SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-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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$___.___ ___ 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: February 28, 1995
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ITEM 1. DESCRIPTION OF SECURITIES TO BE REGISTERED
A full description of the Registrant's $___.___ ___ Series C
Cumulative Convertible Preferred Stock, without par value, $25.00
liquidation preference, is contained in a Rule 424(b) Preliminary
Prospectus Supplement filed on February 14, 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. Proposed form of Certificate for the $___.___ ___ Series C
Cumulative Convertible Preferred Stock, without par value, $25.00
liquidation preference.
B. Proposed form of Articles of Amendment for the $___.___ ___
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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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: February 28, 1995 By: /S/
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W. Tennent Houston
As Its President
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EXHIBIT "A"
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[NUMBER] [SHARES]
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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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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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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.
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EXHIBIT "B"
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Articles of Amendment to
Articles of Incorporation of
MERRY LAND & INVESTMENT COMPANY, INC.
RE: SERIES C CUMULATIVE CONVERTIBLE PREFERRED STOCK
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 ___________ ___, 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 $_____
(equivalent to a conversion rate of ______ 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 April 1, 1995 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 the date on which the Corporation first
issues a share of Series C Preferred Stock.
"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 the date of this Amendment to the
Articles.
"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 $_______ per annum or the cash dividends
(determined on each Dividend Payment Date) on the number of shares of
Common Stock, or portion thereof, into which a share of Series C Preferred
Stock is convertible (under Section 7 hereof). Such dividends shall be
cumulative from the April 1, 1995, 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 the first Dividend Payment Date after the Issue Date. 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. 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) 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.
<PAGE>
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 ______ day of ________________, 1995.
This _____ day of _____________, 1995.
Merry Land & Investment
Company, Inc.
By:
-----------------------
W. Tennent Houston
President
Attest:
-----------------------
John W. Gibson
Assistant Secretary
(Corporate Seal)
