whole or in part, at a price equal to the sum of (a) the redemption price per
share set forth below for the date fixed for redemption for such shares:
Redemption date during 12-month Redemption
period beginning March 10 Price
_______________________________ __________
1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . $52.45
1997 . . . . . . . . . . . . . . . . . . . . . . . . . . . $52.10
1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . $51.75
1999 . . . . . . . . . . . . . . . . . . . . . . . . . . . $51.40
2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . $51.05
2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . $50.70
2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . $50.35
2003 and thereafter. . . . . . . . . . . . . . . . . . . . $50.00
plus (b) in each case a sum equal to all dividends (whether or not earned or
declared) on such shares accrued and unpaid thereon to the redemption date;
provided, however, that shares of this Series shall be redeemed only after
full cumulative dividends upon the Preferred Stock of all series then
outstanding shall have been paid for all past dividend periods, and after or
concurrently with making payment of, or declaring and setting apart for
payment, full dividends on the Preferred Stock of all series then outstanding
(except the shares of the Preferred Stock to be redeemed) to the end of the
current dividend period.
(2) If less than all the outstanding shares of this Series are to be
redeemed by the Corporation, the number of shares to be redeemed shall be
determined by the Board of Directors and the shares to be redeemed shall be
determined by lot or pro rata or in such fair and equitable other manner as
may be prescribed by resolution of the Board of Directors.
<PAGE>
<PAGE> 50
(3) Notice of any redemption of shares of this Series, specifying
the time and place of redemption, the redemption price and that the dividends
on the shares to be redeemed shall cease to accrue on the redemption date or
date of deposit referred to below, shall be mailed by first-class mail,
postage prepaid, to each holder of record of the shares to be redeemed, at
such holder's address of record, not less than 30 days prior to the redemption
date; if less than all the shares owned by a stockholder are then to be
redeemed, the notice shall also specify the number of shares thereof which are
to be redeemed and the numbers of the certificates representing such shares.
Upon surrender in accordance with such notice of the certificates for the
number of shares to be redeemed, duly endorsed in blank or accompanied by
proper instruments of assignment or transfer thereof duly endorsed in blank,
such shares shall be redeemed by the Corporation at the applicable redemption
price. If less than all the shares represented by any such certificate shall
be redeemed, a new certificate shall be issued representing the unredeemed
shares without cost to the holder thereof. From and after the date fixed in
any such notice as the date of redemption (unless default shall be made by the
Corporation in providing moneys for the payment of the redemption price
pursuant to such notice), or, if the Corporation shall so elect, from and
after a date (hereinafter called the date of deposit), prior to the date fixed
as the date of redemption, on which the Corporation shall provide moneys for
the payment of the redemption price by depositing the amount thereof for the
account of the holders of the shares of this Series entitled thereto with a
bank or trust company doing business in the Borough of Manhattan in The City
of New York, and having capital and surplus of at least ten million dollars
($10,000,000) pursuant to notice of such election included in the notice of
redemption specifying the date on which such deposit will be made, all
dividends on the shares of this Series called for redemption shall cease to
accrue and all rights of the holders thereof as stockholders of the
Corporation, except the right to receive the redemption price as hereinafter
provided and, in the case of such deposit, any conversion rights not
theretofore expired, shall cease and terminate, and such shares shall not
after the redemption date be deemed to be outstanding. After the deposit of
such amount with such bank or trust company, the respective holders of record
of the shares of this Series to be redeemed shall be entitled to receive the
redemption price at any time upon actual delivery to such bank or trust
company of certificates for the number of shares to be redeemed, duly endorsed
in blank or accompanied by proper instruments of assignment and transfer
thereof duly endorsed in blank. Any moneys so deposited which shall remain
unclaimed by the holders of such shares of this Series at the end of six (6)
years after the redemption date, together with any interest thereon which
shall be allowed by the bank or trust company with which the deposit shall
have been made, shall be paid by such bank or trust company to the
Corporation, and thereafter the holders of shares of this Series redeemed on
such redemption date shall look only to the Corporation for the payment of the
redemption price thereof. Any interest accrued on any funds deposited with any
such bank or trust company shall belong to the Corporation, and shall be paid
to it from time to time on demand.
(4) Any shares of this Series which shall at any time have been
redeemed, shall, after such redemption, have the status of authorized but
unissued shares of Preferred Stock, without designation as to series until
such shares are once more designated as part of a particular series by the
Board of Directors.
(5) The holders of this Series shall be entitled to receive the
redemption payments specified in this subdivision (c) if, when and as such
payments shall be authorized by the Board of Directors, out of the assets of
the Corporation legally available therefor.
<PAGE>
<PAGE> 51
(d) Distributions to Holders of Preference Stock and Common Stock. Out
of any surplus or net profits of the Corporation legally available for
dividends remaining after full cumulative dividends upon the Preferred Stock
of all series then outstanding shall have been paid for all past dividend
periods, and after or concurrently with making payment of, or declaring and
setting apart for payment, full dividends on the Preferred Stock of all series
then outstanding to the end of the then current dividend period and after the
Corporation shall have complied with the provisions in respect of any and all
amounts then or theretofore required to be set aside or applied in respect of
any sinking fund or purchase fund with respect to the Preferred Stock of each
series then outstanding and entitled to the benefit of a sinking fund or
purchase fund, and shall have made provision for compliance in respect of the
current sinking fund or purchase fund period for each such series of Preferred
Stock, then and not otherwise, the holders of the Preference Stock and the
Common Stock shall, subject to the provisions of this Second Restated
Certificate of Incorporation, be entitled to receive such dividends as may
from time to time be declared by the Board of Directors.
(e) Voting. (1) Except for such voting powers as shall be granted to
the holders of shares of this Series by this subdivision (e) or by law, and
except for such voting powers, if any, as shall be granted to holders of
shares of other series of Preferred Stock or Preference Stock, as contemplated
by this Second Restated Certificate of Incorporation or by law, voting power
shall be vested exclusively in the Common Stock. Holders of stock of whatever
class entitled to vote shall be entitled to one vote for each share of stock
held by them.
(2) If at the time of any annual meeting of stockholders of the
Corporation for the election of directors a default in preference dividends,
as the term "default in preference dividends" is hereinafter defined, shall
exist, (i) the holders of the Preferred Stock, voting separately as a class
and without regard to series, shall have the right to elect two members of the
Board of Directors but, except as provided in the following clause (ii), shall
not be entitled to vote in the election of any of the other directors of the
Corporation and (ii) if at the time of such meeting there shall be outstanding
shares of more than one series of the Preferred Stock, the holders of the
Preferred Stock of each series, if any, of which more than 5,000,000 shares
are then outstanding, voting separately as a series, shall have the right to
elect one member of the Board of Directors but, except as provided in the
foregoing clause (i), shall not be entitled to vote in the election of any of
the other directors of the Corporation; and the holders of the Common Stock,
voting separately as a class, shall be entitled to elect the other directors
of the Corporation, subject to the voting rights, if any, granted to the
holders of the Preference Stock, but shall not be entitled to vote in the
election of the directors of the Corporation to be elected as provided in the
foregoing clauses (i) and (ii). Whenever a default in preference dividends
shall commence to exist, the Corporation, upon the written request of the
holders of 5% or more of the outstanding shares of Preferred Stock or the
holders of 5% or more of the outstanding shares of any series of Preferred
Stock that would be entitled to elect a director of the Corporation pursuant
to clause (ii) of the preceding sentence if an annual meeting of the
stockholders of the Corporation for the election of directors were then being
held, shall call a special meeting of the holders of the Preferred Stock and
if, at the time of such request, there shall be outstanding shares of more
than one series of the Preferred Stock, shall also call a special meeting of
the holders of the Preferred Stock of each series, if any, of which more than
5,000,000 shares are then outstanding, such special meeting or meetings to be
held within 120 days after the date on which such request is received by the
Corporation for the purpose of enabling such holders to elect members of the
Board of Directors as provided in clauses (i) and (ii) of the preceding
<PAGE>
<PAGE> 52
sentence; provided, however, that such special meeting or meetings need not be
called if an annual meeting of stockholders of the Corporation for the
election of directors shall be scheduled to be held within such 120 days; and
provided further that in lieu of any such special meeting, the election of the
directors to be elected thereat may be effected by the written consent of the
holders of a majority of the outstanding shares that would be entitled to be
voted upon at such special meeting. Prior to any such special meeting or
meetings, the number of directors of the Corporation shall be increased to the
extent necessary to provide as additional places on the Board of Directors the
directorships to be filled by the directors to be elected thereat. Any
director elected as aforesaid by the holders of shares of the Preferred Stock
or of any series thereof shall cease to serve as such director whenever a
default in preference dividends shall cease to exist. If, prior to the end of
the term of any director elected as aforesaid by the holders of shares of the
Preferred Stock or of any series thereof, or elected by the holders of any
other class of stock or series thereof, a vacancy in the office of such
director shall occur by reason of death, resignation, removal or disability,
or for any other cause, such vacancy shall be filled for the unexpired term in
the manner provided in the By-laws; provided, however, that if such vacancy
shall be filled by election by the stockholders at a meeting thereof, the
right to fill such vacancy shall be vested in the holders of that class of
stock or series thereof which elected the director the vacancy in the office
of whom is so to be filled, unless, in any such case, no default in preference
dividends shall exist at the time of such election. For the purposes of this
subdivision (e), a "default in preference dividends" shall be deemed to have
occurred whenever the amount of dividends in arrears upon any series of the
Preferred Stock shall be equivalent to six full quarter-yearly dividends or
more, and, having so occurred, such default in preference dividends shall be
deemed to exist thereafter until, but only until, all dividends in arrears on
all shares of the Preferred Stock then outstanding, of each and every series,
shall have been paid. The term "dividends in arrears" whenever used in this
subdivision (e) with reference to the Preferred Stock of any series shall be
deemed to mean (whether or not in any dividend period in respect of which such
term is used there shall have been surplus or net profits of the Corporation
legally available for the payment of dividends) that amount which shall be
equal to cumulative dividends at the rate for the Preferred Stock of such
series for all past quarterly dividend periods less the amount of all
dividends paid, or deemed paid, for all such periods upon such Preferred
Stock. Nothing herein contained shall be deemed to prevent an increase in the
number of directors of the Corporation pursuant to its By-laws as from time to
time in effect so as to provide as additional places on the Board of Directors
the directorships to be filled by the directors so to be elected by the
holders of the Preferred Stock or of any series thereof, or to prevent any
other change in the number of the directors of the Corporation.
(3) So long as any shares of the Preferred Stock of any series shall
be outstanding, (i) the Corporation shall not, without the affirmative vote or
written consent of the holders of two-thirds of the aggregate number of shares
of the Preferred Stock of all series at the time outstanding, considered as a
class without regard to series,
(A) alter or change the powers, preferences or rights given to
the Preferred Stock by this Second Restated Certificate of Incorporation so as
to affect the Preferred Stock adversely, or
(B) authorize, create or increase the number of authorized shares
of any class of stock ranking, either as to payment of dividends or
distribution of assets, prior to the Preferred Stock; and
<PAGE>
<PAGE> 53
(ii) the Corporation shall not, without the affirmative vote or written
consent of the holders of a majority of the aggregate number of shares of the
Preferred Stock of all series at the time outstanding, considered as a class
without regard to series, increase the authorized amount of the Preferred
Stock or authorize or create any class of stock ranking, either as to payment
of dividends or distribution of assets, on a parity with the Preferred
Stock.
(4) So long as any shares of this Series shall be outstanding, the
Corporation shall not, without the affirmative vote or written consent of the
holders of two-thirds of the number of shares of this Series at the time
outstanding, alter or change the powers, preferences or rights given to the
shares of this Series by this Second Restated Certificate of Incorporation so
as to affect the shares of this Series adversely.
(f) Conversion Rights. The holders of shares of this Series shall have
the right, at their option, to convert each share of this Series into 2.392
shares of Common Stock of the Corporation at any time after 40 days from the
date of cumulation on and subject to the following terms and conditions.
(1) The shares of this Series shall be convertible at the office of
any transfer agent for this Series, and at such other office or offices, if
any, as the Board of Directors may designate, into fully paid and
nonassessable shares (calculated as to each conversion to the nearest 1/100th
of a share) of Common Stock of the Corporation, at the conversion price,
determined as hereinafter provided, in effect at the time of conversion, each
share of this Series being taken at $50.00 for the purpose of such conversion.
The price at which shares of Common Stock shall be delivered upon conversion
(herein called the "conversion price") shall be initially $20.90 per share of
Common Stock. The conversion price shall be adjusted as provided in paragraph
(4) of this subdivision (f).
(2) In order to convert shares of this Series into Common Stock the
holder thereof shall surrender at any office hereinabove mentioned the
certificate or certificates therefor, duly endorsed in blank or accompanied by
proper instruments of assignment and transfer thereof duly endorsed in blank,
together with any payment required by this paragraph (2) and transfer tax
stamps or funds therefor, if required pursuant to paragraph (8) of this
subdivision (f), and give written notice to the Corporation at said office
that he elects to convert such shares. Shares of this Series surrendered for
conversion during the period from the close of business on any record date for
the payment of a dividend on such shares to the opening of business on the
date for payment of such dividend shall (except in the case of shares which
have been called for redemption on a redemption date within such period) be
accompanied by payment of an amount equal to the dividend payable on such
dividend payment date on the shares of this Series being surrendered for
conversion. Except as provided in the preceding sentence, no payment or
adjustment shall be made upon any conversion on account of any dividends
accrued on the shares of this Series surrendered for conversion or on account
of any dividends on the Common Stock issued upon such conversion.
<PAGE>
<PAGE> 54
Shares of this Series shall be deemed to have been converted immediately
prior to the close of business on the day of the surrender of such shares for
conversion in accordance with the foregoing provisions, and the person or
persons entitled to receive the Common Stock issuable upon such conversion
shall be treated for all purposes as the record holder or holders of such
Common Stock at such time; provided, however, that any such surrender on any
date when the stock transfer books of the Corporation shall be closed shall
constitute the person or persons in whose name or names the certificates for
such shares of Common Stock are to be issued as the record holder or holders
thereof for all purposes immediately prior to the close of business on the
next succeeding day on which such stock transfer books are opened and such
conversion shall be at the conversion price in effect at such time on such
succeeding day. As promptly as practicable on or after the conversion date,
the Corporation shall issue and shall deliver at said office a certificate or
certificates for the number of full shares of Common Stock issuable upon such
conversion, together with a cash payment in lieu of any fraction of a share,
as hereinafter provided, to the person or persons entitled to receive the
same. In case shares of this Series are called for redemption, the right to
convert such shares shall cease and terminate at the close of business on the
redemption date, unless default shall be made in payment of the redemption
price.
(3) No fractional shares of Common Stock shall be issued upon
conversion of shares of this Series, but, instead of any fraction of a share
of Common Stock which would otherwise be issuable in respect of the aggregate
number of shares of this Series surrendered for conversion at one time by the
same holder, the Corporation shall pay a cash adjustment of such fraction in
an amount equal to the same fraction of the Closing Price of a share of Common
Stock on the date on which such shares of this Series were duly surrendered
for conversion, or, if such date is not a Trading Day, on the next Trading
Day.
(4) The conversion price shall be adjusted from time to time as
follows:
(A) In case the Corporation shall (i) pay a dividend or make a
distribution on its outstanding shares of Common Stock in Common Stock, (ii)
subdivide its outstanding shares of Common Stock, (iii) combine its
outstanding shares of Common Stock into a smaller number of shares, or (iv)
issue any shares by reclassification of its shares of Common Stock, the
conversion price in effect at the time of the record date for such dividend or
distribution or the effective date of such subdivision, combination or
reclassification shall be adjusted, effective at the opening of business on
the business day next following such record date or effective date, so that
the holder of any shares of this Series surrendered for conversion after such
record date or effective date shall be entitled to receive the number of
shares of capital stock of the Corporation which he would have owned or been
entitled to receive had such shares of this Series been converted immediately
prior to such time. If, as a result of an adjustment made pursuant to this
clause (A), the holder of any share thereafter surrendered for conversion
shall become entitled to receive shares of two or more classes of capital
stock of the Corporation, the Board of Directors (whose determination shall be
conclusive) shall determine the avocation of the adjusted conversion price
between or among shares of such classes of capital stock.
<PAGE>
<PAGE> 55
(B) In case the Corporation shall hereafter issue rights or
warrants to all holders of its Common Stock entitling them (for a period
expiring within 45 days after the record date mentioned below) to subscribe
for or purchase shares of Common Stock at a price per share less than the
current market price per share (as determined pursuant to clause (D) of this
paragraph (4)) on the record date mentioned below, the conversion price shall
be adjusted so that the same shall equal the price determined by multiplying
the conversion price in effect immediately prior to such record date by a
fraction, of which the numerator shall be the number of shares of Common Stock
outstanding on such record date plus the number of shares of Common Stock
which the aggregate offering price of the total number of shares of Common
Stock so offered would purchase at such current market price and of which the
denominator shall be the number of shares of Common Stock outstanding on such
record date plus the number of additional shares of Common Stock offered for
subscription or purchase. Such adjustment shall become effective at the
opening of business on the business day next following the record date for the
determination of stockholders entitled to receive such rights or warrants; and
to the extent that shares of Common Stock are not delivered after the
expiration of such rights or warrants, the conversion price shall be
readjusted (but only with respect to shares of this Series converted after
such expiration) to the conversion price which would then be in effect had the
adjustments made upon the distribution of such rights or warrants been made
upon the basis of delivery of only the number of shares of Common Stock
actually delivered. The right to acquire shares of Common Stock pursuant to
the Corporation's Dividend Reinvestment Plan as in effect on March 2, 1993, as
the same may be amended from time to time, or pursuant to any successor
dividend reinvestment plan, shall not be deemed to be a right giving rise to
any adjustment to the conversion price. For the purposes of this clause (B),
the number of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Corporation. The Corporation shall not
issue any rights or warrants in respect of shares of Common Stock held in the
treasury of the Corporation.
(C) In case the Corporation shall distribute to all holders of
its Common Stock evidences of its indebtedness or assets (including
securities, but excluding any cash dividend or distributions out of surplus or
net profits legally available therefor and dividends referred to in clause (A)
of this paragraph (4)) or subscription rights or warrants (excluding those
referred to in clause (B) of this paragraph (4)), then in each such case the
conversion price shall be adjusted so that the same shall equal the price
determined by multiplying the conversion price in effect immediately prior to
the record date mentioned below by a fraction of which the numerator shall be
the current market price per share (determined as provided in clause (D) of
this paragraph (4)) of the Common Stock on such record date less the then fair
market value (as determined by the Board of Directors of the Corporation,
whose determination shall be conclusive) of the portion of the assets or
evidences of indebtedness so distributed or of such subscription rights or
warrants applicable to one share of Common Stock, and the denominator shall be
such current market price per share of the Common Stock. Such adjustment shall
become effective on the opening of business on the business day next following
the record date for the determination of stockholders entitled to receive such
distribution. The right of holders of Common Stock to acquire Series A Junior
Participating Preferred Stock of Bethlehem pursuant to the Corporation's
Stockholder Rights Plan, as the same may be amended from time to time, shall
not be deemed to be a right giving rise to any adjustment to the conversion
price.
(D) For the purpose of any computation under clause (B) or (C) of
this paragraph (4), the current market price per share of Common Stock on any
date shall be deemed to be the average of the daily Closing Price for the 30
consecutive Trading Days selected by the Corporation commencing not more than
45 Trading Days before the day in question.
<PAGE>
<PAGE> 56
(E) In any case in which this paragraph (4) shall require that an
adjustment as a result of any event become effective at the opening of
business on the business day next following a record date, the Corporation may
elect to defer until after the occurrence of such event (i) issuing to the
holder of any shares of this Series converted after such record date and
before the occurrence of such event the additional shares of Common Stock
issuable upon such conversion over and above the shares of Common Stock
issuable upon such conversion on the basis of the conversion price prior to
adjustment and (ii) paying to such holder any amount in cash in lieu of a
fractional share of Common Stock pursuant to paragraph (3) of this subdivision
(f); and, in lieu of the shares the issuance of which is so deferred, the
Corporation shall issue or cause its transfer agents to issue due bills or
other appropriate evidence of the right to receive such shares should such
event occur.
(F) Any adjustment in the conversion price otherwise required by
this paragraph (4) to be made may be postponed up to, but not beyond, three
years from the date on which it would otherwise be required to be made
provided that such adjustment (plus any other adjustments postponed pursuant
to this clause (F) and not theretofore made) would not require an increase or
decrease of more than $0.50 in such price and would not, if made, entitle the
holders of all then outstanding shares of this Series upon conversion to
receive additional shares of Common Stock equal in the aggregate to 3% or more
of the then issued and outstanding shares of Common Stock. All calculations
under this subdivision (f) shall be made to the nearest cent or to the nearest
1/l00th of a share, as the case may be.
(G) The Corporation may (but shall not be obligated to) make such
reductions in the conversion price, in addition to those required by clauses
(A), (B) and (C) of this paragraph (4), as it considers to be advisable in
order to avoid or diminish any income tax to a recipient of any dividend of
stock (or rights to acquire stock) or from any event treated as such for
Federal income tax purposes.
(5) Whenever the conversion price is adjusted as herein provided:
(A) the Corporation shall compute the adjusted conversion price
in accordance with this subdivision (f) and shall prepare a certificate signed
by the Treasurer of the Corporation setting forth the adjusted conversion
price, and such certificate shall forthwith be filed with the transfer agent
or agents for this Series; and
(B) a notice stating that the conversion price has been adjusted
and setting forth the adjusted conversion price shall, as soon as practicable,
be mailed to the holders of record of the outstanding shares of this Series.
(6) In case:
(A) the Corporation shall declare a dividend (or any other
distribution) on its Common Stock payable otherwise than in cash out of its
retained earnings; or
(B) the Corporation shall authorize the granting to the holders
of its Common Stock of rights to subscribe for or purchase any shares of
capital stock of any class or of any other rights; or
(C) of any reclassification of the capital stock of the
Corporation (other than a subdivision or combination of its outstanding shares
of Common Stock), or of any consolidation or merger to which the Corporation
is a party and for which approval of any stockholders of the Corporation is
required, or of the sale or transfer of all or substantially all the assets of
the Corporation; or
<PAGE>
<PAGE> 57
(D) of the voluntary or involuntary dissolution, liquidation or
winding up of the Corporation;
then the Corporation shall cause to be mailed to the transfer agent or agents
for this Series and to the holders of record of the outstanding shares of this
Series, at least 20 days (or 10 days in any case specified in clause (A) or
(B) of this paragraph (6)) prior to the applicable record date hereinafter
specified, a notice stating (x) the date on which a record is to be taken for
the purpose of such dividend, distribution or rights, or, 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 are to be determined, or (y)
the date on which such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up 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 deliverable upon such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding up.
(7) The Corporation shall at all times reserve and keep available,
free from preemptive rights, out of its authorized but unissued Common Stock,
for the purpose of effecting the conversion of the shares of this Series, the
full number of shares of Common Stock then deliverable upon the conversion of
all shares of this Series then outstanding, provided, that nothing contained
herein shall be construed to preclude the Corporation from satisfying its
obligations in respect of the conversion of the shares by delivery of
purchased shares of Common Stock which are held in the treasury of the
Corporation.
(8) The Corporation shall pay any and all taxes that may be payable
in respect of the issuance or delivery of shares of Common Stock on conversion
of shares of this Series pursuant hereto. The Corporation shall not, however,
be required to pay any tax which may be payable in respect of any transfer
involved in the issue and delivery of shares of Common Stock in a name other
than that in which the shares of this Series so converted were registered, and
no such issue or delivery shall be made unless and until the person requesting
such issue shall have paid to the Corporation the amount of any such tax, or
shall have established, to the satisfaction of the Corporation, that such tax
shall have been paid.
(9) For the purpose of this subdivision (f) the term "Common Stock"
shall include any stock of any class of the Corporation which has no
preference in respect of dividends or of amounts in the event of any voluntary
or involuntary liquidation, dissolution or winding up of the Corporation, and
which is not subject to redemption by the Corporation. However, except as
otherwise provided in paragraph (11) of this subdivision (f), shares issuable
on conversion of shares of this Series shall include only shares of the class
designated as Common Stock of the Corporation as of the original date of issue
of this Series or shares of any class or classes resulting from any
reclassification or reclassifications thereof and which have no preference in
respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Corporation and
which are not subject to redemption by the Corporation, provided that if at
any time there shall be more than one such resulting class, the shares of each
such class then so issuable shall be substantially in the proportion which the
total number of shares of such class resulting from all such reclassification
bears to the total number of shares of all such classes resulting from all
such reclassifications.
<PAGE>
<PAGE> 58
(10) As used in this subdivision (f), the term "Closing Price" on
any day shall mean the reported last sales price regular way on such day on
the New York Stock Exchange, or, if not reported for such Exchange, on the New
York Stock Exchange Composite Tape, or, in case no such reported sale takes
place on such day, the average of the reported closing bid and asked prices
regular way on the New York Stock Exchange, or, if the Common Stock is not
listed or admitted to trading on such Exchange, on the principal national
securities exchange on which the Common Stock is listed or admitted to
trading, or, if not listed or admitted to trading on any national securities
exchange, the average of the closing bid and asked prices in the
over-the-counter market as furnished by any New York Stock Exchange member
firm selected from time to time by the Corporation for that purpose, or, if no
such quotations are available, the fair market price as determined by the
Corporation (whose determination shall be conclusive); and the term "Trading
Day" shall mean, so long as the Common Stock is listed or admitted to trading
on the New York Stock Exchange (or any successor to such Exchange), a date on
which the New York Stock Exchange (or such successor) is open for the
transaction of business, or, if the Common Stock is not listed or admitted to
trading on such Exchange, a date on which the principal national securities
exchange on which the Common Stock is listed is open for the transaction of
business, or, if the Common Stock is not listed or admitted to trading on any
national securities exchange, a date on which any New York Stock Exchange
member firm is open for the transaction of business.
(11) If either of the following shall occur, namely: (a) any
consolidation or merger to which the Corporation is a party, other than a
consolidation or a merger in which consolidation or merger the Corporation is
a continuing corporation and which does not result in any reclassification of,
or change (other than a change in par value or from par value to no par value
or from no par value to par value, or as a result of a subdivision or
combination) in, outstanding shares of the Common Stock, or (b) any sale or
conveyance to another corporation of the property of the Corporation as an
entirety or substantially as an entirety; then the holder of each share then
outstanding shall have the right to convert such share only into the kind and
amount of shares of stock and other securities and property receivable upon
such consolidation, merger, sale or conveyance by a holder of the number of
shares of Common Stock issuable upon conversion of such share immediately
prior to such consolidation, merger, sale or conveyance, subject to
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in paragraph (4) of this subdivision (f). The
provisions of this paragraph (11) shall similarly apply to successive
consolidations, mergers, sales or conveyances.
(12) Notwithstanding anything elsewhere contained in this Section
11, any funds which at any time shall have been deposited by the Corporation
or on its behalf with any paying agent for the purpose of paying dividends on
or the redemption price of any of the shares of this Series and which shall
not be required for such purposes because of the conversion of such shares, as
provided in this subdivision (f), shall, upon delivery to the paying agent of
evidence satisfactory to it of such conversion, after such conversion be
repaid to the Corporation by the paying agent.
(13) Any shares of this Series which shall at any time have been
converted into shares of Common Stock shall, after such conversion, have the
status of authorized but unissued shares of Preferred Stock, without
designation as to series until such shares are once more designated as part of
a particular series by the Board of Directors.
<PAGE>
<PAGE> 59
(g) Liquidation Rights. (1) Upon the liquidation, dissolution or
winding up of the Corporation, the holders of the shares of this Series shall
be entitled to receive out of the assets of the Corporation available for
distribution to its stockholders, before any payment or distribution shall be
made to the holders of the Preference Stock or the Common Stock, the amount of
$50 per share, plus a sum equal to all dividends (whether or not earned or
declared) on such shares accrued and unpaid thereon to the date of final
distribution.
(2) The Preferred Stock of all series shall be preferred over the
Preference Stock and the Common Stock as to assets in the event of any
liquidation, dissolution or winding up of the Corporation, and in that event
the holders of the Preferred Stock of each series shall be entitled to
receive, out of the assets of the Corporation available for distribution to
its stockholders, an amount determined as provided in this Section 11 or
pursuant to Article Fourth of this Second Restated Certificate of
Incorporation, as the case may be, for every share of their holdings of the
Preferred Stock of such series before any distribution of the assets shall be
made to the holders of the Preference Stock or the Common Stock; and, if in
the event of any such liquidation, dissolution or winding up the holders of
all series of the Preferred Stock shall have received all the amounts to which
they shall be entitled as aforesaid, the holders of the Preference Stock and
the Common Stock shall be entitled, to the exclusion of the holders of the
Preferred Stock of all series, to share ratably in all the assets of the
Corporation available for distribution to the stockholders then remaining
according to the number of shares and terms of the Preference Stock and the
Common Stock held by them respectively. If upon any liquidation, dissolution
or winding up of the Corporation the amounts payable on or with respect to the
Preferred Stock of all series are not paid in full, the holders of shares of
the Preferred Stock of all series shall share ratably in any distribution of
assets according to the respective amounts which would be payable in respect
of the shares held by them upon such distribution if all amounts payable on or
with respect to the Preferred Stock of all series were paid in full.
(3) Neither the sale, lease or exchange (for cash, shares of stock,
securities or other consideration) of all or substantially all the property
and assets of the Corporation nor the merger or consolidation of the
Corporation into or with any other corporation or the merger or consolidation
of any other corporation into or with the Corporation shall be deemed to be a
liquidation, dissolution or winding up of the Corporation for the purposes of
this subdivision (g).
(h) Date of Cumulation. The term "date of cumulation" as used in this
Section 11 with reference to the Preferred Stock of any series shall be deemed
to mean the date on which shares of the Preferred Stock of such series are
first issued.
In the event of the issue of additional shares of the Preferred Stock of
any then existing series, all dividends paid on the Preferred Stock of such
series prior to the issue of such additional shares, and all dividends
declared and payable to holders of record of the Preferred Stock of such
series on any date prior to the issue of such additional shares, shall be
deemed to have been paid on such additional shares.
12. Employee Stock Ownership Plan Convertible Preference Stock, Series A
(Par Value $1 Per Share; Stated Value $32 Per Share). The following are the
voting powers, designation, preferences and relative, participating, optional
or other special rights, and the qualifications, limitations or restrictions
thereof, of the series of Preference Stock designated by the Board of
Directors of the Corporation as the "Employee Stock Ownership Plan Convertible
Preference Stock, Series A" by resolution dated September 30, 1987, consisting
of 6,000,000 shares:
<PAGE>
<PAGE> 60
(a) Designation and Issuance. The designation of the series of
Preference Stock created by such resolution shall be Employee Stock Ownership
Plan Convertible Preference Stock, Series A (hereinafter in this Section 12 of
Article Fourth called "this Series"). As more fully described in the Employee
Stock Ownership Plan (the "ESOP") established in connection with the
USWA-Bethlehem 1986 Labor Agreement (the "Labor Agreement"), there has been
established a trust (the "Trust") for the benefit of Employees (as defined in
the ESOP) participating in the ESOP, and all shares of this Series shall be
issued to and shall be held by the Trust and shall not, without the prior
written consent of the Corporation, be transferable (other than to the
Corporation upon redemption or conversion, as provided herein) by the Trust.
(b) Dividend Rate and Payments. (1) Out of the surplus or net profits
of the Corporation legally available for the payment of dividends, the holders
of shares of this Series shall be entitled to receive, when and as such
dividends may be declared by the Board of Directors, dividends at the rate of
$1.60 per share per year, payable annually on April 1 of each year (each such
day being hereinafter called a dividend date and each annual or shorter (in
the case of the first such period) period ending with a dividend date being
hereinafter called a dividend period), in each case from the date of
cumulation (as defined in subdivision (h) of this Section 12) of such shares
of this Series, before any payment shall be made on account of the purchase or
redemption of the shares of any series of the Preference Stock, or any
dividend shall be declared or paid upon or set apart for, or any other
distribution shall be made in respect of, or any payment shall be made on
account of the purchase of the Common Stock.
(2) Only those shares of this Series outstanding on any record date
established by the Board of Directors shall be entitled to the dividend
payable on the following dividend date, but all such outstanding shares shall
be entitled to the full annual dividend, even if some of or all such shares
were not outstanding during all of the preceding year.
(3) No dividend shall be declared or paid upon or set apart for, and
no other distribution shall be ordered or made in respect of, nor shall any
payment be made on account of the purchase or redemption of, any shares of
this Series at any time that the Corporation, due to any failure to make
payments with respect to any outstanding shares of Preferred Stock, shall be
precluded from paying any dividends on or making other payments with respect
to its Preference Stock. The full amount of dividends which holders of shares
of this Series shall be entitled to receive shall be paid in full before any
dividend, other than a dividend payable in shares of Common Stock, shall be
declared or paid upon or set apart for, or any other distribution shall be
ordered or made in respect of, or any payment shall be made on account of the
purchase of, the Common Stock of the Corporation. No interest, or sum of money
in lieu of interest, shall be payable in respect of any dividend payment or
payments which may be in arrears.
(4) Dividends payable upon the shares of this Series shall be
cumulative (whether or not in any dividend period or periods there shall be
surplus or net profits of the Corporation legally available for the payment of
such dividends), so that, if at any time dividends upon the outstanding shares
of this Series at the per annum rate set forth above from the date of
cumulation through the preceding dividend date shall not have been paid or
declared and a sum sufficient for the payment thereof set apart for such
payment, the amount of the deficiency shall be fully paid, but without
interest, or dividends in such amount declared on the shares of this Series
and a sum sufficient for the payment thereof set apart for such payment,
before any payment shall be made on account of the purchase or redemption of
the shares of any series of the Preference Stock, or any dividend shall be
declared or paid upon or set apart for, or any other distribution shall be
made in respect of, or any payment shall be made in respect of, or any payment
shall be made on account of the purchase of, the Common Stock.<PAGE>
<PAGE> 61
(5) Each such annual dividend shall be payable, at the option of the
Board of Directors of the Corporation, either (i) in shares of this Series,
with such shares being valued for such purpose at their stated value of $32.00
per share, (ii) in shares of Common Stock of the Corporation, with the Common
Stock being valued for such purpose at the average Closing Price (as defined
in subdivision (f) of this Section 12) on the New York Stock Exchange for the
20 Trading Days (as defined in subdivision (f) of this Section 12) ended on
the last business day in March preceding the date of payment or (iii) in
cash.
(6) Shares of this Series shall rank on a parity as to dividends
with any other series of Preference Stock unless the provisions of such other
series provide otherwise; provided, however, that each such series of
Preference Stock so ranking on a parity may bear dividends payable at rates
and on dates different from any other such series of Preference Stock.
(c) Redemption and Mandatory Conversion. (1) Shares of this Series
shall be redeemable at the option of the Corporation at any time, either in
whole or in part, at a redemption price (the "Redemption Price") of $32.00
per share; provided, however, that shares of this Series shall be redeemed
only after full cumulative dividends upon all shares of this Series then
outstanding shall have been paid for all past dividend periods, and after or
concurrently with making payment of, or declaring or setting apart for
payment, full dividends on all shares of this Series then outstanding (except
the shares of this Series to be redeemed) to the end of the current dividend
period. In the case of any redemption of less than all the outstanding shares
of this Series, such redemption shall be made on a pro rata basis among the
holders of shares. In addition, should the Closing Price of the Common Stock
on the New York Stock Exchange exceed the Conversion Price (as hereinafter
defined) for 20 consecutive Trading Days, the Corporation may, by notice
mailed at any time within 30 days after the end of any such 20-day period,
require that any of or all the then outstanding shares of this Series be
converted into Common Stock, as more fully provided in subdivision (f) of this
Section 12.
(2) Notice of any redemption or mandatory conversion of shares of
this Series, specifying the time and place of redemption or conversion and
that the dividends on the shares to be redeemed or converted shall cease to
accrue on the redemption or conversion date, shall be mailed by first class
mail, postage prepaid, to each holder of record of the shares to be redeemed,
at such holder's address of record, not less than 30 days prior to the
redemption or conversion date; and if less than all the shares owned by a
stockholder are then to be redeemed or converted, the notice shall also
specify the number of shares thereof which are to be redeemed or converted and
the numbers of the certificates representing such shares. Upon surrender in
accordance with such notice of the certificates for the number of shares to be
redeemed or converted, duly endorsed in blank or accompanied by proper
instruments of assignment or transfer thereof duly endorsed in blank, such
shares shall be redeemed or converted by the Corporation as provided herein.
If less than all the shares represented by any such certificate shall be
redeemed or converted, a new certificate shall be issued representing the
unredeemed or unconverted shares without cost to the holder thereof. From and
after the date fixed in any such notice as the date of redemption or
conversion (unless default shall be made by the Corporation in providing
moneys or Common Stock for the payment of the redemption price or completion
of conversion pursuant to such notice), all dividends on the shares of this
Series subject to such notice shall cease to accrue and all rights of any
holder thereof as a stockholder of the Corporation (except the right to
receive the Redemption Price or Common Stock as hereinafter provided) shall
cease and terminate, and such shares shall not after the redemption or
conversion date be deemed to be outstanding.
<PAGE>
<PAGE> 62
(3) Any shares of this Series which shall at any time have been
redeemed, shall, after such redemption, have the status of authorized but
unissued shares of Preference Stock without designation as to series until
such shares are once more designated as a part of a particular series by the
Board of Directors. The Board of Directors may, at any time, adopt a
resolution providing that no further shares of this Series shall be issued and
directing that the authorized number of shares of this Series be reduced to
the number of shares of this Series then outstanding, in which case (upon
compliance with any applicable requirements of law) any authorized shares of
this Series not theretofore issued shall have the status of authorized but
unissued shares of Preference Stock without designation as to series until
such shares are once more designated as a part of a particular series.
(d) Distributions to Holders of Preference Stock and Common Stock. Out
of any surplus or net profits of the Corporation legally available for
dividends remaining after full cumulative dividends upon the Preferred Stock
of all series then outstanding shall have been paid for all past dividend
periods, and after or concurrently with making payment of, or declaring and
setting apart for payment, full dividends on the Preferred Stock of all series
then outstanding to the end of the then current dividend period and after the
Corporation shall have complied with the provisions in respect of any and all
amounts then or theretofore required to be set aside in respect of any sinking
fund or purchase fund with respect to the Preferred Stock of each series then
outstanding and entitled to the benefit of a sinking fund or purchase fund,
and shall have made provision for compliance in respect of the current sinking
fund or purchase fund period for each such series of Preferred Stock, then and
not otherwise the holders of this Series shall be entitled to or may receive
dividends and redemption payments as provided by subdivisions (b) and (c) of
this Section 12. Out of any surplus or net profits of the Corporation legally
available for dividends remaining after full cumulative dividends upon the
shares of this Series then outstanding shall have been paid through the
preceding dividend date, and after the Corporation shall have complied with
the provisions in respect of any and all amounts then or theretofore required
to be set aside or applied in respect of any redemption payments in respect of
shares of this Series, then and not otherwise, the holders of the Common Stock
shall, subject to the rights of any other series of Preference Stock then
outstanding and to the provisions of this Second Restated Certificate of
Incorporation, be entitled to receive such dividends as may from time to time
be declared by the Board of Directors.
(e) Voting. (1) Holders of shares of this Series shall be entitled
to one vote per share with respect to the election of Directors and all other
matters required to be submitted to holders of Common Stock. Except as
provided in paragraph (2) of this subdivision (e) and except as may be
required by applicable law, holders of shares of this Series shall not be
entitled to vote as a separate class with respect to any matter.
(2) So long as any shares of this Series shall be outstanding, the
Corporation shall not, without the affirmative vote or written consent of the
holders of a majority of the aggregate number of shares of this Series at the
time outstanding (or such greater percentage as may be required under
applicable law), acting as a single class,
(A) alter or change the powers, preferences or rights given to
this Series by this Second Restated Certificate of Incorporation so as to
affect such powers, preferences or rights adversely;
(B) authorize, create or increase the number of authorized shares
of any class of stock ranking, either as to payment of dividends or
distribution of assets, prior to the Preference Stock;
<PAGE>
<PAGE> 63
(C) increase the authorized amount of the Preference Stock or
authorize or create any class of stock ranking, either as to payment of
dividends or distribution of assets, on a parity with the Preference Stock; or
(D) authorize or create any series of Preference Stock ranking,
either as to payment of dividends or distribution of assets, prior to this
Series.
(f) Conversion Rights. The holders of shares of this Series shall
have the right, at their option, at any time, to convert each share of this
Series into one share (adjusted as provided below) of Common Stock, and the
Corporation shall have the right to require such conversion as provided in
subdivision (c) of this Section 12, on and subject to the following terms and
conditions:
(1) The shares of this Series shall be convertible at the office of
any transfer agent for this Series, and at such other office or offices, if
any, as the Board of Directors may designate, upon surrender of such shares as
provided in this subdivision (f), into fully paid and nonassessable shares
(calculated as to each conversion to the nearest 1/100th of a share) of Common
Stock, at the Conversion Price (as hereinafter defined) in effect at the time
of conversion, each share of this Series being valued, for purposes of such
conversion, at $32.00 plus (i) the amount of any unpaid dividends accrued to
the next preceding dividend date or (ii) in the case of a mandatory conversion
by the Corporation pursuant to subdivision (c) of this Section 12, the amount
of unpaid dividends accrued to the date of conversion. The price at which
shares of Common Stock shall be delivered upon conversion initially shall be
$32.00 per share, subject to adjustment as provided in paragraph (4) of this
subdivision (f) (the "Conversion Price").
(2) In order to convert shares of this Series into Common Stock the
holder thereof shall surrender at any office hereinabove mentioned the
certificate or certificates therefor, duly endorsed in blank or accompanied by
proper instruments of assignment and transfer thereof duly endorsed in blank,
together with any payment required by this paragraph (2) and transfer tax
stamps or funds therefor, if required pursuant to paragraph (8) of this
subdivision (f), and shall state in writing the name or names in which the
holder wishes the certificate or certificates for shares of Common Stock to be
issued. In the case of conversion at the option of such holder, such holder
shall give written notice to the Corporation at said office that he elects to
convert such shares. Except as provided in paragraph (1) of this subdivision
(f), no payment or adjustment shall be made upon any conversion on account of
any dividends accrued on the shares of this Series surrendered for conversion
or on account of any dividends on the Common Stock issued upon such
conversion.
Shares of this Series shall be deemed to have been converted immediately
prior to the close of business on the day of the surrender (or the date
specified in the notice referred to in subdivision (c) of this Section 12 in
the case of a mandatory conversion) of such shares for conversion in
accordance with the foregoing provisions, and the person or persons entitled
to receive the Common Stock issuable upon such conversion shall be treated for
all purposes as the record holder or holders of such Common Stock at such
time; provided, however, that any such surrender on any date when the stock
transfer books of the Corporation shall be closed shall constitute the
person or persons in whose name or names the certificates for such shares of
Common Stock are to be issued as the record holder or holders thereof for all
purposes immediately prior to the close of business on the next succeeding day
on which such stock transfer books are opened and such conversion shall be at
the conversion price in effect at such time on such succeeding day. As
<PAGE>
<PAGE> 64
promptly as practicable on or after the conversion date, the Corporation shall
issue and shall deliver at said office a certificate or certificates for the
number of full shares of Common Stock issuable upon such conversion, together
with a cash payment in lieu of any fraction of a share, as hereinafter
provided, to the person or persons entitled to receive the same. In case
shares of this Series are called for redemption, the right to convert such
shares shall cease and terminate at the close of business on the redemption
date, unless default shall be made in payment of the redemption price.
(3) No fractional shares of Common Stock shall be issued upon
conversion of shares of this Series, but, instead of any fraction of a share
of Common Stock which would otherwise be issuable in respect of the aggregate
number of shares of this Series surrendered for conversion at one time by the
same holder, the Corporation shall pay a cash adjustment of such fraction in
an amount equal to the same fraction of the Closing Price of a share of Common
Stock on the date on which such shares of this Series were duly surrendered
for conversion, or, if such date is not a Trading Day, on the next Trading
Day.
(4) The Conversion Price shall be adjusted from time to time as
follows:
(A) In case the Corporation shall (i) pay a dividend or make a
distribution on its outstanding shares of Common Stock in Common Stock, (ii)
subdivide its outstanding shares of Common Stock, (iii) combine its
outstanding shares of Common Stock into a smaller number of shares, or (iv)
issue any shares by reclassification of its shares of Common Stock, the
Conversion Price in effect at the time of the record date for such dividend or
distribution or the effective date of such subdivision, combination or
reclassification shall be adjusted, effective at the opening of business on
the business day next following such record date or effective date, so that
the holder of any shares of this Series surrendered for conversion after such
record date or effective date shall be entitled to receive the number of
shares of capital stock of the Corporation which he would have owned or been
entitled to receive had such shares of this Series been converted immediately
prior to such time. If, as a result of an adjustment made pursuant to this
clause (A), the holder of any share thereafter surrendered for conversion
shall become entitled to receive shares of two or more classes of capital
stock of the Corporation, the Board of Directors (whose determination shall be
conclusive) shall determine the allocation of the adjusted Conversion Price
between or among shares of such classes of capital stock.
(B) In case the Corporation shall hereafter issue rights or
warrants to all holders of its Common Stock entitling them (for a period
expiring within 45 days after the record date mentioned below) to subscribe
for or purchase shares of Common Stock at a price per share less than the
current market price per share (as determined pursuant to clause (D) of
paragraph (4) of this subdivision (f)) on the record date mentioned below, the
Conversion Price shall be adjusted so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately prior to
such record date by a fraction, of which the numerator shall be the number of
shares of Common Stock outstanding on such record date plus the number of
shares of Common Stock which the aggregate offering price of the total number
of shares of Common Stock so offered would purchase at such current market
price and of which the denominator shall be the number of shares of Common
Stock outstanding on such record date plus the number of additional shares of
Common Stock offered for subscription or purchase. Such adjustment shall
become effective at the opening of business on the business day next following
the record date for the determination of stockholders entitled to receive such
rights or warrants; and to the extent that shares of Common Stock are not
<PAGE>
<PAGE> 65
delivered after the expiration of such rights or warrants, the Conversion
Price shall be readjusted (but only with respect to shares of this Series
converted after such expiration) to the Conversion Price which would then be
in effect had the adjustments made upon the distribution of such rights or
warrants been made upon the basis of delivery of only the number of shares of
Common Stock actually delivered. The right to acquire shares of Common Stock
pursuant to the Corporation's Dividend Reinvestment Plan as the same may be
amended from time to time, or pursuant to any successor dividend reinvestment
plan, shall not be deemed to be a right giving rise to any adjustment to the
Conversion Price. For the purposes of this clause (B), the number of shares of
Common Stock at any time outstanding shall not include shares held in the
treasury of the Corporation.
(C) In case the Corporation shall distribute to all holders of
its Common Stock evidences of its indebtedness or assets (including
securities, but excluding any cash dividend or distributions out of surplus or
net profits legally available therefor and dividends referred to in clause (A)
of paragraph (4) of this subdivision (f)) or subscription rights or warrants
(excluding those referred to in clause (B) of paragraph (4) of this
subdivision (f)) then in each such case the Conversion Price shall be adjusted
so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the record date mentioned
below by a fraction of which the numerator shall be the current market price
per share (determined as provided in clause (D) of paragraph (4) of this
subdivision (f)) of the Common Stock on such record date less the then fair
market value (as determined by the Board of Directors of the Corporation,
whose determination shall be conclusive) of the portion of the assets or
evidences of indebtedness so distributed or of such subscription rights or
warrants applicable to one share of Common Stock, and the denominator shall be
such current market price per share of the Common Stock. Such adjustment shall
become effective on the opening of business on the business day next following
the record date for the determination of stockholders entitled to receive such
distribution.
(D) For the purpose of any computation under clause (B) or (C) of
paragraph (4) of this subdivision (f), the current market price per share of
Common Stock on any date shall be deemed to be the average of the daily
Closing Price for the 30 consecutive Trading Days selected by the Corporation
commencing not more than 45 Trading Days before the day in question.
(E) In any case in which this paragraph (4) shall require that an
adjustment as a result of any event become effective at the opening of
business on the business day next following a record date, the Corporation may
elect to defer until after the occurrence of such event (i) issuing to the
holder of any shares of this Series converted after such record date and
before the occurrence of such event the additional shares of Common Stock
issuable upon such conversion over and above the shares of Common Stock
issuable upon such conversion on the basis of the Conversion Price prior to
adjustment and (ii) paying to such holder any amount in cash in lieu of a
fractional share of Common Stock pursuant to paragraph (3) of this subdivision
(f); and, in lieu of the shares the issuance of which is so deferred, the
Corporation shall issue or cause its transfer agents to issue due bills or
other appropriate evidence of the right to receive such shares should such
event occur.
<PAGE>
<PAGE> 66
(F) Any adjustment in the Conversion Price otherwise required by
this paragraph (4) to be made may be postponed, provided that such adjustment
(plus any other adjustments postponed pursuant to this clause (F) and not
theretofore made) would not require an increase or decrease of more than
$0.50 in such price and would not, if made, entitle the holders of all then
outstanding shares of this Series upon conversion to receive additional shares
of Common Stock equal in the aggregate to 3% or more of the then issued and
outstanding shares of Common Stock. All calculations under this subdivision
(f), shall be made to the nearest cent or to the nearest 1/100th of a share,
as the case may be.
(G) The Corporation may (but shall not be obligated to) make such
reductions in the Conversion Price, in addition to those required by clauses
(A), (B) and (C) of paragraph (4) of this subdivision (f), as it considers to
be advisable in order that any event treated for Federal income tax purposes
as a dividend of stock or stock rights shall not be taxable to the recipients.
(5) Whenever the Conversion Price is adjusted as herein provided:
(A) the Corporation shall compute the adjusted Conversion Price
in accordance with this subdivision (f) and shall prepare a certificate signed
by the Treasurer of the Corporation setting forth the adjusted Conversion
Price, and such certificate shall forthwith be filed with the transfer agent
or agents for this Series; and
(B) a notice stating that the Conversion Price has been adjusted
and setting forth the adjusted Conversion Price shall, as soon as practicable,
be mailed to the holders of record of the outstanding shares of this Series.
(6) In case:
(A) the Corporation shall declare a dividend (or any other
distribution) on its Common Stock payable otherwise than in cash out of funds
legally available therefor; or
(B) the Corporation shall authorize the granting to the holders
of its Common Stock of rights to subscribe for or purchase any shares of
capital stock of any class or of any other rights; or
(C) of any reclassification of the capital stock of the
Corporation (other than a subdivision or combination of its outstanding shares
of Common Stock), or of any consolidation or merger to which the Corporation
is a party and for which approval of any stockholders of the Corporation is
required, or of the sale or transfer of all or substantially all the assets of
the Corporation; or
(D) of the voluntary or involuntary dissolution, liquidation or
winding up of the Corporation; then the Corporation shall cause to be mailed
to the transfer agent or agents for this Series and to the holders of record
of the outstanding shares of this Series, at least 20 days (or 10 days in any
case specified in clause (A) or (B) of paragraph (4) of this subdivision (f))
prior to the applicable record date hereinafter specified, a notice stating
(x) the date on which a record is to be taken for the purpose of such dividend
or distribution of rights, 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 or
distribution of rights are to be determined, or (y) the date on which such
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up 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 convert or exchange their shares of Common Stock for securities or other
property deliverable upon such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up.
<PAGE>
<PAGE> 67
(7) The Corporation shall at all times reserve and keep available,
free from preemptive rights, out of its authorized but unissued Common Stock,
for the purpose of effecting the conversion of the shares of this Series, the
full number of shares of Common Stock then deliverable upon the conversion of
all shares of this Series then outstanding, provided, however, that nothing
contained in this paragraph (7) shall be construed to preclude the Corporation
from satisfying its obligations in respect of the conversion of the shares by
delivery of purchased shares of Common Stock which are held in the treasury of
the Corporation.
(8) The Corporation shall pay any and all taxes that may be
payable in respect of the issuance or delivery of shares of Common Stock on
conversion of shares of this Series pursuant hereto. The Corporation shall
not, however, be required to pay any tax which may be payable in respect of
any transfer involved in the issue and delivery of shares of Common Stock in a
name other than that in which the shares of this Series so converted were
regis- tered, and no such issue or delivery shall be made unless and until the
person requesting such issue shall have paid to the Corporation the amount of
any such tax, or shall have established, to the satisfaction of the
Corporation, that such tax shall have been paid.
(9) For the purpose of this subdivision (f) the term "Common Stock"
shall include any stock of any class of the Corporation which has no
preference in respect of dividends or of amounts in the event of any voluntary
or involuntary liquidation, dissolution or winding up of the Corporation, and
which is not subject to redemption by the Corporation. However, except as
otherwise provided in paragraph (11) of this subdivision (f), shares issuable
on conversion of shares of this Series shall include only shares of the class
designated as Common Stock of the Corporation as of the original date of issue
of this Series or shares of any class or classes resulting from any
reclassification or reclassifications thereof and which have no preference in
respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Corporation and
which are not subject to redemption by the Corporation, provided that if at
any time there shall be more than one such resulting class, the shares of each
such class then so issuable shall be substantially in the proportion which the
total number of shares of such class resulting from all such reclassifications
bears to the total number of shares of all such classes resulting from all
such reclassifications.
(10) As used in this Section 12, the term "Closing Price" on any day
shall mean the reported last sales price regular way on such day on the New
York Stock Exchange, or, if not reported for such Exchange, on the Composite
Tape, or, in case no such reported sale takes place on such day, the average
of the reported closing bid and asked prices regular way on the New York Stock
Exchange, or, if the Common Stock is not listed or admitted to trading on such
Exchange, on the principal national securities exchange on which the Common
Stock is listed or admitted to trading, or, if not listed or admitted to
trading on any national securities exchange, the average of the closing bid
and asked prices in the over-the-counter market as furnished by any New York
Stock Exchange member firm selected from time to time by the Corporation for
that purpose, or, if no such quotations are available, the fair market price
as determined by the Corporation (whose determination shall be conclusive);
and the term "Trading Day" shall mean, so long as the Common Stock is listed
or admitted to trading on the New York Stock Exchange (or any successor to
such Exchange), a date on which the New York Stock Exchange (or such
successor) is open for the transaction of business, or, if the Common Stock is
not listed or admitted to trading on such Exchange, a date on which the
principal national securities exchange on which the Common Stock is listed is
open for the transaction of business, or, if the Common Stock is not listed or
admitted to trading on any national securities exchange, a date on which any
New York Stock Exchange member firm is open for the transaction of business.
<PAGE>
<PAGE> 68
(11) If either of the following shall occur, namely: (A) any
consolidation or merger to which the Corporation is a party, other than a
consolidation or a merger in which the Corporation is a continuing corporation
and which does not result in any reclassification of, or change (other than a
change in par value or from par value to no par value or from no par value to
par value, or as a result of a subdivision or combination) in, outstanding
shares of the Common Stock, or (B) any sale or conveyance to another
corporation of the property of the Corporation as an entirety or substantially
as an entirety; then the right of the holders of shares of this Series then
outstanding to convert such shares into shares of Common Stock as herein
provided shall terminate, and such holders shall have the right to convert
such shares into the kind and amount of shares of stock and other securities
and property receivable upon such consolidation, merger, sale or conveyance by
a holder of the number of shares of Common Stock issuable upon conversion of
such shares immediately prior to such consolidation, merger, sale or
conveyance, subject to adjustments which shall be as nearly equivalent as may
be practicable to the adjustments provided for in paragraph (4) of this
subdivision (f). The provisions of this paragraph (11) shall similarly apply
to successive consolidations, mergers, sales or conveyances.
(12) Notwithstanding anything elsewhere contained in this Section
12, any funds which at any time shall have been deposited by the Corporation
or on its behalf with any paying agent for the purpose of paying dividends on
or the redemption price of any of the shares of this Series and which shall
not be required for such purposes because of the conversion of such shares, as
provided in this subdivision (f), shall, upon delivery to the paying agent of
evidence satisfactory to it of such conversion, after such conversion be
repaid to the Corporation by the paying agent.
(13) Any shares of this Series which shall at any time have been
converted into shares of Common Stock shall, after such conversion, have the
status of authorized but unissued shares of Preference Stock, without
designation as to series until such shares are once more designated as part of
a particular series by the Board of Directors.
(g) Liquidation Rights. (1) Upon any liquidation, dissolution or
winding up of the Corporation ("Liquidation"), the holders of shares of this
Series shall be entitled to receive out of the assets of the Corporation
available for distribution to its stockholders, before any payment or
distribution shall be made on the shares of any series of Preference Stock
subordinate to this Series as to assets in the event of any Liquidation
("Junior Series") or on the Common Stock, the amount of $32.00 per share, plus
a sum equal to all dividends (whether or not earned or declared) on such
shares accrued and unpaid thereon through the date of final distribution.
(2) The Preferred Stock of all series shall be preferred over this
Series in the event of any Liquidation, and in that event the holders of the
Preferred Stock of each series shall be entitled to receive, out of the assets
of the Corporation available for distribution to its stockholders, an amount
determined as provided in the applicable Certificate of Designation or
pursuant to Article Fourth of this Second Restated Certificate of
Incorporation, as the case may be, for every share of their holdings of the
Preferred Stock of such series before any distribution of the assets shall be
made to the holders of shares of this Series. The shares of this Series shall
be on a parity with any other series of Preference Stock unless the provi-
sions of such other series provide otherwise, and shall be preferred over the
Common Stock, as to assets in the event of any Liquidation. In the event of
any Liquidation, the holders of the shares of this Series shall be entitled to
receive, out of the assets of the Corporation available for distribution to
its stockholders (after payment in full of all amounts payable in respect of
<PAGE>
<PAGE> 69
the Preferred Stock of all series and any series of Preference Stock ranking
senior to this Series), an amount determined as provided in this Section 12
for every share of this Series before any distribution of the assets shall be
made to the holders of any Junior Series or to the holders of the Common
Stock. If, in the event of any Liquidation, the holders of the Preferred Stock
of all series and the holders of the Preference Stock of this Series (and any
other series of Preference Stock not subordinate to this Series as to assets
in the event of any Liquidation ("Senior Series")) shall have received all the
amounts to which they shall be entitled in accordance with the terms of their
respective shares, the holders of shares of any Junior Series shall be
entitled, to the exclusion of the holders of the Preferred Stock and the
holders of the shares of this Series and any Senior Series, to share ratably
in all the assets of the Corporation available for distribution to such
holders then remaining according to the number of shares of the Junior Series
held by them respectively. If, in the event of any Liquidation, the holders of
the Preferred Stock of all series and the holders of the Preference Stock of
all series shall have received all the amounts to which they shall be entitled
in accordance with the terms of their respective shares, the holders of the
Common Stock shall be entitled, to the exclusion of the holders of the
Preferred Stock and Preference Stock, to share ratably in all the assets of
the Corporation available for distribution to the stockholders then remaining
according to the number of shares of the Common Stock held by them
respectively. If, upon any Liquidation, the amounts payable on or with respect
to the Preference Stock of this Series and any series ranking on a parity with
this Series are not paid in full, the holders of shares of such Preference
Stock shall share ratably in any distribution of assets according to the
respective amounts which would be payable in respect of the shares held by
them upon such distribution if all amounts payable on or with respect to such
Preference Stock were paid in full.
(3) Neither the sale, lease or exchange (for cash, shares of stock,
securities or other consideration) of all or substantially all the property
and assets of the Corporation nor the merger or consolidation of the
Corporation into or with any other corporation or the merger or consolidation
of any other corporation into or with the Corporation shall be deemed to be a
Liquidation for the purposes of this subdivision (g).
(h) Date of Cumulation. The term "date of cumulation" as used in this
Section 12 of Article Fourth with reference to shares of this Series (i) with
respect to any such shares issued subsequent to any record date and prior to
the next succeeding dividend date shall be the March 31 of the year of that
dividend date; and (ii) with respect to any such shares issued subsequent to
any dividend date and prior to the next succeeding record date shall be March
31 of the year of that dividend date.
In the event of the issue of additional shares of this Series, all
dividends paid on this Series prior to the issue of such additional shares,
and all dividends declared and payable to holders of record of this Series on
any date prior to the issue of such additional shares, shall be deemed to have
been paid on such additional shares.
13. Employee Stock Ownership Plan Convertible Preference Stock, Series B
(Par Value $1 Per Share; Stated Value $40 Per Share). The following are the
voting powers, designation, preferences and relative, participating, optional
or other special rights, and the qualifications, limitations or restrictions
thereof, of the series of Preference Stock designated by the Board of
Directors of the Corporation as "Employee Stock Ownership Plan Convertible
Preference Stock, Series B" by resolution dated January 30, 1991, consisting
of 5,000,000 shares:
<PAGE>
<PAGE> 70
(a) Designation and Issuance. The designation of the series of
Preference Stock created by such resolution shall be Employee Stock Ownership
Plan Convertible Preference Stock, Series B (hereinafter in this Section 13 of
Article Fourth called "this Series"). As more fully described in the Employee
Stock Ownership Plan (the "ESOP") established in connection with the
USWA-Bethlehem 1986 and 1989 Labor Agreements (the "Labor Agreements"), there
has been established a trust (the "Trust") for the benefit of Employees (as
defined in the ESOP) participating in the ESOP, and all shares of this Series
shall be issued to and shall be held by the Trust and shall not, without the
prior written consent of the Corporation, be transferable (other than to the
Corporation upon redemption or conversion, as provided herein) by the Trust.
(b) Dividend Rate and Payments. (1) Out of the surplus or net profits
of the Corporation legally available for the payment of dividends, the holders
of shares of this Series shall be entitled to receive, when and as such
dividends may be declared by the Board of Directors, dividends at the rate of
$2.00 per share per year, payable annually on April 1 of each year (each such
day being hereinafter called a dividend date and each annual or shorter (in
the case of the first such period) period ending with a dividend date being
hereinafter called a dividend period), in each case from the date of
cumulation (as defined in subdivision (h) of this Section 13) of such shares
of this Series, before any payment shall be made on account of the purchase or
redemption of the shares of any series of the Preference Stock, or any
dividend shall be declared or paid upon or set apart for, or any other
distribution shall be made in respect of, or any payment shall be made on
account of the purchase of the Common Stock.
(2) Only those shares of this Series outstanding on any record date
established by the Board of Directors shall be entitled to the dividend
payable on the following dividend date, but all such outstanding shares shall
be entitled to the full annual dividend, even if some of or all such shares
were not outstanding during all of the preceding year.
(3) No dividend shall be declared or paid upon or set apart for, and
no other distribution shall be ordered or made in respect of, nor shall any
payment be made on account of the purchase or redemption of, any shares of
this Series at any time that the Corporation, due to any failure to make
payments with respect to any outstanding shares of Preferred Stock, shall be
precluded from paying any dividends on or making other payments with respect
to its Preference Stock. The full amount of dividends which holders of shares
of this Series shall be entitled to receive shall be paid in full before any
dividend, other than a dividend payable in shares of Common Stock, shall be
declared or paid upon or set apart for, or any other distribution shall be
ordered or made in respect of, or any payment shall be made on account of the
purchase of, the Common Stock of the Corporation. No interest, or sum of money
in lieu of interest, shall be payable in respect of any dividend payment or
payments which may be in arrears.
(4) Dividends payable upon the shares of this Series shall be
cumulative (whether or not in any dividend period or periods there shall be
surplus or net profits of the Corporation legally available for the payment of
such dividends), so that, if at any time dividends upon the outstanding shares
of this Series at the per annum rate set forth above from the date of
cumulation through the preceding dividend date shall not have been paid or
declared and a sum sufficient for the payment thereof set apart for such
payment, the amount of the deficiency shall be fully paid, but without
interest, or dividends in such amount declared on the shares of this Series
and a sum sufficient for the payment thereof set apart for such payment,
before any payment shall be made on account of the purchase or redemption of
the shares of any series of the Preference Stock, or any dividend shall be
declared or paid upon or set apart for, or any other distribution shall be
made in respect of, or any payment shall be made in respect of, or any payment
shall be made on account of the purchase of, the Common Stock.<PAGE>
<PAGE> 71
(5) Each such annual dividend shall be payable, at the option of the
Board of Directors of the Corporation, either (i) in shares of this Series,
with such shares being valued for such purpose at their stated value of $40.00
per share, (ii) in shares of Common Stock of the Corporation, with the Common
Stock being valued for such purpose at the average Closing Price (as defined
in subdivision (f) of this Section 13) on the New York Stock Exchange for the
20 Trading Days (as defined in subdivision (f) of this Section 13) ended on
the last business day in March preceding the date of payment or (iii) in cash.
(6) Shares of this Series shall rank on a parity as to dividends
with the Employee Stock Ownership Plan Convertible Preference Stock, Series A
(Par Value $1 Per Share; Stated Value $32 Per Share) of the Corporation, and
with any other series of Preference Stock unless the provisions of such other
series provide otherwise; provided, however, that each such series of
Preference Stock so ranking on a parity may bear dividends payable at rates
and on dates different from any other such series of Preference Stock.
(c) Redemption and Mandatory Conversion. (1) Shares of this Series
shall be redeemable at the option of the Corporation at any time, either in
whole or in part, at a redemption price (the "Redemption Price") of $40.00 per
share; provided, however, that shares of this Series shall be redeemed only
after full cumulative dividends upon all shares of this Series then
outstanding shall have been paid for all past dividend periods, and after or
concurrently with making payment of, or declaring or setting apart for
payment, full dividends on all shares of this Series then outstanding (except
the shares of this Series to be redeemed) to the end of the current dividend
period. In the case of any redemption of less than all the outstanding shares
of this Series, such redemption shall be made on a pro rata basis among the
holders of shares. In addition, should the Closing Price of the Common Stock
on the New York Stock Exchange exceed the Conversion Price (as hereinafter
defined) for 20 consecutive Trading Days, the Corporation may, by notice
mailed at any time within 30 days after the end of any such 20-day period,
require that any of or all the then outstanding shares of this Series be
converted into Common Stock, as more fully provided in subdivision (f) of this
Section 13.
(2) Notice of any redemption or mandatory conversion of shares of
this Series, specifying the time and place of redemption or conversion and
that the dividends on the shares to be redeemed or converted shall cease to
accrue on the redemption or conversion date, shall be mailed by first class
mail, postage prepaid, to each holder of record of the shares to be redeemed,
at such holder's address of record, not less than 30 days prior to the
redemption or conversion date; and if less than all the shares owned by a
stockholder are then to be redeemed or converted, the notice shall also
specify the number of shares thereof which are to be redeemed or converted and
the numbers of the certificates representing such shares. Upon surrender in
accordance with such notice of the certificates for the number of shares to be
redeemed or converted, duly endorsed in blank or accompanied by proper
instruments of assignment or transfer thereof duly endorsed in blank, such
shares shall be redeemed or converted by the Corporation as provided herein.
If less than all the shares represented by any such certificate shall be
redeemed or converted, a new certificate shall be issued representing the
unredeemed or unconverted shares without cost to the holder thereof. From and
after the date fixed in any such notice as the date of redemption or
conversion (unless default shall be made by the Corporation in providing
moneys or Common Stock for the payment of the redemption price or completion
of conversion pursuant to such notice), all dividends on the shares of this
Series subject to such notice shall cease to accrue and all rights of any
holder thereof as a stockholder of the Corporation (except the right to
receive the Redemption Price or Common Stock as hereinafter provided) shall
cease and terminate, and such shares shall not after the redemption or
conversion date be deemed to be outstanding.<PAGE>
<PAGE> 72
(3) Any shares of this Series which shall at any time have been
redeemed, shall, after such redemption, have the status of authorized but
unissued shares of Preference Stock without designation as to series until
such shares are once more designated as a part of a particular series by the
Board of Directors. The Board of Directors may, at any time, adopt a
resolution providing that no further shares of this Series shall be issued and
directing that the authorized number of shares of this Series be reduced to
the number of shares of this Series then outstanding, in which case (upon
compliance with any applicable requirements of law) any authorized shares of
this Series not theretofore issued shall have the status of authorized but
unissued shares of Preference Stock without designation as to series until
such shares are once more designated as a part of a particular series.
(d) Distributions to Holders of Preference Stock and Common Stock.
Out of any surplus or net profits of the Corporation legally available for
dividends remaining after full cumulative dividends upon the Preferred Stock
of all series then outstanding shall have been paid for all past dividend
periods, and after or concurrently with making payment of, or declaring and
setting apart for payment, full dividends on the Preferred Stock of all series
then outstanding to the end of the then current dividend period and after the
Corporation shall have complied with the provisions in respect of any and all
amounts then or theretofore required to be set aside in respect of any sinking
fund or purchase fund with respect to the Preferred Stock of each series then
outstanding and entitled to the benefit of a sinking fund or purchase fund,
and shall have made provision for compliance in respect of the current sinking
fund or purchase fund period for each such series of Preferred Stock, then and
not otherwise the holders of this Series shall be entitled to or may receive
dividends and redemption payments as provided by subdivisions (b) and (c) of
this Section 13. Out of any surplus or net profits of the Corporation legally
available for dividends remaining after full cumulative dividends upon the
shares of this Series then outstanding shall have been paid through the
preceding dividend date, and after the Corporation shall have complied with
the provisions in respect of any and all amounts then or theretofore required
to be set aside or applied in respect of any redemption payments in respect of
shares of this Series, then and not otherwise, the holders of the Common Stock
shall, subject to the rights of any other series of Preference Stock then
outstanding and to the provisions of this Second Restated Certificate of
Incorporation, be entitled to receive such dividends as may from time to time
be declared by the Board of Directors.
(e) Voting. (1) Holders of shares of this Series shall be entitled to
one vote per share with respect to the election of Directors and all other
matters required to be submitted to holders of Common Stock. Except as
provided in paragraph (2) of this subdivision (e) and except as may be
required by applicable law, holders of shares of this Series shall not be
entitled to vote as a separate class with respect to any matter.
(2) So long as any shares of this Series shall be outstanding, the
Corporation shall not, without the affirmative vote or written consent of the
holders of a majority of the aggregate number of shares of this Series at the
time outstanding (or such greater percentage as may be required under
applicable law), acting as a single class,
(A) alter or change the powers, preferences or rights given to
this Series by this Second Restated Certificate of Incorporation so as to
affect such powers, preferences or rights adversely;
(B) authorize, create or increase the number of authorized shares
of any class of stock ranking, either as to payment of dividends or
distribution of assets, prior to the Preference Stock;
<PAGE>
<PAGE> 73
(C) increase the authorized amount of the Preference Stock or
authorize or create any class of stock ranking, either as to payment of
dividends or distribution of assets, on a parity with the Preference Stock; or
(D) authorize or create any series of Preference Stock ranking,
either as to payment of dividends or distribution of assets, prior to this
Series.
(f) Conversion Rights. The holders of shares of this Series shall have
the right, at their option, at any time, to convert each share of this Series
into one share (adjusted as provided below) of Common Stock, and the
Corporation shall have the right to require such conversion as provided in
subdivision (c) of this Section 13, on and subject to the following terms and
conditions:
(1) The shares of this Series shall be convertible at the office of
any transfer agent for this Series, and at such other office or offices, if
any, as the Board of Directors may designate, upon surrender of such shares as
provided in this subdivision (f), into fully paid and nonassessable shares
(calculated as to each conversion to the nearest 1/100th of a share) of Common
Stock, at the Conversion Price (as hereinafter defined) in effect at the time
of conversion, each share of this Series being valued, for purposes of such
conversion, at $40.00 plus (i) the amount of any unpaid dividends accrued to
the next preceding dividend date or (ii) in the case of a mandatory conversion
by the Corporation pursuant to subdivision (c) of this Section 13, the amount
of unpaid dividends accrued to the date of conversion. The price at which
shares of Common Stock shall be delivered upon conversion initially shall be
$40.00 per share, subject to adjustment as provided in paragraph (4) of this
subdivision (f) (the "Conversion Price").
(2) In order to convert shares of this Series into Common Stock the
holder thereof shall surrender at any office hereinabove mentioned the
certificate or certificates therefor, duly endorsed in blank or accompanied by
proper instruments of assignment and transfer thereof duly endorsed in blank,
together with any payment required by this paragraph (2) and transfer tax
stamps or funds therefor, if required pursuant to paragraph (8) of this
subdivision (f), and shall state in writing the name or names in which the
holder wishes the certificate or certificates for shares of Common Stock to be
issued. In the case of conversion at the option of such holder, such holder
shall give written notice to the Corporation at said office that he elects to
convert such shares. Except as provided in paragraph (1) of this subdivision
(f), no payment or adjustment shall be made upon any conversion on account of
any dividends accrued on the shares of this Series surrendered for conversion
or on account of any dividends on the Common Stock issued upon such
conversion.
Shares of this Series shall be deemed to have been converted immediately
prior to the close of business on the day of the surrender (or the date
specified in the notice referred to in subdivision (c) of this Section 13 in
the case of a mandatory conversion) of such shares for conversion in
accordance with the foregoing provisions, and the person or persons entitled
to receive the Common Stock issuable upon such conversion shall be treated for
all purposes as the record holder or holders of such Common Stock at such
time; provided, however, that any such surrender on any date when the stock
transfer books of the Corporation shall be closed shall constitute the person
or persons in whose name or names the certificates for such shares of Common
Stock are to be issued as the record holder or holders thereof for all
purposes immediately prior to the close of business on the next succeeding day
on which such stock transfer books are opened and such conversion shall be at
the conversion price in effect at such time on such succeeding day. As
<PAGE>
<PAGE> 74
promptly as practicable on or after the conversion date, the Corporation shall
issue and shall deliver at said office a certificate or certificates for the
number of full shares of Common Stock issuable upon such conversion, together
with a cash payment in lieu of any fraction of a share, as hereinafter
provided, to the person or persons entitled to receive the same. In case
shares of this Series are called for redemption, the right to convert such
shares shall cease and terminate at the close of business on the redemption
date, unless default shall be made in payment of the redemption price.
(3) No fractional shares of Common Stock shall be issued upon
conversion of shares of this Series, but, instead of any fraction of a share
of Common Stock which would otherwise be issuable in respect of the aggregate
number of shares of this Series surrendered for conversion at one time by the
same holder, the Corporation shall pay a cash adjustment of such fraction in
an amount equal to the same fraction of the Closing Price of a share of Common
Stock on the date on which such shares of this Series were duly surrendered
for conversion, or, if such date is not a Trading Day, on the next Trading
Day.
(4) The Conversion Price shall be adjusted from time to time as
follows:
(A) In case the Corporation shall (i) pay a dividend or make a
distribution on its outstanding shares of Common Stock in Common Stock, (ii)
subdivide its outstanding shares of Common Stock, (iii) combine its
outstanding shares of Common Stock into a smaller number of shares, or (iv)
issue any shares by reclassification of its shares of Common Stock, the
Conversion Price in effect at the time of the record date for such dividend or
distribution or the effective date of such subdivision, combination or
reclassification shall be adjusted, effective at the opening of business on
the business day next following such record date or effective date, so that
the holder of any shares of this Series surrendered for conversion after such
record date or effective date shall be entitled to receive the number of
shares of capital stock of the Corporation which he would have owned or been
entitled to receive had such shares of this Series been converted immediately
prior to such time. If, as a result of an adjustment made pursuant to this
clause (A), the holder of any share thereafter surrendered for conversion
shall become entitled to receive shares of two or more classes of capital
stock of the Corporation, the Board of Directors (whose determination shall be
conclusive) shall determine the allocation of the adjusted Conversion Price
between or among shares of such classes of capital stock.
(B) In case the Corporation shall hereafter issue rights or
warrants to all holders of its Common Stock entitling them (for a period
expiring within 45 days after the record date mentioned below) to subscribe
for or purchase shares of Common Stock at a price per share less than the
current market price per share (as determined pursuant to clause (D) of
paragraph (4) of this subdivision (f)) on the record date mentioned below, the
Conversion Price shall be adjusted so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately prior to
such record date by a fraction, of which the numerator shall be the number of
shares of Common Stock outstanding on such record date plus the number of
shares of Common Stock which the aggregate offering price of the total number
of shares of Common Stock so offered would purchase at such current market
price and of which the denominator shall be the number of shares of Common
Stock outstanding on such record date plus the number of additional shares of
Common Stock offered for subscription or purchase. Such adjustment shall
become effective at the opening of business on the business day next following
the record date for the determination of stockholders entitled to receive such
rights or warrants; and to the extent that shares of Common Stock are not
<PAGE>
<PAGE> 75
delivered after the expiration of such rights or warrants, the Conversion
Price shall be readjusted (but only with respect to shares of this Series
converted after such expiration) to the Conversion Price which would then be
in effect had the adjustments made upon the distribution of such rights or
warrants been made upon the basis of delivery of only the number of shares of
Common Stock actually delivered. The right to acquire shares of Common Stock
pursuant to the Corporation's Dividend Reinvestment Plan as the same may be
amended from time to time, or pursuant to any successor dividend reinvestment
plan, shall not be deemed to be a right giving rise to any adjustment to the
Conversion Price. For the purposes of this clause (B), the number of shares of
Common Stock at any time outstanding shall not include shares held in the
treasury of the Corporation.
(C) In case the Corporation shall distribute to all holders of
its Common Stock evidences of its indebtedness or assets (including
securities, but excluding any cash dividend or distributions out of surplus or
net profits legally available therefor and dividends referred to in clause (A)
of paragraph (4) of this subdivision (f)) or subscription rights or warrants
(excluding those referred to in clause (B) of paragraph (4) of this
subdivision (f)), then in each such case the Conversion Price shall be
adjusted so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the record date mentioned
below by a fraction of which the numerator shall be the current market price
per share (determined as provided in clause (D) of paragraph (4) of this
subdivision (f)) of the Common Stock on such record date less the then fair
market value (as determined by the Board of Directors of the Corporation,
whose determination shall be conclusive) of the portion of the assets or
evidences of indebtedness so distributed or of such subscription rights or
warrants applicable to one share of Common Stock, and the denominator shall be
such current market price per share of the Common Stock. Such adjustment shall
become effective on the opening of business on the business day next following
the record date for the determination of stockholders entitled to receive such
distribution.
(D) For the purpose of any computation under clause (B) or (C) of
paragraph (4) of this subdivision (f), the current market price per share of
Common Stock on any date shall be deemed to be the average of the daily
Closing Price for the 30 consecutive Trading Days selected by the Corporation
commencing not more than 45 Trading Days before the day in question.
(E) In any case in which this paragraph (4) shall require that an
adjustment as a result of any event become effective at the opening of
business on the business day next following a record date, the Corporation may
elect to defer until after the occurrence of such event (i) issuing to the
holder of any shares of this Series converted after such record date and
before the occurrence of such event the additional shares of Common Stock
issuable upon such conversion over and above the shares of Common Stock
issuable upon such conversion on the basis of the Conversion Price prior to
adjustment and (ii) paying to such holder any amount in cash in lieu of a
fractional share of Common Stock pursuant to paragraph (3) of this subdivision
(f); and, in lieu of the shares the issuance of which is so deferred, the
Corporation shall issue or cause its transfer agents to issue due bills or
other appropriate evidence of the right to receive such shares should such
event occur.
<PAGE>
<PAGE> 76
(F) Any adjustment in the Conversion Price otherwise required by
this paragraph (4) to be made may be postponed, provided that such adjustment
(plus any other adjustments postponed pursuant to this clause (F) and not
theretofore made) would not require an increase or decrease of more than $0.50
in such price and would not, if made, entitle the holders of all then
outstanding shares of this Series upon conversion to receive additional shares
of Common Stock equal in the aggregate to 3% or more of the then issued and
outstanding shares of Common Stock. All calculations under this subdivision
(f) shall be made to the nearest cent or to the nearest 1/100th of a share, as
the case may be.
(G) The Corporation may (but shall not be obligated to) make such
reductions in the Conversion Price, in addition to those required by clauses
(A), (B) and (C) of paragraph (4) of this subdivision (f), as it considers to
be advisable in order that any event treated for Federal income tax purposes
as a dividend of stock or stock rights shall not be taxable to the recipients.
(5) Whenever the Conversion Price is adjusted as herein provided:
(A) the Corporation shall compute the adjusted Conversion Price
in accordance with this subdivision (f) and shall prepare a certificate signed
by the Treasurer of the Corporation setting forth the adjusted Conversion
Price, and such certificate shall forthwith be filed with the transfer agent
or agents for this Series; and
(B) a notice stating that the Conversion Price has been adjusted
and setting forth the adjusted Conversion Price shall, as soon as practicable,
be mailed to the holders of record of the outstanding shares of this Series.
(6) In case:
(A) the Corporation shall declare a dividend (or any other
distribution) on its Common Stock payable otherwise than in cash out of funds
legally available therefor; or
(B) the Corporation shall authorize the granting to the holders
of its Common Stock of rights to subscribe for or purchase any shares of
capital stock of any class or of any other rights; or
(C) of any reclassification of the capital stock of the
Corporation (other than a subdivision or combination of its outstanding shares
of Common Stock), or of any consolidation or merger to which the Corporation
is a party and for which approval of any stockholders of the Corporation is
required, or of the sale or transfer of all or substantially all the assets of
the Corporation; or
(D) of the voluntary or involuntary dissolution, liquidation or
winding up of the Corporation; then the Corporation shall cause to be mailed
to the transfer agent or agents for this Series and to the holders of record
of the outstanding shares of this Series, at least 20 days (or 10 days in any
case specified in clause (A) or (B) of paragraph (4) of this subdivision (f))
prior to the applicable record date hereinafter specified, a notice stating
(x) the date on which a record is to be taken for the purpose of such dividend
or distribution of rights, 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 or
distribution of rights are to be determined, or (y) the date on which such
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up 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 convert or exchange their shares of Common Stock for securities or other
property deliverable upon such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up.<PAGE>
<PAGE> 77
(7) The Corporation shall at all times reserve and keep available,
free from preemptive rights, out of its authorized but unissued Common Stock,
for the purpose of effecting the conversion of the shares of this Series, the
full number of shares of Common Stock then deliverable upon the conversion of
all shares of this Series then outstanding, provided, however, that nothing
contained herein shall be construed to preclude the Corporation from
satisfying its obligations in respect of the conversion of the shares by
delivery of purchased shares of Common Stock which are held in the treasury of
the Corporation.
(8) The Corporation shall pay any and all taxes that may be payable
in respect of the issuance or delivery of shares of Common Stock on conversion
of shares of this Series pursuant hereto. The Corporation shall not, however,
be required to pay any tax which may be payable in respect of any transfer
involved in the issue and delivery of shares of Common Stock in a name other
than that in which the shares of this Series so converted were registered, and
no such issue or delivery shall be made unless and until the person requesting
such issue shall have paid to the Corporation the amount of any such tax, or
shall have established, to the satisfaction of the Corporation, that such tax
shall have been paid.
(9) For the purpose of this subdivision (f) the term "Common Stock"
shall include any stock of any class of the Corporation which has no
preference in respect of dividends or of amounts in the event of any voluntary
or involuntary liquidation, dissolution or winding up of the Corporation, and
which is not subject to redemption by the Corporation. However, except as
otherwise provided in paragraph (11) of this subdivision (f), shares issuable
on conversion of shares of this Series shall include only shares of the class
designated as Common Stock of the Corporation as of the original date of issue
of this Series or shares of any class or classes resulting from any
reclassification or reclassifications thereof and which have no preference in
respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Corporation and
which are not subject to redemption by the Corporation, provided that if at
any time there shall be more than one such resulting class, the shares of each
such class then so issuable shall be substantially in the proportion which the
total number of shares of such class resulting from all such reclassifications
bears to the total number of shares of all such classes resulting from all
such reclassifications.
(10) As used in this Section 13 of Article Fourth, the term "Closing
Price" on any day shall mean the reported last sales price regular way on such
day on the New York Stock Exchange, or, if not reported for such Exchange, on
the Composite Tape, or, in case no such reported sale takes place on such day,
the average of the reported closing bid and asked prices regular way on the
New York Stock Exchange, or, if the Common Stock is not listed or admitted to
trading on such Exchange, on the principal national securities exchange on
which the Common Stock is listed or admitted to trading, or, if not listed or
admitted to trading on any national securities exchange, the average of the
closing bid and asked prices in the over-the-counter market as furnished by
any New York Stock Exchange member firm selected from time to time by the
Corporation for that purpose, or, if no such quotations are available, the
fair market price as determined by the Corporation (whose determination shall
be conclusive); and the term "Trading Day" shall mean, so long as the Common
Stock is listed or admitted to trading on the New York Stock Exchange (or any
successor to such Exchange), a date on which the New York Stock Exchange (or
such successor) is open for the transaction of business, or, if the Common
Stock is not listed or admitted to trading on such Exchange, a date on which
the principal national securities exchange on which the Common Stock is listed
<PAGE>
<PAGE> 78
is open for the transaction of business, or, if the Common Stock is not listed
or admitted to trading on any national securities exchange, a date on which
any New York Stock Exchange member firm is open for the transaction of
business.
(11) If either of the following shall occur, namely: (A) any
consolidation or merger to which the Corporation is a party, other than a
consolidation or a merger in which the Corporation is a continuing corporation
and which does not result in any reclassification of, or change (other than a
change in par value or from par value to no par value or from no par value to
par value, or as a result of a subdivision or combination) in, outstanding
shares of the Common Stock, or (B) any sale or conveyance to another
corporation of the property of the Corporation as an entirety or substantially
as an entirety; then the right of the holders of shares of this Series then
outstanding to convert such shares into shares of Common Stock as herein
provided shall terminate, and such holders shall have the right to convert
such shares into the kind and amount of shares of stock and other securities
and property receivable upon such consolidation, merger, sale or conveyance by
a holder of the number of shares of Common Stock issuable upon conversion of
such shares immediately prior to such consolidation, merger, sale or
conveyance, subject to adjustments which shall be as nearly equivalent as may
be practicable to the adjustments provided for in paragraph (4) of this
subdivision (f). The provisions of this paragraph (11) shall similarly apply
to successive consolidations, mergers, sales or conveyances.
(12) Notwithstanding anything elsewhere contained in this Section
13, any funds which at any time shall have been deposited by the Corporation
or on its behalf with any paying agent for the purpose of paying dividends on
or the redemption price of any of the shares of this Series and which shall
not be required for such purposes because of the conversion of such shares, as
provided in this subdivision (f), shall, upon delivery to the paying agent of
evidence satisfactory to it of such conversion, after such conversion be
repaid to the Corporation by the paying agent.
(13) Any shares of this Series which shall at any time have been
converted into shares of Common Stock shall, after such conversion, have the
status of authorized but unissued shares of Preference Stock, without
designation as to series until such shares are once more designated as part of
a particular series by the Board of Directors.
(g) Liquidation Rights. (1) Upon any liquidation, dissolution or
winding up of the Corporation ("Liquidation"), the holders of shares of this
Series shall be entitled to receive out of the assets of the Corporation
available for distribution to its stockholders, before any payment or
distribution shall be made on the shares of any series of Preference Stock
subordinate to this Series as to assets in the event of any Liquidation
("Junior Series") or on the Common Stock, the amount of $40.00 per share, plus
a sum equal to all dividends (whether or not earned or declared) on such
shares accrued and unpaid thereon through the date of final distribution.
(2) The Preferred Stock of all series shall be preferred over this
Series in the event of any Liquidation, and in that event the holders of the
Preferred Stock of each series shall be entitled to receive, out of the assets
of the Corporation available for distribution to its stockholders, an amount
determined as provided in the applicable Certificate of Designation or
pursuant to Article Fourth of this Second Restated Certificate of
Incorporation, as the case may be, for every share of their holdings of the
Preferred Stock of such series before any distribution of the assets shall be
made to the holders of shares of this Series. The shares of this Series shall
be on a parity with the Employee Stock Ownership Plan Convertible Preference
<PAGE>
<PAGE> 79
Stock, Series A (Par Value $1 Per Share; Stated Value $32 Per Share) of the
Corporation and with any other series of Preference Stock unless the
provisions of such other series provide otherwise, and shall be preferred over
the Common Stock, as to assets in the event of any Liquidation. In the event
of any Liquidation, the holders of the shares of this Series shall be entitled
to receive, out of the assets of the Corporation available for distribution to
its stockholders (after payment in full of all amounts payable in respect of
the Preferred Stock of all series and any series of Preference Stock ranking
senior to this Series), an amount determined as provided in this Section 13
for every share of this Series before any distribution of the assets shall be
made to the holders of any Junior Series or to the holders of the Common
Stock. If, in the event of any Liquidation, the holders of the Preferred Stock
of all series and the holders of the Preference Stock of this Series (and any
other series of Preference Stock not subordinate to this Series as to assets
in the event of any Liquidation ("Senior Series")) shall have received all the
amounts to which they shall be entitled in accordance with the terms of their
respective shares, the holders of shares of any Junior Series shall be
entitled, to the exclusion of the holders of the Preferred Stock and the
holders of the shares of this Series and any Senior Series, to share ratably
in all the assets of the Corporation available for distribution to such
holders then remaining according to the number of shares of the Junior Series
held by them respectively. If, in the event of any Liquidation, the holders of
the Preferred Stock of all series and the holders of the Preference Stock of
all series shall have received all the amounts to which they shall be entitled
in accordance with the terms of their respective shares, the holders of the
Common Stock shall be entitled, to the exclusion of the holders of the
Preferred Stock and Preference Stock, to share ratably in all the assets of
the Corporation available for distribution to the stockholders then remaining
according to the number of shares of the Common Stock held by them
respectively. If, upon any Liquidation, the amounts payable on or with respect
to the Preference Stock of this Series and any series ranking on a parity with
this Series are not paid in full, the holders of shares of such Preference
Stock shall share ratably in any distribution of assets according to the
respective amounts which would be payable in respect of the shares held by
them upon such distribution if all amounts payable on or with respect to such
Preference Stock were paid in full.
(3) Neither the sale, lease or exchange (for cash, shares of stock,
securities or other consideration) of all or substantially all the property
and assets of the Corporation nor the merger or consolidation of the
Corporation into or with any other corporation or the merger or consolidation
of any other corporation into or with the Corporation shall be deemed to be a
Liquidation for the purposes of this subdivision (g).
(h) Date of Cumulation. The term "date of cumulation" as used in this
Section 13 with reference to shares of this Series (i) with respect to any
such shares issued subsequent to any record date and prior to the next
succeeding dividend date shall be the March 31 of the year of that dividend
date; and (ii) with respect to any such shares issued subsequent to any
dividend date and prior to the next succeeding record date shall be March 31
of the year of that dividend date.
In the event of the issue of additional shares of this Series, all
dividends paid on this Series prior to the issue of such additional shares,
and all dividends declared and payable to holders of record of this Series on
any date prior to the issue of such additional shares, shall be deemed to have
been paid on such additional shares.
<PAGE>
<PAGE> 80
14. Series A Junior Participating Preference Stock (Par Value $1 Per
Share). The following are the voting powers, designation, preferences and
relative, participating, optional or other special rights, and the
qualifications, limitations or restrictions thereof, of the series of
Preference Stock designated by the Board of Directors of the Corporation as
the "Series A Junior Participating Preference Stock" by resolution dated
September 28, 1988, consisting of 1,500,000 shares:
(a) Designation and Amount. The designation of the series of
Preference Stock created by this resolution shall be "Series A Junior
Participating Preference Stock" and the number of shares constituting such
series shall be 1,500,000.
(b) Dividends and Distributions. (1) Out of the surplus or net profits
of the Corporation legally available for the payment of dividends, the holders
of shares of Series A Junior Participating Preference Stock shall be entitled
to receive, when and as such dividends may be declared by the Board of
Directors, quarterly dividends payable in cash on the tenth days of March,
June, September and December in each year (each such date being referred to
herein as a "Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a share or
fraction of a share of Series A Junior Participating Preference Stock, in an
amount per share (rounded to the nearest cent) equal to the greater of (a)
$.50 or (b) subject to the provision for adjustment hereinafter set forth, 100
times the aggregate per share amount of all cash dividends, and 100 times the
aggregate per share amount (payable in kind) of all non-cash dividends or
other distributions other than a dividend payable in shares of Common Stock or
a subdivision of the outstanding shares of Common Stock (by reclassification
or otherwise), declared on the Common Stock, par value $1.00 per share, of the
Corporation (the "Common Stock") since the immediately preceding Quarterly
Dividend Payment Date, or, with respect to the first Quarterly Dividend
Payment Date, since the first issuance of any share or fraction of a share of
Series A Junior Participating Preference Stock. In the event the Corporation
shall at any time after September 28, 1988 (the "Rights Declaration Date") (i)
declare any dividend on Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock, (iii) combine the outstanding Common
Stock into a smaller number of shares or (iv) issue any shares by
reclassification of its shares of Common Stock, then in each such case the
amount to which holders of shares of Series A Junior Participating Preference
Stock shall have been entitled immediately prior to such event under clause
(b) of the preceding sentence shall be adjusted by multiplying such amount by
a fraction the numerator of which shall be the number of shares of Common
Stock outstanding immediately after such event and the denominator of which
shall be the number of shares of Common Stock that shall have been outstanding
immediately prior to such event.
(2) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Junior Participating Preference Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares of
Series A Junior Participating Preference Stock, unless the date of issue of
such shares shall be prior to the record date for the first Quarterly Dividend
Payment Date, in which case dividends on such shares shall begin to accrue
from the date of issue of such shares, or unless the date of issue shall be a
Quarterly Dividend Payment Date or shall be a date after the record date for
the next Quarterly Dividend Payment Date and before such Quarterly Dividend
Payment Date, in either of which events such dividends shall begin to accrue
and be cumulative from such Quarterly Dividend Payment Date. No interest, or
sum of money in lieu of interest, shall be payable in respect of any dividend
payment or payments which may be in arrears. Dividends paid on shares of
Series A Junior Participating Preference Stock in an amount less than the
total amount of such dividends at the time accrued and payable on such shares
shall be allocated pro rata on a share-by-share basis among all such shares at
the time outstanding.<PAGE>
<PAGE> 81
(3) Dividends payable upon the shares of Series A Junior
Participating Preference Stock shall be cumulative (whether or not in any
dividend period or periods there shall be surplus or net profits of the
Corporation legally available for the payment of such dividends) so that, if
on any Quarterly Dividend Payment Date dividends upon the outstanding shares
of Series A Junior Participating Preference Stock shall not have been paid, or
declared and a sum sufficient for the payment thereof set apart for such
payment, the amount of the deficiency shall be fully paid, but without
interest, or dividends in such amount declared on the shares of Series A
Junior Participating Preference Stock and a sum sufficient for the payment
thereof set apart for such payment, before any dividend shall be declared or
paid upon or set apart for, or any other distribution shall be made in respect
of, or any payment shall be made in respect of, or any payment shall be made
on account of the purchase of, the Common Stock or any series of Preference
Stock subordinate to the Series A Junior Participating Preference Stock.
(c) Distributions to Holders of Series A Junior Participating
Preference Stock and Common Stock. Out of any surplus or net profits of the
Corporation legally available for dividends remaining after full cumulative
dividends upon the Preferred Stock of all series then outstanding and of any
series of Preference Stock ranking senior to Series A Junior Participating
Preference Stock shall have been paid for all past dividend periods, and after
or concurrently with making payment of, or declaring and setting apart for
payment, full dividends on the Preferred Stock of all series then outstanding
and of any series of Preference Stock ranking senior to the Series A Junior
Participating Preference Stock then outstanding to the most recent Quarterly
Dividend Payment Date and after the Corporation shall have complied with the
provisions in respect of any and all amounts then or theretofore required to
be set aside in respect of any sinking fund or purchase fund with respect to
the Preferred Stock and any series of Preference Stock ranking senior to
Series A Junior Participating Preference Stock then outstanding and entitled
to the benefit of a sinking fund or purchase fund, and shall have made
provision for compliance in respect of the current sinking fund or purchase
fund period for each such series of Preferred Stock or any series of
Preference Stock ranking senior to Series A Junior Participating Preference
Stock, then and not otherwise the holders of Series A Junior Participating
Preference Stock shall be entitled to or may receive dividends and redemption
payments as provided herein. Out of any surplus or net profits of the
Corporation legally available for dividends remaining after full cumulative
dividends upon the shares of Series A Junior Participating Preference Stock
then outstanding shall have been paid through the preceding Quarterly Dividend
Payment Date, and after the Corporation shall have complied with the
provisions in respect of any and all amounts then or theretofore required (if
any) to be set aside or applied in respect of any redemption payments in
respect of shares of Series A Junior Participating Preference Stock, then and
not otherwise, the holders of Common Stock and of any series of Preference
Stock ranking subordinate to Series A Junior Participating Preference Stock
shall, subject to the rights of any other series of Preference Stock then
outstanding, to paragraph (1) of subdivision (b) of this Section 14 and to the
provisions of the Second Restated Certificate of Incorporation, be entitled to
receive such dividends as may from time to time be declared by the Board of
Directors.
(d) Voting. (1) Holders of shares of Series A Junior Participating
Preference Stock shall be entitled to one vote for each share of stock held.
Except as provided in this subdivision (d) and except as may be required by
applicable law, holders of shares of Series A Junior Participating Preference
Stock shall vote with the Common Stock on all matters required to be submitted
to holders of Common Stock and shall not be entitled to vote as a separate
class with respect to any matter.
<PAGE>
<PAGE> 82
(2) So long as any shares of Series A Junior Participating
Preference Stock shall be outstanding, the Corporation shall not, without the
affirmative vote or written consent of the holders of a majority of the
aggregate number of shares of Series A Junior Participating Preference Stock
at the time outstanding (or such greater percentage as may be required under
applicable law), acting as a single class, alter or change the powers,
preferences or rights given to the Series A Junior Participating Preference
Stock by this Second Restated Certificate of Incorporation so as to affect
such powers, preferences or rights adversely.
(3) If at the time of any annual meeting of stockholders of the
Corporation for the election of directors a default in preference dividends,
as the term "default in preference dividends" is hereinafter defined with
respect to the Series A Junior Participating Preference Stock, shall exist,
the holders of the Series A Junior Participating Preference Stock, voting
separately as a class with the holders of any other series of Preference Stock
so entitled to vote, shall have the right to elect two members of the Board of
Directors; and the holders of the Common Stock shall not be entitled to vote
in the election of the directors of the Corporation to be elected as provided
in the foregoing clause. Whenever a default in preference dividends shall
commence to exist, the Corporation, upon the written request of the holders of
5% or more of the outstanding shares of Preference Stock so entitled to vote,
shall call a special meeting of the holders of the Preference Stock so
entitled to vote, such special meeting to be held within 120 days after the
date on which such request shall be received by the Corporation for the
purpose of enabling such holders to elect members of the Board of Directors as
provided in the immediately preceding sentence; provided, however, that such
special meeting need not be called if an annual meeting of stockholders of the
Corporation for the election of directors shall be scheduled to be held within
such 120 days; and provided further that in lieu of any such special meeting,
the election of the directors to be elected thereat may be effected by the
written consent of the holders of a majority of the outstanding shares that
would be entitled to be voted upon at such special meeting. Prior to any such
special meeting or meetings, the number of directors of the Corporation shall
be increased to the extent necessary to provide as additional places on the
Board of Directors the directorships to be filled by the directors to be
elected thereat. Any director elected as aforesaid by the holders of shares of
the Preference Stock or of any series thereof shall cease to serve as such
director whenever a default in preference dividends shall cease to exist. If,
prior to the end of the term of any director elected as aforesaid by the
holders of shares of the Preference Stock or of any series thereof, or elected
by the holders of the Common Stock, a vacancy in the office of such director
shall occur by reason of death, resignation, removal or disability, or for any
other cause, such vacancy shall be filled for the unexpired term in the manner
provided in the By-laws; provided, however, that if such vacancy shall be
filled by election by the stockholders at a meeting thereof, the right to fill
such vacancy shall be vested in the holders of that class of stock or series
thereof which elected the director the vacancy in the office of whom is so to
be filled, unless, in any such case, no default in preference dividends shall
exist at the time of such election. For the purposes of this paragraph (3), a
"default in preference dividends" with respect to the Series A Junior
Participating Preference Stock shall be deemed to have occurred whenever the
amount of dividends in arrears upon the Series A Junior Participating
Preference Stock shall be equivalent to six full quarterly dividends or more,
and, having so occurred, such default in preference dividends shall be deemed
to exist thereafter until, but only until, all dividends in arrears on all
shares of the Series A Junior Participating Preference Stock then outstanding
shall have been paid. The term "dividends in arrears" whenever used in this
paragraph (3) with reference to the Series A Junior Participating Preference
Stock shall be deemed to mean (whether or not in any dividend period in
<PAGE>
<PAGE> 83
respect of which such term is used there shall have been surplus or net
profits of the Corporation legally available for the payment of dividends)
that amount which shall be equal to cumulative dividends at the rate for the
Series A Junior Participating Preference Stock for all past quarterly dividend
periods less the amount of all dividends paid, or deemed paid, for all such
periods upon such Series A Junior Participating Preference Stock. Nothing
herein contained shall be deemed to prevent an increase in the number of
directors of the Corporation pursuant to its By-laws as from time to time in
effect so as to provide as additional places on the Board of Directors
directorships to be filled by the directors so to be elected by the holders of
the Series A Junior Participating Preference Stock, or to prevent any other
change in the number of the directors of the Corporation.
(4) Except as set forth herein, holders of Series A Junior
Participating Preference Stock shall have no special voting rights and their
consent shall not be required (except to the extent they are entitled to vote
with holders of Common Stock as set forth herein) for taking any corporate
action.
(e) Reacquired Shares. Any shares of Series A Junior Participating
Preference Stock purchased or otherwise acquired by the Corporation in any
manner whatsoever shall be retired and cancelled promptly after the
acquisition thereof. All such shares shall upon their cancellation become
authorized but unissued shares of Preference Stock and may be reissued as part
of a new series of Preference Stock to be created by resolution or resolutions
of the Board of Directors, subject to the conditions and restrictions on
issuance set forth herein.
(f) Liquidation Rights. (1) Upon any liquidation (voluntary or
otherwise), dissolution or winding up of the Corporation ("Liquidation"), the
holders of shares of Series A Junior Participating Preference Stock shall be
entitled to receive out of the assets of the Corporation available for
distribution to its stockholders, before any payment or distribution shall be
made on the shares of any series of Preference Stock subordinate to Series A
Junior Participating Preference Stock as to assets in the event of any
Liquidation ("Junior Series") or on the Common Stock, the amount of $100.00
per share, plus a sum equal to all dividends (whether or not earned or
declared) on such shares accrued and unpaid thereon through the date of final
distribution (the "Series A Liquidation Preference").
(2) The Preferred Stock of all series shall be preferred over Series
A Junior Participating Preference Stock in the event of any Liquidation, and
in that event the holders of the Preferred Stock of each series shall be
entitled to receive, out of the assets of the Corporation available for
distribution to its stockholders, an amount determined as provided in the
applicable Certificate of Designation or pursuant to Article Fourth of this
Second Restated Certificate of Incorporation, as the case may be, for every
share of their holdings of the Preferred Stock of such series before any
distribution of the assets shall be made to the holders of shares of Series A
Junior Participating Preference Stock. The shares of Series A Junior
Participating Preference Stock shall be subordinate to any other series of
Preference Stock unless the provisions of such other series provide otherwise,
and shall be preferred over the Common Stock, as to assets in the event of any
Liquidation. In the event of any Liquidation, the holders of the shares of
Series A Junior Participating Preference Stock shall be entitled to receive,
out of the assets of the Corporation available for distribution to its
stockholders (after payment in full of all amounts payable in respect of the
Preferred Stock of all series and any series of Preference Stock ranking
senior to Series A Junior Participating Preference Stock), an amount
determined as provided in paragraph (1) of this subdivision (f) for every
<PAGE>
<PAGE> 84
share of Series A Junior Participating Preference Stock before any
distribution of assets shall be made to the holders of any Junior Series or to
the holders of the Common Stock. If, in the event of any Liquidation, the
holders of the Preferred Stock of all series and the holders of the Preference
Stock of all series shall have received all the amounts to which they shall be
entitled in accordance with the terms of their respective shares, no
additional distributions shall be made to the holders of shares of Preferred
Stock or Preference Stock unless, prior thereto, the holders of shares of
Common Stock shall have received an amount per share (the "Common Adjustment")
equal to the quotient obtained by dividing (i) the Series A Liquidation
Preference by (ii) 100 (as appropriately adjusted as set forth in paragraph
(3) of this subdivision (f) to reflect such events as stock splits, stock
dividends and recapitalizations with respect to the Common Stock) (such number
in clause (ii), the "Adjustment Number"). Following the payment of the full
amount of the Common Adjustment in respect of all outstanding shares of Common
Stock, holders of Series A Junior Participating Preference Stock and holders
of shares of Common Stock shall receive their ratable and proportionate share
of the remaining assets to be distributed in the ratio of the Adjustment
Number to 1 with respect to such Preference Stock and Common Stock, on a per
share basis, respectively. If, upon any Liquidation, the amounts payable on or
with respect to Series A Junior Participating Preference Stock and any series
of Preference Stock ranking on a parity with Series A Junior Participating
Preference Stock are not paid in full, the holders of shares of such
Preference Stock shall share ratably in any distribution of assets according
to the respective amounts which would be payable in respect of the shares held
by them upon such distribution if all amounts payable on or with respect to
such Preference Stock were paid in full.
(3) In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, (iii) combine the
outstanding Common Stock into a smaller number of shares or (iv) issue any
shares by reclassification of its shares of Common Stock, then in each such
case the Adjustment Number in effect immediately prior to such event shall be
adjusted by multiplying such Adjustment Number by a fraction the numerator of
which shall be the number of shares of Common Stock outstanding immediately
after such event and the denominator of which shall be the number of shares of
Common Stock that were outstanding immediately prior to such event.
(4) Neither the sale, lease or exchange (for cash, shares of stock,
securities or other consideration) of all or substantially all the property
and assets of the Corporation nor the merger or consolidation of the
Corporation into or with any other corporation or the merger or consolidation
of any other corporation into or with the Corporation shall be deemed to be a
Liquidation for the purposes of this subdivision (f).
(g) Consolidation, Merger, etc. In case the Corporation shall enter
into any consolidation, merger, combination or other transaction in which the
shares of Common Stock shall be exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case the shares
of Series A Junior Participating Preference Stock shall at the same time be
similarly exchanged or changed in an amount per share (subject to the
provision for adjustment hereinafter set forth) equal to 100 times the
aggregate amount of stock, securities, cash and/or any other property (payable
in kind), as the case may be, into which or for which each share of Common
Stock is changed or exchanged. In the event the Corporation shall at any time
after the Rights Declaration Date (i) declare any dividend on Common Stock
payable in shares of Common Stock, (ii) subdivide the outstanding Common
Stock, (iii) combine the outstanding Common Stock into a smaller number of
shares or (iv) issue any shares by reclassification of its shares of Common
<PAGE>
<PAGE> 85
Stock, then in each such case the amount set forth in the preceding sentence
with respect to the exchange or change of shares of Series A Junior
Participating Preference Stock shall be adjusted by multiplying such amount by
a fraction the numerator of which shall be the number of shares of Common
Stock outstanding immediately after such event and the denominator of which
shall be the number of shares of Common Stock that were outstanding
immediately prior to such event.
(h) Optional Redemption. (1) The Corporation shall have the option to
redeem the whole or any part of the Series A Junior Participating Preference
Stock at any time at a redemption price equal to, subject to the provision for
adjustment hereinafter set forth, 100 times the "current per share market
price" of the Common Stock on the date of the mailing of the notice of
redemption, together with unpaid accumulated dividends to the date of such
redemption. In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, (iii) combine the
outstanding Common Stock into a smaller number of shares or (iv) issue any
shares by reclassification of its shares of Common Stock, then in each such
case the amount to which holders of shares of Series A Junior Participating
Preference Stock shall be otherwise entitled immediately prior to such event
under the immediately preceding sentence shall be adjusted by multiplying such
amount by a fraction the numerator of which shall be the number of shares of
Common Stock outstanding immediately after such event and the denominator of
which shall be the number of shares of Common Stock that shall have been
outstanding immediately prior to such event. The "current per share market
price" on any date shall be deemed to be the average of the closing prices per
share of such Common Stock for the 10 consecutive Trading Days (as such term
is hereinafter defined) immediately prior to such date. The closing price for
each day shall be the last sale price, regular way, or, in case no such sale
shall take place on such day, the average of the closing bid and asked prices,
regular way, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or admitted to
trading on the New York Stock Exchange or, if the Common Stock shall not be
listed or admitted to trading on the New York Stock Exchange, as reported in
the principal consolidated transaction reporting system with respect to
securities listed or admitted to trading on the principal national securities
exchange on which the Common Stock shall not be listed or admitted to trading
or, if the Common Stock shall not be listed or admitted to trading on any
national securities exchange, the last quoted price or, if not so quoted the
average of the high bid and low asked prices in the over-the-counter market,
as reported by the National Association of Securities Dealers, Inc. Automated
Quotation System ("NASDAQ") or such other system then in use or, if on any
such date the Common Stock shall not be quoted by any such organization, the
average of the closing bid and asked prices as furnished by a professional
market maker making a market in the Common Stock selected by the Board of
Directors of the Corporation. If on such date no such market maker shall be
making a market in the Common Stock, the fair value of the Common Stock on
such date as determined in good faith by the Board of Directors of the
Corporation shall be used. The term "Trading Day" shall mean a day on which
the principal national securities exchange on which the Common Stock shall be
listed or admitted to trading shall be open for the transaction of business
or, if the Common Stock shall not be listed or admitted to trading on any
national securities exchange, a Monday, Tuesday, Wednesday, Thursday or Friday
on which banking institutions in the State of New York shall not be authorized
or obligated by law or executive order to close.
<PAGE>
<PAGE> 86
(2) Notice of any such redemption shall be given by mailing to the
holders of the Series A Junior Participating Preference Stock a notice of such
redemption, first class postage prepaid, not later than the thirtieth day and
not earlier than the sixtieth day before the date fixed for redemption, at
their last address as the same shall appear upon the books of the Corporation.
Any notice which shall be mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the stockholder
shall have received such notice, and failure duly to give such notice by mail,
or any defect in such notice, to any holder of Series A Junior Participating
Preference Stock shall not affect the validity of the proceedings for the
redemption of such Series A Junior Participation Preference Stock.
(3) If less than all the outstanding shares of the Series A Junior
Participating Preference Stock are to be redeemed by the Corporation, the
number of shares to be redeemed shall be determined by the Board of Directors
and the shares to be redeemed shall be determined by lot or pro rata or in
such fair and equitable other manner as may be prescribed by resolution of the
Board of Directors.
(4) The notice of redemption to each holder of Series A Junior
Participating Preference Stock shall specify (i) the number of shares of
Series A Junior Participating Preference Stock of such holder to be redeemed,
(ii) the date fixed for redemption, (iii) the redemption price and (iv) the
place of payment of the redemption price.
(5) If any such notice of redemption shall have been duly given or
if the Corporation shall have given to the bank or trust company hereinafter
referred to irrevocable written authorization promptly to give or complete
such notice, and if on or before the redemption date specified therein the
funds necessary for such redemption shall have been deposited by the
Corporation with the bank or trust company designated in such notice, doing
business in the United States of America and having a capital, surplus and
undivided profits aggregating at least $25,000,000 according to its last
published statement of condition, in trust for the benefit of the holders of
Series A Junior Participating Preference Stock called for redemption, then,
notwithstanding that any certificate for such shares so called for redemption
shall not have been surrendered for cancellation, from and after the time of
such deposit all such shares called for redemption shall no longer be deemed
outstanding, all rights with respect to such shares shall no longer be deemed
outstanding and all rights with respect to such shares shall forthwith cease
and terminate, except the right of the holders thereof to receive from such
bank or trust company at any time after the time of such deposit the funds so
deposited, without interest, and the right to exercise, up to the close of
business on the fifth day before the date fixed for redemption, all privileges
of conversion or exchange if any. In case less than all the shares represented
by any surrendered certificate shall be redeemed, a new certificate shall be
issued representing the unredeemed shares. Any interest accrued on such funds
so deposited shall be paid to the Corporation from time to time. Any funds so
deposited and unclaimed at the end of six years from such redemption date
shall be repaid to the Corporation, after which the holders of shares of
Series A Junior Participating Preference Stock called for redemption shall
look only to the Corporation for payment thereof; provided, however, that any
funds so deposited which shall not be required for redemption because of the
exercise of any privilege of conversion or exchange subsequent to the date of
deposit shall be repaid to the Corporation forthwith.
(i) Ranking. The Series A Junior Participating Preference Stock shall
rank junior to all other series of the Corporation's Preference Stock as to
the payment of dividends and the distribution of assets, unless the terms of
any such series shall provide otherwise.
<PAGE>
<PAGE> 87
(j) Fractional Shares. Series A Junior Participating Preference Stock
may be issued in fractions of a share which shall entitle the holder, in
proportion to such holder's fractional shares, to exercise voting rights,
receive dividends, participate in distributions and to have the benefit of all
other rights of holders of Series A Junior Participating Preference Stock.
FIFTH. The number of directors of the Corporation shall be fixed from
time to time by, or in the manner provided in, its By-laws and may be
increased or decreased as therein provided and shall be increased for the
period or periods established by Section 6 of Article Fourth of this Second
Restated Certificate of Incorporation as therein provided; but the number
thereof shall not be less than three.
SIXTH. The Board of Directors is expressly authorized to adopt, amend and
repeal by-laws of the Corporation.
SEVENTH. In order to provide an incentive to increased efficient and
profitable management there is hereby established a Special Incentive
Compensation Plan.
The persons who shall be eligible to receive special compensation under
said Plan shall be the persons who shall be in the employ of the Corporation
or of one or more of its subsidiary companies and shall be directors of the
Corporation (said persons being hereinafter in this Article Seventh
collectively referred to as Executives of the Corporation) and the other
Employees, if any, to whom a part of such special compensation shall be
credited pursuant to the provisions of the next succeeding paragraph. The
special compensation under said Plan shall consist of "dividend units", as
follows:
For each fiscal year commencing with the year ending December 31, 1975,
and terminating with the year ending December 31, 1980, there shall be
credited to the Executives of the Corporation (or, if some of such "dividend
units" are to be credited to other Employees pursuant to the provisions of
this paragraph, to the Executives of the Corporation and such other
Employees), promptly after the publication by the Corporation of its Annual
Report to Stockholders for such year, "dividend units" hereinafter described
representing 1-1/2% of the consolidated net income for such year. The Board of
Directors may determine that a specified part of the "dividend units" to be
credited for any fiscal year shall be credited to persons who shall have been
important Employees in that year other than Executives of the Corporation. If
the Board shall so determine, it shall also determine the other important
Employees to whom such "dividend units" are to be credited and the number of
such "dividend units" to be credited to each of them (or to the estates of any
of them who shall have died in the meantime). The Executives of the
Corporation and such other Employees, if any, are hereinafter in this Article
Seventh collectively referred to as the Key Employees. The "dividend units" to
be credited to the Executives of the Corporation for any fiscal year shall be
credited to the persons who shall have been the Executives of the Corporation
in that year (or to the estates of any of them who shall have died in the
meantime) and shall be divided among such Executives (or their estates) as
shall be determined by the Board of Directors.
For the purpose of determining the number of "dividend units" to be
credited to the Key Employees for any fiscal year each unit shall be taken at
a value equal to the average of the high and low prices of a share of Common
Stock of the Corporation on the New York Stock Exchange on the first business
day of such fiscal year. Fractional units shall not be credited.
<PAGE>
<PAGE> 88
Each "dividend unit" will entitle the holder to receive from the
Corporation a cash payment equal to each cash dividend that shall be paid on
one share of Common Stock of the Corporation after the crediting of the unit
and during the lifetime of the Key Employee (but in any event until the
fifteenth anniversary of the termination, by death or otherwise, of his
service with the Corporation and its subsidiary companies). The payments to be
so made on the "dividend units" will be subject to the earlier termination of
such units as hereinafter described. In the event of any stock dividend,
split-up reclassification, or analogous change in capitalization, a
corresponding change shall be made in the number of "dividend units" then
outstanding.
During the lifetime of the Key Employee to whom "dividend units" shall be
credited, such "dividend units" shall not be transferable or assignable, and
said payments thereon shall be made only to him, but if he dies before the
expiration of the aforesaid 15-year period, the rights under his "dividend
units" shall pass to his estate. If authorized by the Board of Directors, the
Corporation may enter into an agreement with an estate to which "dividend
units" shall have so passed providing for a lump-sum payment to the estate in
cancellation of such "dividend units".
All rights under "dividend units" credited to a Key Employee shall be
terminated if the service of such Key Employee shall be terminated for any
reason other than death or normal or permanent incapacity retirement pursuant
to the Pension Plan of the Corporation or voluntary termination of service
with the consent of his employer, or if at any time the Board of Directors
shall find that he has willfully engaged in any activity which is harmful to
the interests of the Corporation.
For the purposes of this Article Seventh
(a) the term "consolidated net income" for any fiscal year shall mean the
consolidated net income of the Corporation and its subsidiary companies
consolidated as shown in its Annual Report to Stockholders for such year,
(b) the term "Employees" shall mean individuals in the employ of the
Corporation or of one or more of its subsidiary companies but shall not be
deemed to include any person who shall have reached age 70 at the time of
making the credit, and
(c) the term "Compensation Committee" shall mean a committee which shall
be appointed by the Board of Directors and shall consist of not less than
three members of the Board.
The amounts of the respective fixed salaries of the Executives of the
Corporation shall be determined by the Board of Directors.
The Board of Directors may delegate to one or more Compensation
Committees any of or all its powers under the provisions of this Article
Seventh, except its power to authorize the entering into an agreement with an
estate pursuant to the last sentence of the sixth paragraph hereof. Anything
in this Article Seventh to the contrary notwithstanding, none of the
Executives shall as a member of the Board of Directors or as a member of a
Compensation Committee have any vote in the determination of (a) the amount
that shall be paid to him as a fixed salary or (b) the number of "dividend
units" that shall be credited to him.
<PAGE>
<PAGE> 89
Anything herein contained to the contrary notwithstanding, the aggregate
amounts paid subsequent to July 1, 1959, on all "dividend units" that shall
have been credited to Executives of the Corporation as such, plus the
aggregate fixed salaries paid to the Executives of the Corporation in excess
of an amount equal to $90,000 per month for the period elapsed subsequent to
such date, shall not at any time exceed 4% of the aggregate cash dividends
paid on the Common Stock of the Corporation subsequent to such date.
The Board of Directors, acting for the Corporation as the owner, direct
or indirect, of capital stock in any other corporation, shall have power in
its discretion to approve any plan for the payment of incentive compensation
to the officers and employees of said other corporation which shall be based
on the net earnings of said other corporation or in any other manner which
will make the amount of said incentive compensation dependent upon the results
accomplished by them or any of them, and the Board of Directors shall also
have power to adopt similar plans for the payment of incentive compensation to
officers and employees of the Corporation engaged in the conduct and operation
of businesses relating to physical properties directly owned or operated by
it.
When all payments under this Article Seventh shall have been made, this
Article Seventh shall terminate and shall be of no further force or effect.
EIGHTH. The Corporation may indemnify and hold harmless and advance
expenses to, to the fullest extent permitted by applicable law as it presently
exists or may hereafter be amended, any person who was or is made or is
threatened to be made a party or is otherwise involved in any threatened,
pending or completed action, suit, or proceeding, whether civil, criminal,
administrative or investigative by reason of the fact that he, or a person for
whom he is the legal representative, is or was a director, officer, employee
or agent of the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation
or of a partnership, joint venture, trust, enterprise or non-profit entity,
including service with respect to employee benefit plans, against all
expenses, judgments, fines, liability, amounts paid in settlement and loss
reasonably incurred or suffered by such person. The rights conferred by this
Article shall not be exclusive of any other rights under any statute,
provision of this Second Restated Certificate of Incorporation, by-law,
agreement, vote of stockholders or disinterested directors or otherwise.
NINTH. No director of the Corporation shall be personally liable to the
Corporation or any stockholder for monetary damages for breach of fiduciary
duty as a director, except for any matter in respect of which such director
shall be liable under Section 174 of Title 8 of the Delaware Code (relating to
the Delaware General Corporation Law) or any amendment thereto or successor
provision thereto or shall be liable by reason that, in addition to any and
all other requirements for such liability, such director (i) shall have
breached the duty of loyalty to the Corporation or its stockholders, (ii)
shall not have acted in good faith or, in failing to act, shall not have acted
in good faith, (iii) shall have acted in a manner involving intentional
misconduct or a knowing violation of law or, in failing to act, shall have
acted in a manner involving intentional misconduct or a knowing violation of
law or (iv) shall have derived an improper personal benefit. Neither the
amendment nor repeal of this Article Ninth, nor the adoption of any provision
of this Second Restated Certificate of Incorporation inconsistent with this
Article Ninth, shall eliminate or reduce the effect of this Article Ninth in
respect of any matter occurring, or any cause of action, suit or claim that,
but for this Article Ninth would accrue or arise, prior to such amendment,
repeal or adoption of any inconsistent provision.
<PAGE>
<PAGE> 90
TENTH. The Corporation reserves the right at any time and from time to
time to amend, alter, change or repeal any provision contained in this Second
Restated Certificate of Incorporation in the manner now or hereafter
prescribed by law; and all rights, preferences and privileges of whatsoever
nature conferred upon stockholders, directors or any other persons whomsoever
by and pursuant to this Second Restated Certificate of Incorporation in its
present form or as hereafter amended are granted subject to the right reserved
in this Article Tenth.
IN WITNESS WHEREOF, Bethlehem Steel Corporation has caused this Second
Restated Certificate of Incorporation to be executed by Curtis H. Barnette,
its Chairman, and attested by G. Penn Holsenbeck, its Secretary, this 4th day
of April, 1994.
BETHLEHEM STEEL CORPORATION,
by /s/ Curtis H. Barnette
______________________
Curtis H. Barnette
Chairman
Attest:
/s/ G. Penn Holsenbeck
______________________
G. Penn Holsenbeck
Secretary
<PAGE>
<PAGE> 91
EXHIBIT (11)
Bethlehem Steel Corporation
Statement Regarding Computation of Earnings Per Share
(dollars in millions and shares in thousands, except per share data)
Three Months Ended
March 31
-----------------
Primary Earnings Per Share 1994 1993
-------------------------- ---- ----
Net Income (Loss) $12.9 ($40.8)
Less Dividend Requirements:
$2.50 Preferred Dividend (2.5) (2.5)
$5.00 Preferred Dividend (3.1) (3.1)
$3.50 Preferred Dividend (4.5) (1.3)
5% Preference Dividend (0.7) (0.6)
----- -------
Net Income (Loss) Applicable to Common Stock $2.1 ($48.3)
===== =======
Average Shares of Common Stock and
Equivalents Outstanding:
Common Stock 94,760 90,580
Stock Options 346 *
------ ------
Total 95,106 90,580
====== ======
Primary Earnings Per Share $0.02 ($0.53)
====== =======
Fully Diluted Earnings Per Share
Net Income (Loss) $12.9 ($40.8)
Less Dividend Requirements:
$2.50 Preferred Dividend (2.5) (2.5)
$5.00 Preferred Dividend (3.1) (3.1)
$3.50 Preferred Dividend (4.5) (1.3)
5% Preference Dividend (0.7) (0.6)
------ -------
Net Income (Loss) Applicable to Common Stock $2.1 ($48.3)
====== =======
Average Shares of Common Stock and Equivalents
and Other Potentially Dilutive Securities
Outstanding:
Common Stock 94,760 90,580
Stock Options 346 *
$2.50 Preferred Stock * *
$5.00 Preferred Stock * *
$3.50 Preferred Stock * *
5% Preference Stock * *
------ -------
Total 95,106 90,580
====== =======
Fully Diluted Earnings Per Share $0.02 ($0.53)
====== =======
* Antidilutive
