SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A/A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Merry Land & Investment Company, Inc.
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(Exact name of registrant as specified in its charter)
Georgia 58-0961876
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(State or other jurisdiction of incorporation) (I.R.S. Employer
Identification no.)
624 Ellis Street, Augusta, Georgia 30901
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(Address of principal executive offices) (Zip Code)
If this Form relates to the If this Form relates to the
registration of a class of debt registration of a class of debt
securities and is effective upon securities and is to become
filing pursuant to General effective simultaneously with the
Instruction A(c)(1) please check effectiveness of a concurrent
the following box. [ ] registration statement under the
Securities Act of 1933 pursuant to
General Instruction A(c)(2) please
check the following box. [ ]
Securities to be registered pursuant to Section 12(b) of the Act:
TITLE OF EACH CLASS NAME OF EACH EXCHANGE ON WHICH
TO BE SO REGISTERED EACH CLASS IS TO BE REGISTERED
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$2.15 Series C
Cumulative Convertible Preferred Stock New York Stock Exchange
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SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
n/a
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(Title of Class)
Filed: March 10, 1995
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ITEM 1. DESCRIPTION OF SECURITIES TO BE REGISTERED
A full description of the Registrant's $2.15 Series C Cumulative
Convertible Preferred Stock, without par value, $25.00 liquidation
preference, is contained in a Rule 424(b) Prospectus Supplement filed on
March 8, 1995 supplementing the Registrant's Shelf Registration Statement
No. 33-57453 filed on Form S-3 which become effective on February 10, 1995.
ITEM 2. EXHIBITS.
A. EXHIBIT 3(i): Form of Articles of Amendment for the $2.15
Series C Cumulative Convertible Preferred Stock, without par value, $25.00
liquidation preference.
B. EXHIBIT 99: Form of Certificate for the $2.15 Series C
Cumulative Convertible Preferred Stock, without par value, $25.00
liquidation preference.
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Signature Blocks on Following Page
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<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this registration statement to
be signed on its behalf by the undersigned, thereto duly authorized.
Merry Land & Investment
Company, Inc.
(Registrant)
Date: March 10, 1995 By: /s/
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W. Tennent Houston
As Its President
<PAGE>
ARTICLES OF AMENDMENT TO
ARTICLES OF INCORPORATION OF
MERRY LAND & INVESTMENT COMPANY, INC.
RE: SERIES C CUMULATIVE CONVERTIBLE PREFERRED STOCK
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1. The name of the corporation is Merry Land & Investment Company, Inc.
2. This Amendment was adopted by the Board of Directors. Pursuant to the
provisions of Section 14-2-602 Official Code of Georgia Annotated, no
shareholder action was required.
3. This Amendment was adopted on March 7, 1995.
4. The text of this Amendment is as follows:
FIRST: Pursuant to authority expressly vested in the Board of Directors
of the Corporation by Article Five of the Articles of Incorporation, as
amended (the "Articles"), the Board of Directors on June 22, 1993, duly
divided and classified 4,600,000 shares of the Preferred Stock of the
Corporation, without par value, into a class designated Series A Cumulative
Convertible Preferred Stock (the "Series A Preferred Stock"), and provided
for the issuance of such Series A Preferred Stock.
SECOND: On October 31, 1994, the Board of Directors duly divided and
classified 4,000,000 shares of Preferred Stock of the Corporation, without
par value, into a class of Series B Cumulative Convertible Preferred Stock
("the Series B Preferred Stock), and provided for the issuance of such Series
B Stock.
THIRD: The Board of Directors has now duly divided and classified
4,600,000 shares of the Preferred Stock of the Corporation, without par
value, into a class of Series C Cumulative Convertible Preferred Stock and
provided for the issuance of such Series C Preferred Stock.
FOURTH: The terms of the Series C Cumulative Convertible Preferred
Stock established by the Board of Directors, in addition to those set forth
in Article FIVE of the Articles of the Corporation are as follows:
Section 1. NUMBER OF SHARES AND DESIGNATION. This series of
Preferred Stock shall be designated as Series C Cumulative Convertible
Preferred Stock (the "Series C Preferred Stock") and 4,600,000 shall be the
number of shares of Preferred Stock constituting such series.
Section 2. DEFINITIONS. For purposes of the Series C Preferred
Stock, the following terms shall have the meanings indicated:
"Act" shall have the meaning set forth in paragraph (g)
of Section 5 hereof.
"Board of Directors" shall mean the Board of Directors of
the Corporation or any committee authorized by such Board
of Directors to perform any of its responsibilities with
respect to the Series C Preferred Stock.
"Business Day" shall mean any day other than a Saturday,
Sunday or a day on which state or federally chartered
banking institutions in Augusta, Georgia or New York, New
York are not required to be open.
"Call Date" shall have the meaning set forth in paragraph
(c) of Section 5 hereof.
"Common Stock" shall mean the common stock of the
Corporation, without par value.
"Constituent Person" shall have the meaning set forth in
paragraph (e) of Section 7 hereof.
"Conversion Price" shall mean the conversion price per
share of Common Stock for which the Series C Preferred
Stock is convertible, as such Conversion Price may be
adjusted pursuant to Section 7. The initial conversion
price shall be $22.00 (equivalent to a conversion rate of
1.136 shares of Common Stock for each share of Series C
Preferred Stock).
"Current Market Price" of publicly traded shares of
common stock or any other class of capital stock or other
security of the Corporation or any other issuer for any
day shall mean the last reported sales price, regular way
on such day, or, if no sale takes place on such day, the
average of the reported closing bid and asked prices on
such day, regular way, in either case as reported on the
New York Stock Exchange ("NYSE") or, if such security is
not listed or admitted for trading on the NYSE, on the
principal national securities exchange on which such
security is listed or admitted for trading or, if not
listed or admitted for trading on any national securities
exchange, on the National Market System of the National
Association of Securities Dealers, Inc. Automated
Quotations System ("NASDAQ") or, if such security is not
quoted on such National Market System, the average of the
closing bid and asked prices on such day in the
over-the-counter market as reported by NASDAQ or, if bid
and asked prices for such security on such day shall not
have been reported through NASDAQ, the average of the bid
and asked prices on such day as furnished by any NYSE
member firm regularly making a market in such security
selected for such purpose by the Chief Executive Officer
or the Board of Directors.
"Dividend Payment Date" shall mean the last calendar day
of March, June, September and December, in each year,
commencing on June 30, 1995; PROVIDED, HOWEVER, that if
any Dividend Payment Date falls on any day other than a
Business Day, the dividend payment due on such Dividend
Payment Date shall be paid on the Business Day
immediately following such Dividend Payment Date.
"Dividend Periods" shall mean quarterly dividend periods
commencing on January 1, April 1, July 1 and October 1 of
each year and ending on and including the day preceding
the first day of the next succeeding Dividend Period
(other than the initial Dividend Period, which shall
commence on the Issue Date and end on and include June
30, 1995).
"Fair Market Value" shall mean the average of the daily
Current Market Prices of a share of Common Stock during
the five (5) consecutive Trading Days selected by the
Corporation commencing not more than 20 Trading Days
before, and ending not later than, the earlier of the day
in question and the day before the "ex" date with respect
to the issuance or distribution requiring such
computation. The term "'ex' date," when used with respect
to any issuance or distribution, means the first day on
which the Common Stock trades regular way, without the
right to receive such issuance or distribution, on the
exchange or in the market, as the case may be, used to
determine that day's Current Market Price.
"Issue Date" shall mean March 15, 1995.
"Junior Stock" shall mean the Common Stock and any other
class or series of shares of the Corporation over which
the Series C Preferred Stock has preference or priority
in the payment of dividends or in the distribution of
assets on any liquidation, dissolution or winding up of
the Corporation.
"Non-Electing Share" shall have the meaning set forth in
paragraph (e) of Section 7 hereof.
"Parity Stock" shall have the meaning set forth in
paragraph (b) of Section 8 hereof.
"Permitted Common Stock Cash Distributions" means cash
dividends and distributions paid after December 31, 1994,
not in excess of the Company's cumulative undistributed
net earnings at December 31, 1994, plus the cumulative
amount of funds from operations, as determined by the
Board of Directors on a basis consistent with the
financial reporting practices of the Corporation, after
December 31, 1994, minus the cumulative amount of
dividends accrued or paid on the Series C Preferred Stock
or any other class of Preferred Stock after January 1,
1995.
"Person" shall mean any individual, firm, partnership,
corporation or other entity, and shall include any
successor (by merger or otherwise) of such entity.
"Press Release" shall have the meaning set forth in
paragraph (b) of Section 5 hereof.
"Securities" shall have the meaning set forth in
paragraph (d)(iii) of Section 7 hereof.
"Series A Preferred Stock" shall mean the $1.75 Series A
Cumulative Convertible Preferred Stock, liquidation
preference $25.00 per share, authorized on June 22, 1993,
which is, from time to time, outstanding.
"Series B Preferred Stock" shall mean the $2.205 Series
B Cumulative Convertible Preferred Stock, liquidation
preference $25.00 per share, authorized on October 31,
1994, which is, from time to time, outstanding.
"Series C Preferred Stock" shall have the meaning set
forth in Section 1 hereof.
"set apart for payment" shall be deemed to include,
without any action other than the following, the
recording by the Corporation in its accounting ledgers of
any accounting or bookkeeping entry which indicates,
pursuant to a declaration of dividends or other
distribution by the Board of Directors, the allocation of
funds to be so paid on any series or class of capital
stock of the Corporation; PROVIDED, HOWEVER, that if any
funds for any class or series of Junior Stock or any
class or series of stock ranking on a parity with the
Series C Preferred Stock as to the payment of dividends
are placed in a separate account of the Corporation or
delivered to a disbursing, paying or other similar agent,
then "set apart for payment" with respect to the Series
C Preferred Stock shall mean placing such funds in a
separate account or delivering such funds to a
disbursing, paying or other similar agent.
"Trading Day" shall mean any day on which the securities
in question are traded on the NYSE, or if such securities
are not listed or admitted for trading on the NYSE, on
the principal national securities exchange on which such
securities are listed or admitted, or if not listed or
admitted for trading on any national securities exchange,
on the National Market System of NASDAQ, or if such
securities are not quoted on such National Market System,
in the applicable securities market in which the
securities are traded.
"Transaction" shall have the meaning set forth in
paragraph (e) of Section 7 hereof.
"Transfer Agent" means First Union National Bank,
Charlotte, North Carolina, or such other agent or agents
of the Corporation as may be designated by the Board of
Directors or their designee as the transfer agent for the
Series C Preferred Stock.
"Voting Preferred Stock" shall have the meaning set forth
in Section 9 hereof.
Section 3. DIVIDENDS. (a) The holders of shares of the Series C
Preferred Stock shall be entitled to receive, when, as and if declared by the
Board of Directors, out of funds legally available for that purpose,
dividends payable in cash in an amount per share of Series C Preferred Stock
equal to the greater of (i) $.5375 per quarter (equivalent to $2.15 per
annum) or (ii) the cash dividend on the number of shares of Common Stock, or
portion thereof, into which a share of Series C Preferred Stock is
convertible. The amount referred to in (ii) of the immediately preceding
sentence shall be determined as of each Dividend Payment Date by multiplying
the number of shares of Common Stock, or portion thereof, calculated to the
fourth decimal place, into which a share of Series C Preferred Stock is
convertible at the opening of business on such Dividend Payment Date by the
quarterly cash dividend payable in respect of a share of Common Stock on such
Dividend Payment Date. Such dividends shall be cumulative from the Issue
Date, whether or not in any Dividend Period or Periods there shall be funds
of the Corporation legally available for the payment of such dividends, and
shall be payable quarterly, when, as and if declared by the Board of
Directors, in arrears on Dividend Payment Dates, commencing on June 30, 1995.
Each such dividend shall be payable in arrears to the holders of record of
shares of the Series C Preferred Stock, as they appear on the stock records
of the Corporation at the close of business on such record dates, not more
than 60 days preceding such Dividend Payment Dates thereof, as shall be fixed
by the Board of Directors which record dates and Dividend Payment Dates shall
coincide with the record dates and Dividend Payment Dates for the quarterly
dividends, if any, payable on Common Stock. Accrued and unpaid dividends for
any past Dividend Periods may be declared and paid at any time, without
reference to any regular Dividend Payment Date, to holders of record on such
date, not exceeding 45 days preceding the payment date thereof, as may be
fixed by the Board of Directors.
(b) The amount of dividends payable for each full Dividend Period for
the Series C Preferred Stock shall be computed by dividing the annual
dividend rate by four. The amount of dividends payable for any period
shorter or longer than a full Dividend Period on the Series C Preferred Stock
shall be computed on the basis of twelve 30-day months and a 360-day year.
Holders of shares of Series C Preferred Stock shall not be entitled to any
dividends, whether payable in cash, property or stock, in excess of
cumulative dividends, as herein provided, on the Series C Preferred Stock.
No interest, or sum of money in lieu of interest, shall be payable in respect
of any dividend payment or payments on the Series C Preferred Stock that may
be in arrears.
(c) So long as any shares of the Series C Preferred Stock are
outstanding, no dividends, except as described in the immediately following
sentence, shall be declared or paid or set apart for payment on any class or
series of Parity Stock for any period unless full cumulative dividends have
been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for such payment on the Series
C Preferred Stock for all Dividend Periods terminating on or prior to the
Dividend Payment Date on such class or series of Parity Stock. When
dividends are not paid in full or a sum sufficient for such payment is not
set apart, as aforesaid, all dividends declared upon shares of the Series C
Preferred Stock and all dividends declared upon any other class or series of
Parity Stock shall be declared ratably in proportion to the respective
amounts of dividends accumulated and unpaid on the Series C Preferred Stock
and accumulated and unpaid on such Parity Stock.
(d) So long as any shares of the Series C Preferred Stock are
outstanding, no dividends (other than dividends or distributions paid in
shares of, or options, warrants or rights to subscribe for or purchase shares
of, Junior Stock), shall be declared or paid or set apart for payment or
other distribution declared or made upon Junior Stock, nor shall Junior Stock
be redeemed, purchased or otherwise acquired (other than a redemption,
purchase or other acquisition of shares of Common Stock made for purposes of
an employee incentive or benefit plan of the Corporation or any subsidiary)
for any consideration (or any moneys be paid to or made available for a
sinking fund for the redemption of any shares of any such stock) by the
Corporation, directly or indirectly (except by conversion into or exchange
for Junior Stock), unless in each case (i) the full cumulative dividends on
all outstanding shares of the Series C Preferred Stock and any other Parity
Stock of the Corporation shall have been paid or set apart for payment for
all past Dividend Periods with respect to the Series C Preferred Stock and
all past dividend periods with respect to such Parity Stock and (ii)
sufficient funds shall have been paid or set apart for the payment of the
dividend for the current Dividend Period with respect to the Series C
Preferred Stock and the current dividend period with respect to such Parity
Stock.
Section 4. LIQUIDATION PREFERENCE. (a) In the event of any
liquidation, dissolution or winding up of the Corporation, whether voluntary
or involuntary, before any payment or distribution of the assets of the
Corporation (whether capital or surplus) shall be made to or set apart for
the holders of Junior Stock, the holders of the shares of Series C Preferred
Stock shall be entitled to receive Twenty-five Dollars ($25.00) per share of
Series C Preferred Stock plus an amount equal to all dividends (whether or
not earned or declared) accrued and unpaid thereon to the date of final
distribution to such holders; but such holders shall not be entitled to any
further payment. If, upon any liquidation, dissolution or winding up of the
Corporation, the assets of the Corporation, or proceeds thereof,
distributable among the holders of the shares of Series C Preferred Stock
shall be insufficient to pay in full the preferential amount aforesaid and
liquidating payments on any other shares of any class or series of Parity
Stock, then such assets, or the proceeds thereof, shall be distributed among
the holders of shares of Series C Preferred Stock and any such other Parity
Stock ratably in accordance with the respective amounts that would be payable
on such shares of Series C Preferred Stock and any such other Parity Stock if
all amounts payable thereon were paid in full. For the purposes of this
Section 4, (i) a consolidation or merger of the Corporation with one or more
corporations, (ii) a sale or transfer of all or substantially all of the
Corporation's assets, or (iii) a statutory share exchange shall not be deemed
to be a liquidation, dissolution or winding up, voluntary or involuntary, of
the Corporation.
(b) Subject to the rights of the holders of shares of any series or
class or classes of stock ranking on a parity with or prior to the Series C
Preferred Stock upon liquidation, dissolution or winding up, upon any
liquidation, dissolution or winding up of the Corporation, after payment
shall have been made in full to the holders of the Series C Preferred Stock,
as provided in this Section 4, any other series or class or classes of Junior
Stock shall, subject to the respective terms and provisions (if any) applying
thereto, be entitled to receive any and all assets remaining to be paid or
distributed, and the holders of the Series C Preferred Stock shall not be
entitled to share therein.
Section 5. REDEMPTION AT THE OPTION OF THE CORPORATION. (a) The
Series C Preferred Stock shall not be redeemable by the Corporation prior to
March 31, 2000. On and after March 31, 2000, the Corporation, at its option,
may redeem the shares of Series C Preferred Stock in whole or in part, as set
forth herein, subject to the provisions described below.
(b) The Series C Preferred Stock may be redeemed, in whole or in part,
at the option of the Corporation, at any time, only if for 20 Trading Days,
within any period of 30 consecutive Trading Days, including the last Trading
Day of such period, the Current Market Price of the Common Stock on each of
such 20 Trading Days equals or exceeds the Conversion Price in effect on such
Trading Day. In order to exercise its redemption option, the Corporation
must issue a press release announcing the redemption (the "Press Release")
prior to the opening of business on the second Trading Day after the
condition in the preceding sentence has, from time to time, been met. The
Corporation may not issue a Press Release prior to February 28, 2000. The
Press Release shall announce the redemption and set forth the number of
shares of Series C Preferred Stock which the Corporation intends to redeem.
The Call Date shall be selected by the Corporation, shall be specified in the
notice of redemption and shall be not less than 30 days or more than 60 days
after the date on which the Corporation issues the Press Release.
(c) Upon redemption of Series C Preferred Stock by the Corporation on
the date specified in the notice to holders required under subparagraph (e)
of this Section 5 (the "Call Date"), each share of Series C Preferred Stock
so redeemed shall be converted into a number of shares of Common Stock equal
to the liquidation preference (excluding any accrued and unpaid dividends) of
the shares of Series C Preferred Stock being redeemed divided by the
Conversion Price as of the opening of business on the Call Date.
Upon any redemption of Series C Preferred Stock, the Corporation shall
pay any accrued and unpaid dividends in arrears for any Dividend Period
ending on or prior to the Call Date. If the Call Date falls after a dividend
payment record date and prior to the corresponding Dividend Payment Date,
then each holder of Series C Preferred Stock at the close of business on such
dividend payment record date shall be entitled to the dividend payable on
such shares on the corresponding Dividend Payment Date notwithstanding the
redemption of such shares before such Dividend Payment Date. Except as
provided above, the Corporation shall make no payment or allowance for unpaid
dividends, whether or not in arrears, on shares of Series C Preferred Stock
called for redemption or on the shares of Common Stock issued upon such
redemption.
(d) If full cumulative dividends on the Series C Preferred Stock and
any other class or series of Parity Stock of the Corporation have not been
paid or declared and set apart for payment, the Series C Preferred Stock may
not be redeemed in part and the Corporation may not purchase or acquire
shares of Series C Preferred Stock, otherwise than pursuant to a purchase or
exchange offer made on the same terms to all holders of shares of Series C
Preferred Stock.
(e) If the Corporation shall redeem shares of Series C Preferred Stock
pursuant to paragraph (a) of this Section 5, notice of such redemption shall
be given not more than four Business Days after the date on which the
Corporation issues the Press Release to each holder of record of the shares
to be redeemed. Such notice shall be provided by first class mail, postage
prepaid, at such holder's address as the same appears on the stock records of
the Corporation, or by publication in THE WALL STREET JOURNAL or THE NEW YORK
TIMES, or if neither such newspaper is then being published, any other daily
newspaper of national circulation. If the Corporation elects to provide such
notice by publication, it shall also promptly mail notice of such redemption
to the holders of the Series C Preferred Stock to be redeemed. Neither the
failure to mail any notice required by this paragraph (e), nor any defect
therein or in the mailing thereof, to any particular holder, shall affect the
sufficiency of the notice or the validity of the proceedings for redemption
with respect to the other holders. Any notice which was mailed in the manner
herein provided shall be conclusively presumed to have been duly given on the
date mailed whether or not the holder receives the notice. Each such mailed
or published notice shall state, as appropriate: (1) the Call Date; (2) the
number of shares of Series C Preferred Stock to be redeemed and, if fewer
than all the shares held by such holder are to be redeemed, the number of
such shares to be redeemed from such holder; (3) the number of shares of
Common Stock to be issued with respect to each share of Series C Preferred
Stock; (4) the place or places at which certificates for such shares are to
be surrendered for certificates representing shares of Common Stock; (5) the
then-current Conversion Price; and (6) that dividends on the shares to be
redeemed shall cease to accrue on such Call Date except as otherwise provided
herein. Notice having been published or mailed as aforesaid, from and after
the Call Date (unless the Corporation shall fail to make available a number
of shares of Common Stock or amount of cash necessary to effect such
redemption), (i) except as otherwise provided herein, dividends on the shares
of the Series C Preferred Stock so called for redemption shall cease to
accrue, (ii) said shares shall no longer be deemed to be outstanding, and
(iii) all rights of the holders thereof as holders of Series C Preferred
Stock of the Corporation shall cease (except the rights to receive the shares
of Common Stock and cash payable upon such redemption, without interest
thereon, upon surrender and endorsement of their certificates if so required
and to receive any dividends payable thereon). The Corporation's obligation
to provide shares of Common Stock and cash in accordance with the preceding
sentence shall be deemed fulfilled if, on or before the Call Date, the
Corporation shall deposit with a bank or trust company (which may be an
affiliate of the Corporation) that has an office in the Borough of Manhattan,
City of New York, or in Charlotte, North Carolina and that has, or is an
affiliate of a bank or trust company that has, a capital and surplus of at
least $50,000,000, shares of Common Stock and any cash necessary for such
redemption, in trust, with irrevocable instructions that such shares of
Common Stock and cash be applied to the redemption of the shares of Series C
Preferred Stock so called for redemption. At the close of business on the
Call Date, each holder of Series C Preferred Stock to be redeemed (unless the
Company defaults in the delivery of the shares of Common Stock or cash
payable on such Call Date) shall be deemed to be the record holder of the
number of shares of Common Stock into which such Series C Preferred Stock is
to be redeemed, regardless of whether such holder has surrendered the
certificates representing the Series C Preferred Stock. No interest shall
accrue for the benefit of the holders of Series C Preferred Stock to be
redeemed on any cash so set aside by the Corporation. Subject to applicable
escheat laws, any such cash unclaimed at the end of two years from the Call
Date shall revert to the general funds of the Corporation, after which
reversion the holders of such shares so called for redemption shall look only
to the general funds of the Corporation for the payment of such cash.
As promptly as practicable after the surrender in accordance with said
notice of the certificates for any such shares so redeemed (properly endorsed
or assigned for transfer, if the Corporation shall so require and if the
notice shall so state), such shares shall be exchanged for certificates of
shares of Common Stock and any cash (without interest thereon) for which such
shares have been redeemed. If fewer than all the outstanding shares of
Series C Preferred Stock are to redeemed, shares to be redeemed shall be
selected by the Corporation from outstanding shares of Series C Preferred
Stock not previously called for redemption by lot or pro rata (as nearly as
may be) or by any other method determined by the Corporation in its sole
discretion to be equitable. If fewer than all the shares of Series C
Preferred Stock represented by any certificate are redeemed, then new
certificates representing the unredeemed shares shall be issued without cost
to the holder thereof.
(f) No fractional shares or scrip representing fractions of shares of
Common Stock shall be issued upon redemption of the Series C Preferred Stock.
Instead of any fractional interest in a share of Common Stock that would
otherwise be deliverable upon the redemption of a share of Series C Preferred
Stock, the Corporation shall pay to the holder of such share an amount in
cash (computed to the nearest cent) based upon the Current Market Price of
Common Stock on the Trading Day immediately preceding the Call Date. If more
than one share shall be surrendered for redemption at one time by the same
holder, the number of full shares of Common Stock issuable upon redemption
thereof shall be computed on the basis of the aggregate number of shares of
Series C Preferred Stock so surrendered.
(g) The Corporation covenants that any shares of Common Stock issued
upon redemption of the Series C Preferred Stock shall be validly issued,
fully paid and non-assessable. The Corporation shall endeavor to list the
shares of Common Stock required to be delivered upon redemption of the Series
C Preferred Stock, prior to such redemption, upon each national securities
exchange, if any, upon which the outstanding Common Stock is listed at the
time of such delivery.
The Corporation shall endeavor to take any action necessary to ensure
that any shares of Common Stock issued upon the redemption of Series C
Preferred Stock are freely transferable and not subject to any resale
restrictions under the Securities Act of 1933, as amended (the "Act"), or any
applicable state securities or blue sky laws (other than any shares of Common
Stock issued upon redemption of any Series C Preferred Stock which are held
by an "affiliate" (as defined in Rule 144 under the Act) of the Corporation).
Section 6. SHARES TO BE RETIRED.
All shares of Series C Preferred Stock which shall have been issued and
reacquired in any manner by the Corporation shall be restored to the status
of authorized but unissued shares of Preferred Stock, without designation as
to series. The Corporation may also retire any unissued shares of Series C
Preferred Stock, and such shares shall then be restored to the status of
authorized but unissued shares of Preferred Stock, without designation as to
series.
Section 7. CONVERSION.
Holders of shares of Series C Preferred Stock shall have the right to
convert all or a portion of such shares into shares of Common Stock, as
follows:
(a) Subject to and upon compliance with the provisions of this Section
7, a holder of shares of Series C Preferred Stock shall have the right, at
his or her option, at any time to convert such shares into the number of
fully paid and non-assessable shares of Common Stock obtained by dividing the
aggregate liquidation preference (excluding any accrued and unpaid dividends)
of such shares by the Conversion Price (as in effect at the time and on the
date provided for in the last paragraph of paragraph (b) of this Section 7)
by surrendering such shares to be converted, such surrender to be made in the
manner provided in Section 7 paragraph (b); PROVIDED, HOWEVER, that the right
to convert shares called for redemption pursuant to Section 5 shall terminate
at the close of business on the Call Date fixed for such redemption, unless
the Corporation shall default in making payment of the shares of Common Stock
and any cash payable upon such redemption under Section 5 hereof.
(b) In order to exercise the conversion right, the holder of each share
of Series C Preferred Stock to be converted shall surrender the certificate
representing such share, duly endorsed or assigned to the Corporation or in
blank, at the office of the Transfer Agent, accompanied by written notice to
the Corporation that the holder thereof elects to convert such Series C
Preferred Stock. Unless the shares issuable on conversion are to be issued
in the same name as the name in which such share of Series C Preferred Stock
is registered, each share surrendered for conversion shall be accompanied by
instruments of transfer, in form satisfactory to the Corporation, duly
executed by the holder or such holder's duly authorized attorney and an
amount sufficient to pay any transfer or similar tax (or evidence reasonably
satisfactory to the Corporation demonstrating that such taxes have been
paid).
Holders of shares of Series C Preferred Stock at the close of business
on a dividend payment record date shall be entitled to receive the dividend
payable on such shares on the corresponding Dividend Payment Date
notwithstanding the conversion thereof following such dividend payment record
date and prior to such Dividend Payment Date. However, shares of Series C
Preferred Stock surrendered for conversion during the period between the
close of business on any dividend payment record date and the opening of
business on the corresponding Dividend Payment Date (except shares converted
after the issuance of notice of redemption with respect to a Call Date during
such period, such shares of Series C Preferred Stock being entitled to such
dividend on the Dividend Payment Date) must be accompanied by payment of an
amount equal to the dividend payable on such shares on such Dividend Payment
Date. A holder of shares of Series C Preferred Stock on a dividend payment
record date who (or whose transferee) tenders any such shares for conversion
into shares of Common Stock on such Dividend Payment Date will receive the
dividend payable by the Corporation on such shares of Series C Preferred
Stock on such date, and the converting holder need not include payment of the
amount of such dividend upon surrender of shares of Series C Preferred Stock
for conversion. Except as provided above, the Corporation shall make no
payment or allowance for unpaid dividends, whether or not in arrears, on
converted shares or for dividends on the shares of Common Stock issued upon
such conversion.
As promptly as practicable after the surrender of certificates for
shares of Series C Preferred Stock as aforesaid, the Corporation shall issue
and shall deliver at such office to such holder, or on his or her written
order, a certificate or certificates for the number of full shares of Common
Stock issuable upon the conversion of such shares in accordance with
provisions of this Section 7, and any fractional interest in respect of a
share of Common Stock arising upon such conversion shall be settled as
provided in paragraph (c) of this Section 7.
Each conversion shall be deemed to have been effected immediately prior
to the close of business on the date on which the certificates for shares of
Series C Preferred Stock shall have been surrendered and such notice (and if
applicable, payment of an amount equal to the dividend payable on such
shares) received by the Corporation as aforesaid, and the person or persons
in whose name or names any certificate or certificates for shares of Common
Stock shall be issuable upon such conversion shall be deemed to have become
the holder or holders of record of the shares represented thereby at such
time on such date and such conversion shall be at the Conversion Price in
effect at such time on such date unless the stock transfer books of the
Corporation shall be closed on that date, in which event such person or
persons shall be deemed to have become such holder or holders of record at
the close of business on the next succeeding day on which such stock transfer
books are open, but such conversion shall be at the Conversion Price in
effect on the date on which such shares shall have been surrendered and such
notice received by the Corporation.
(c) No fractional shares or scrip representing fractions of shares of
Common Stock shall be issued upon conversion of the Series C Preferred Stock.
Instead of any fractional interest in a share of Common Stock that would
otherwise be deliverable upon the conversion of a share of Series C Preferred
Stock, the Corporation shall pay to the holder of such share an amount in
cash based upon the Current Market Price of Common Stock on the Trading Day
immediately preceding the date of conversion. If more than one share shall
be surrendered for conversion at one time by the same holder, the number of
full shares of Common Stock issuable upon conversion thereof shall be
computed on the basis of the aggregate number of shares of Series C Preferred
Stock so surrendered.
(d) The Conversion Price shall be adjusted from time to time as
follows:
(i) If the Corporation shall after the Issue Date (A) pay a
dividend or make a distribution on its capital stock in shares of its Common
Stock, (B) subdivide its outstanding Common Stock into a greater number of
shares, (C) combine its outstanding Common Stock into a smaller number of
shares or (D) issue any shares of capital stock by reclassification of its
Common Stock, the Conversion Price in effect at the opening of business on
the day following the date fixed for the determination of stockholders
entitled to receive such dividend or distribution or at the opening of
business on the day following the day on which such subdivision, combination
or reclassification becomes effective, as the case may be, shall be adjusted
so that the holder of any share of Series C Preferred Stock thereafter
surrendered for conversion shall be entitled to receive the number of shares
of Common Stock that such holder would have owned or have been entitled to
receive after the happening of any of the events described above had such
shares of Series C Preferred Stock been converted immediately prior to the
record date in the case of a dividend or distribution or the effective date
in the case of a subdivision, combination or reclassification. An adjustment
made pursuant to this subparagraph (i) shall become effective immediately
after the opening of business on the day next following the record date
(except as provided in paragraph (h) below) in the case of a dividend or
distribution and shall become effective immediately after the opening of
business on the day next following the effective date in the case of a
subdivision, combination or reclassification.
(ii) If the Corporation shall issue after the Issue Date rights,
options or warrants to all holders of Common Stock entitling them (for a
period expiring within 45 days after the record date mentioned below) to
subscribe for or purchase Common Stock at a price per share less than the
Fair Market Value per share of Common Stock on the record date for the
determination of stockholders entitled to receive such rights or warrants,
then the Conversion Price in effect at the opening of business on the day
next following such record date shall be adjusted to equal the price
determined by multiplying (I) the Conversion Price in effect immediately
prior to the opening of business on the day following the date fixed for such
determination by (II) a fraction, the numerator of which shall be the sum of
(A) the number of shares of Common Stock outstanding on the close of business
on the date fixed for such determination and (B) the number of shares that
the aggregate proceeds to the Corporation from the exercise of such rights or
warrants for Common Stock would purchase at such Fair Market Value, and the
denominator of which shall be the sum of (A) the number of shares of Common
Stock outstanding on the close of business on the date fixed for such
determination and (B) the number of additional shares of Common Stock offered
for subscription or purchase pursuant to such rights or warrants. Such
adjustment shall become effective immediately after the opening of business
on the day next following such record date (except as provided in paragraph
(h) below). In determining whether any rights or warrants entitle the
holders of Common Stock to subscribe for or purchase shares of Common Stock
at less than such Fair Market Value, there shall be taken into account any
consideration received by the Corporation upon issuance and upon exercise of
such rights or warrants, the value of such consideration, if other than cash,
to be determined by the Chief Executive Officer or the Board of Directors.
(iii) If the Corporation shall distribute to all holders of its
Common Stock any shares of capital stock of the Corporation (other than
Common Stock) or evidence of its indebtedness or assets (excluding Permitted
Common Stock Cash Distributions and cash dividends which result in a payment
of an equal cash dividend to the holders of the Series C Preferred Stock
pursuant to subparagraph (ii) of Section 3(a) hereof) or rights or warrants
to subscribe for or purchase any of its securities (excluding those rights
and warrants issued to all holders of Common Stock entitling them for a
period expiring within 45 days after the record date referred to in
subparagraph (ii) above to subscribe for or purchase Common Stock, which
rights and warrants are referred to in and treated under subparagraph (ii)
above) (any of the foregoing being hereinafter in this subparagraph (iii)
called the "Securities"), then in each such case the Conversion Price shall
be adjusted so that it shall equal the price determined by multiplying (I)
the Conversion Price in effect immediately prior to the close of business on
the date fixed for the determination of stockholders entitled to receive such
distribution by (II) a fraction, the numerator of which shall be the Fair
Market Value per share of the Common Stock on the record date mentioned below
less the then fair market value (as determined by the Chief Executive Officer
or the Board of Directors, whose determination shall be conclusive), of the
portion of the capital stock or assets or evidences of indebtedness so
distributed or of such rights or warrants applicable to one share of Common
Stock, and the denominator of which shall be the Fair Market Value per share
of the Common Stock on the record date mentioned below. Such adjustment
shall become effective immediately at the opening of business on the
Business Day next following (except as provided in paragraph (h) below) the
record date for the determination of shareholders entitled to receive such
distribution. For the purposes of this clause (iii), the distribution of a
Security, which is distributed not only to the holders of the Common Stock on
the date fixed for the determination of stockholders entitled to such
distribution of such Security, but also is distributed with each share of
Common Stock delivered to a Person converting a share of Series C Preferred
Stock after such determination date, shall not require an adjustment of the
Conversion Price pursuant to this clause (iii); PROVIDED that on the date,
if any, on which a person converting a share of Series C Preferred Stock
would no longer be entitled to receive such Security with a share of Common
Stock (other than as a result of the termination of all such Securities), a
distribution of such Securities shall be deemed to have occurred and the
Conversion Price shall be adjusted as provided in this clause (iii) and such
day shall be deemed to be "the date fixed for the determination of the
stockholders entitled to receive such distribution" and "the record date"
within the meaning of the two preceding sentences.
(iv) No adjustment in the Conversion Price shall be required unless
such adjustment would require a cumulative increase or decrease of at least
1% in such price; PROVIDED, HOWEVER, that any adjustments that by reason of
this subparagraph (iv) are not required to be made shall be carried forward
and taken into account in any subsequent adjustment until made; and PROVIDED,
FURTHER, that any adjustment shall be required and made in accordance with
the provisions of this Section 7 (other than this subparagraph (iv)) not
later than such time as may be required in order to preserve the tax-free
nature of a distribution to the holders of shares of Common Stock.
Notwithstanding any other provisions of this Section 7, the Corporation shall
not be required to make any adjustment of the Conversion Price for the
issuance of any shares of Common Stock pursuant to any plan providing for the
reinvestment of dividends or interest payable on securities of the
Corporation and the investment of additional optional amounts in shares of
Common Stock under such plan. All calculations under this Section 7 shall be
made to the nearest cent (with $.005 being rounded upward) or to the nearest
one-tenth of a share (with .05 of a share being rounded upward), as the case
may be. Anything in this paragraph (d) to the contrary notwithstanding, the
Corporation shall be entitled, to the extent permitted by law, to make such
reductions in the Conversion Price, in addition to those required by this
paragraph (d), as it in its discretion shall determine to be advisable in
order that any stock dividends, subdivision of shares, reclassification or
combination of shares, distribution of rights or warrants to purchase stock
or securities, or a distribution of other assets (other than cash dividends)
hereafter made by the Corporation to its stockholders shall not be taxable,
or if that is not possible, to diminish any income taxes that are otherwise
payable because of such event.
(e) If the Corporation shall be a party to any transaction (including
without limitation a merger, consolidation, statutory share exchange, self
tender offer for all or substantially all shares of Common Stock, sale of all
or substantially all of the Corporation's assets or recapitalization of the
Common Stock and excluding any transaction as to which subparagraph (d)(i) of
this Section 7 applies) (each of the foregoing being referred to herein as a
"Transaction"), in each case as a result of which shares of Common Stock
shall be converted into the right to receive stock, securities or other
property (including cash or any combination thereof), each share of Series C
Preferred Stock which is not converted into the right to receive stock,
securities or other property in connection with such Transaction shall
thereafter be convertible into the kind and amount of shares of stock,
securities and other property (including cash or any combination thereof)
receivable upon the consummation of such Transaction by a holder of that
number of shares of Common Stock into which one share of Series C Preferred
Stock was convertible immediately prior to such Transaction, assuming such
holder of Common Stock (i) is not a Person with which the Corporation
consolidated or into which the Corporation merged or which merged into the
Corporation or to which such sale or transfer was made, as the case may be
("Constituent Person"), or an affiliate of a Constituent Person and (ii)
failed to exercise his rights of election, if any, as to the kind or amount
of stock, securities and other property (including cash) receivable upon such
Transaction (provided that if the kind or amount of stock, securities and
other property (including cash) receivable upon such Transaction is not the
same for each share of Common Stock of the Corporation held immediately prior
to such Transaction by other than a Constituent Person or an affiliate
thereof and in respect of which such rights of election shall not have been
exercised ("Non-Electing Share"), then for the purpose of this paragraph (e)
the kind and amount of stock, securities and other property (including cash)
receivable upon such Transaction by each Non-Electing Share shall be deemed
to be the kind and amount so receivable per share by a plurality of the
non-electing shares). The Corporation shall not be a party to any
Transaction unless the terms of such Transaction are consistent with the
provisions of this paragraph (e), and it shall not consent or agree to the
occurrence of any Transaction until the Corporation has entered into an
agreement with the successor or purchasing entity, as the case may be, for
the benefit of the holders of the Series C Preferred Stock that will contain
provisions enabling the holders of the Series C Preferred Stock that remains
outstanding after such Transaction to convert into the consideration received
by holders of Common Stock at the Conversion Price in effect immediately
prior to such Transaction. The provisions of this paragraph (e) shall
similarly apply to successive Transactions.
(f) If:
(i) the Corporation shall declare a dividend (or any other
distribution) on the Common Stock (other than Permitted Common Stock Cash
Distributions); or
(ii) the Corporation shall authorize the granting to the holders of
the Common Stock of rights or warrants to subscribe for or purchase any
shares of any class or any other rights or warrants; or
(iii) there shall be any reclassification of the Common Stock
(other than an event to which subparagraph (d)(i) of this Section 7 applies)
or any consolidation or merger to which the Corporation is a party and for
which approval of any stockholders of the Corporation is required, or a
statutory share exchange, or a self tender offer by the Company for all or
substantially all of its outstanding shares of Common Stock or the sale or
transfer of all or substantially all of the assets of the Corporation as an
entirety; or
(iv) there shall occur the voluntary or involuntary liquidation,
dissolution or winding up of the Corporation,
then the Corporation shall cause to be filed with the Transfer Agent and
shall cause to be mailed to the holders of shares of the Series C Preferred
Stock at their addresses as shown on the stock records of the Corporation, as
promptly as possible, but at least 15 days prior to the applicable date
hereinafter specified, a notice stating (A) the date on which a record is to
be taken for the purpose of such dividend, distribution or rights or
warrants, or, if a record is not to be taken, the date as of which the
holders of Common Stock of record to be entitled to such dividend,
distribution or rights or warrants are to be determined or (B) the date on
which such reclassification, consolidation, merger, statutory share exchange,
sale, transfer, liquidation, dissolution 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, if any, deliverable upon such
reclassification, consolidation, merger, statutory share exchange, sale,
transfer, liquidation, dissolution or winding up. Failure to give or receive
such notice or any defect therein shall not affect the legality or validity
of the proceedings described in this Section 7.
(g) Whenever the Conversion Price is adjusted as herein provided, the
Corporation shall promptly file with the Transfer Agent an officer's
certificate setting forth the Conversion Price after such adjustment and
setting forth a brief statement of the facts requiring such adjustment which
certificate shall be conclusive evidence of the correctness of such
adjustment absent manifest error. Promptly after delivery of such
certificate, the Corporation shall prepare a notice of such adjustment of the
Conversion Price setting forth the adjusted Conversion Price and the
effective date of such adjustment becomes effective and shall mail such
notice of such adjustment of the Conversion Price to the holder of each share
of Series C Preferred Stock at such holder's last address as shown on the
stock records of the Corporation.
(h) In any case in which paragraph (d) of this Section 7 provides that
an adjustment shall become effective on the day next following the record
date for an event, the Corporation may defer until the occurrence of such
event (A) issuing to the holder of any share of Series C Preferred Stock
converted after such record date and before the occurrence of such event the
additional shares of Common Stock issuable upon such conversion by reason of
the adjustment required by such event over and above the Common Stock
issuable upon such conversion before giving effect to such adjustment and (B)
paying to such holder any amount of cash in lieu of any fraction pursuant to
paragraph (c) of this Section 7.
(i) There shall be no adjustment of the Conversion Price in case of the
issuance of any stock of the Corporation in a reorganization, acquisition or
other similar transaction except as specifically set forth in this Section 7.
If any action or transaction would require adjustment of the Conversion Price
pursuant to more than one paragraph of this Section 7, only one adjustment
shall be made and such adjustment shall be the amount of adjustment that has
the highest absolute value.
(j) If the Corporation shall take any action affecting the Common
Stock, other than action described in this Section 7, that in the opinion of
the Board of Directors would materially adversely affect the conversion
rights of the holders of the shares of Series C Preferred Stock, the
Conversion Price for the Series C Preferred Stock may be adjusted, to the
extent permitted by law, in such manner, if any, and at such time, as the
Board of Directors, in its sole discretion, may determine to be equitable in
the circumstances.
(k) The Corporation covenants that it will at all times reserve and
keep available, free from preemptive rights, out of the aggregate of its
authorized but unissued shares of Common Stock, for the purpose of effecting
conversion of the Series C Preferred Stock, the full number of shares of
Common Stock deliverable upon the conversion of all outstanding shares of
Series C Preferred Stock not theretofore converted. For purposes of this
paragraph (k), the number of shares of Common Stock that shall be deliverable
upon the conversion of all outstanding shares of Series C Preferred Stock
shall be computed as if at the time of computation all such outstanding
shares were held by a single holder.
The Corporation covenants that any shares of Common Stock issued upon
conversion of the Series C Preferred Stock shall be validly issued, fully
paid and non-assessable.
The Corporation shall endeavor to list the shares of Common Stock
required to be delivered upon conversion of the Series C Preferred Stock,
prior to such delivery, upon each national securities exchange, if any, upon
which the outstanding Common Stock is listed at the time of such delivery.
Prior to the delivery of any securities that the Corporation shall be
obligated to deliver upon conversion of the Series C Preferred Stock, the
Corporation shall endeavor to comply with all federal and state laws and
regulations thereunder requiring the registration of such securities with, or
any approval of or consent to the delivery thereof by, any governmental
authority.
(l) The Corporation will pay any and all documentary stamp or similar
issue or transfer taxes payable in respect of the issue or delivery of shares
of Common Stock or other securities or property on conversion of the Series
C Preferred Stock pursuant hereto; PROVIDED, HOWEVER, that the Corporation
shall not be required to pay any tax that may be payable in respect of any
transfer involved in the issue or delivery of shares of Common Stock or other
securities or property in a name other than that of the holder of the Series
C Preferred Stock to be converted, and no such issue or delivery shall be
made unless and until the person requesting such issue or delivery has paid
to the Corporation the amount of any such tax or established, to the
reasonable satisfaction of the Corporation, that such tax has been paid.
Section 8. RANKING. Any class or series of stock of the Corporation
shall be deemed to rank:
(a) prior to the Series C Preferred Stock, as to the payment of
dividends and as to distribution of assets upon liquidation, dissolution or
winding up, if the holders of such class or series shall be entitled to the
receipt of dividends or of amounts distributable upon liquidation,
dissolution or winding up, as the case may be, in preference or priority to
the holders of Series C Preferred Stock;
(b) on a parity with the Series C Preferred Stock, as to the payment of
dividends and as to distribution of assets upon liquidation, dissolution or
winding up, whether or not the dividend rates, dividend payment dates or
redemption or liquidation prices per share thereof be different from those of
the Series C Preferred Stock, if the holders of such class of stock or series
and the Series C Preferred Stock shall be entitled to the receipt of
dividends and of amounts distributable upon liquidation, dissolution or
winding up in proportion to their respective amounts of accrued and unpaid
dividends per share or liquidation preferences, without preference or
priority one over the other ("Parity Stock"); the Series A Preferred Stock
and the Series B Preferred Stock shall be Parity Stock with respect to the
Series C Preferred Stock; and
(c) junior to the Series C Preferred Stock, as to the payment of
dividends or as to the distribution of assets upon liquidation, dissolution
or winding up, if such stock or series shall be Common Stock or if the
holders of Series A Preferred Stock shall be entitled to receipt of dividends
or of amounts distributable upon liquidation, dissolution or winding up, as
the case may be, in preference or priority to the holders of shares of such
stock or series.
Section 9. VOTING. If and whenever six quarterly dividends (whether
or not consecutive) payable on the Series C Preferred Stock or any series or
class of Parity Stock shall be in arrears (which shall, with respect to any
such quarterly dividend, mean that any such dividend has not been paid in
full), whether or not earned or declared, the number of directors then
constituting the Board of Directors shall be increased by two (if not already
increased by reason of a similar arrearage with respect to any Parity Stock)
and the holders of shares of Series C Preferred Stock, together with the
holders of shares of every other series of Parity Stock (any such other
series, the "Voting Preferred Stock"), voting as a single class regardless of
series, shall be entitled to elect the two additional directors to serve on
the Board of Directors at any annual meeting of stockholders or special
meeting held in place thereof, or at a special meeting of the holders of the
Series C Preferred Stock and the Voting Preferred Stock called as hereinafter
provided. Whenever all arrears in dividends on the Series C Preferred Stock
and the Voting Preferred Stock then outstanding shall have been paid and
dividends thereon for the current quarterly dividend period shall have been
paid or declared and set apart for payment, then the right of the holders of
the Series C Preferred Stock and the Voting Preferred Stock to elect such
additional two directors shall cease (but subject always to the same
provision for the vesting of such voting rights in the case of any similar
future arrearages in six quarterly dividends), and the terms of office of all
persons elected as directors by the holders of the Series C Preferred Stock
and the Voting Preferred Stock shall forthwith terminate and the number of
the Board of Directors shall be reduced accordingly. At any time after such
voting power shall have been so vested in the holders of shares of Series C
Preferred Stock and the Voting Preferred Stock, the secretary of the
Corporation may, and upon the written request of any holder of Series C
Preferred Stock (addressed to the secretary at the principal office of the
corporation) shall, call a special meeting of the holders of the Series C
Preferred Stock and of the Voting Preferred Stock for the election of the two
directors to be elected by them as herein provided, such call to be made by
notice similar to that provided in the Bylaws of the Corporation for a
special meeting of the stockholders or as required by law. If any such
special meeting required to be called as above provided shall not be called
by the secretary within 20 days after receipt of any such request, then any
holder of shares of Series C Preferred Stock may call such meeting, upon the
notice above provided, and for that purpose shall have access to the stock
books of the Corporation. The directors elected at any such special meeting
shall hold office until the next annual meeting of the stockholders or
special meeting held in lieu thereof if such office shall not have previously
terminated as above provided. If any vacancy shall occur among the directors
elected by the holders of the Series C Preferred Stock and the Voting
Preferred Stock, a successor shall be elected by the Board of Directors, upon
the nomination of the then-remaining director elected by the holders of the
Series C Preferred Stock and the Voting Preferred Stock or the successor of
such remaining director, to serve until the next annual meeting of the
stockholders or special meeting held in place thereof if such office shall
not have previously terminated as provided above.
So long as any shares of Series C Preferred Stock are outstanding, in
addition to any other vote or consent of stockholders required by law or by
the Articles of Incorporation, as amended, the affirmative vote of at least
66 2/3% of the votes entitled to be cast by the holders of the shares of
Series C Preferred Stock and the Voting Preferred Stock, at the time
outstanding, acting as a single class regardless of series, given in person
or by proxy, either in writing without a meeting or by vote at any meeting
called for the purpose, shall be necessary for effecting or validating:
(a) Any amendment, alteration or repeal of any of the provisions of the
Amendment to the Articles of Incorporation that materially adversely affects
the voting powers, rights or preferences of the holders of the Series C
Preferred Stock or the Voting Preferred Stock; PROVIDED, HOWEVER, that the
amendment of the provisions of the Articles of Incorporation so as to
authorize or create, or to increase the authorized amount of, any Junior
Stock or any shares of any class ranking on a parity with the Series C
Preferred Stock or the Voting Preferred Stock shall not be deemed to
materially adversely affect the voting powers, rights or preferences of the
holders of Series C Preferred Stock, and PROVIDED FURTHER, that if any such
amendment, alteration or repeal would materially adversely affect any voting
powers, rights or preferences of the Series C Preferred Stock or another
series of Voting Preferred Stock that are not enjoyed by some or all of the
other series which otherwise would be entitled to vote in accordance
herewith, the affirmative vote of at least 66 2/3% of the votes entitled to
be cast by the holders of all series similarly affected, similarly given,
shall be required in lieu of the affirmative vote of at least 66 2/3% of the
votes entitled to be cast by the holders of the shares of Series C Preferred
Stock and the Voting Preferred Stock which otherwise would be entitled to
vote in accordance herewith; or
(b) The authorization or creation of, or the increase in the authorized
amount of, any shares of any class or any security convertible into shares of
any class ranking prior to the Series C Preferred Stock in the distribution
of assets on any liquidation, dissolution or winding up of the Corporation or
in the payment of dividends; PROVIDED, HOWEVER, that no such vote of the
holders of Series C Preferred Stock shall be required if, at or prior to the
time when such amendment, alteration or repeal is to take effect, or when the
issuance of any such prior shares or convertible security is to be made, as
the case may be, provision is made for the redemption of all shares of Series
C Preferred Stock at the time outstanding.
For purposes of the foregoing provisions of this Section 9, each share
of Series C Preferred Stock shall have one (1) vote per share, except that
when any other series of preferred stock shall have the right to vote with
the Series C Preferred Stock as a single class on any matter, then the Series
A Preferred Stock and such other series shall have with respect to such
matters one (1) vote per $25.00 of stated liquidation preference. Except as
otherwise required by applicable law or as set forth herein, the shares of
Series C Preferred Stock shall not have any relative, participating, optional
or other special voting rights and powers other than as set forth herein, and
the consent of the holders thereof shall not be required for the taking of
any corporate action.
Section 10. RECORD HOLDERS. The Corporation and the Transfer Agent
may deem and treat the record holder of any shares of Series C Preferred
Stock as the true and lawful owner thereof for all purposes, and neither the
Corporation nor the Transfer Agent shall be affected by any notice to the
contrary.
IN WITNESS WHEREOF, the Corporation has caused these Articles of
Amendment to Articles of Incorporation to be made under the seal of the
Corporation and signed in its name and attested by its duly authorized
officers this 7th day of March, 1995.
Merry Land & Investment
Company, Inc.
By: /s/ Dorris E. Green
-----------------------
As Its Vice President
Attest: /s/ John W. Gibson
-----------------------
John W. Gibson
Assistant Secretary
(Corporate Seal)
<PAGE>
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[NUMBER] [SHARES]
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| PC | {Picture of Woman | |
[----------] Holding Globe} [----------]
SERIES C CUMULATIVE NO PAR VALUE
CONVERTIBLE PREFERRED STOCK CUSIP 590438 50 3
This Certificate is See Reverse for
Transferable in New York, Certain Definitions
New York and in Charlotte,
North Carolina
MERRY LAND & INVESTMENT COMPANY, INC.
Incorporated Under the Laws of the State of Georgia
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| |
| This certifies that |
| |
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| |
| |
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| is the |
| owner of |
| |
[-------------------------------------------------------------------------]
Fully Paid and Non-Assessable Shares of the
Series C Cumulative Convertible Preferred Stock of
Merry Land & Investment Company, Inc. transferable in person or by duly
authorized attorney, upon surrender of this Certificate, properly endorsed.
This Certificate is not valid until countersigned and registered by the
Transfer Agent and Registrar
CERTIFICATE OF STOCK
Witness, the facsimile seal of the Corporation and the facsimile signatures
of the duly authorized officers.
Dated {SEAL}
Merry Land & Investment
Company, Inc.
W. Hale Barrett Corporate Seal W. Tennent Houston
Secretary 1966 President
Georgia
{SEAL}
{Printed sideways on bottom right of Certificate:}
Countersigned and Registered:
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
(Charlotte, North Carolina) Transfer Agent
By and Registrar
Authorized Signature
{End of sideways printing.}
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<PAGE>
MERRY LAND & INVESTMENT COMPANY, INC.
THE CORPORATION WILL FURNISH TO ANY SHAREHOLDER, UPON REQUEST AND
WITHOUT CAUSE, A FULL STATEMENT OF THE DESIGNATIONS, RELATIVE RIGHTS,
PREFERENCES, RESTRICTIONS ON TRANSFER AND LIMITATIONS OF THE SHARES OF EACH
CLASS AND SERIES AUTHORIZED TO BE ISSUED AND THE VARIATIONS IN THE RELATIVE
RIGHTS AND PREFERENCES BETWEEN THE SHARES OF EACH SERIES OF PREFERRED STOCK
SO FAR AS THE SAME HAVE BEEN FIXED AND DETERMINED.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM -- as tenants in common
UNIF GIFT MIN ACT -- __________ Custodian __________
(Qual) (Minor)
under Uniform Gifts to Minors Act _______________
(State)
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of survivorship
and not as tenants in common
Additional abbreviations may also be used though not in the above list.
For value received, _____ hereby sell, assign and transfer unto
Please Insert Social
Security Number of
Assignee
[--------------------]
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[--------------------]-------------------------------------------
- -----------------------------------------------------------------
Please Print or Typewrite Name and Address Including
Postal Zip Code of Assignee
_________________________________________________________________
_________________________________________________________________
__________________________________________________________ Shares
of the Series C Cumulative Convertible Preferred Stock
represented by the within Certificate, and do hereby irrevocably
constitute and appoint _________________________________ Attorney
to transfer the said stock on the books of the within-named
Corporation with full power of substitution in the premises.
Dated, ____________________
__________________________________________________
NOTICE: The Signature to this Assignment must Correspond
with the Name as Written upon the Face of the
Certificate in Every Particular, Without
Alteration or Enlargement, or Any Change Whatever.
SIGNATURE(S) GUARANTEED: ___________________________________
THE SIGNATURE(S) SHOULD BE
GUARANTEED BY AN ELIGIBLE GUARANTOR
INSTITUTION (BANKS, STOCKBROKERS,
SAVINGS AND LOAN ASSOCIATIONS AND
CREDIT UNIONS WITH MEMBERSHIP IN AN
APPROVED SIGNATURE GUARANTEE
MEDALLION PROGRAM), PURSUANT TO
S.E.C. RULE 17Ad-15.
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN,
MUTILATED OR DESTROYED, THE CORPORATION WILL REQUIRE A BOND OF
INDEMNITY AS A CONDITION TO THE ISSUANCE OF A REPLACEMENT
CERTIFICATE.
