SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K/A
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
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Date of Report (Date of earliest event reported): November 1, 1994
MERRY LAND & INVESTMENT COMPANY, INC.
(Exact name of registrant as specified in its charter)
Georgia 0-10384
(State or other jurisdiction of incorporation) (Commission File Number)
58-0961876
(I.R.S. Employer I.D. Number)
624 Ellis Street, Augusta, GA 30901
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 706/722-6756
____________________________________________________________
(Former name or former address, if changed since last report)
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ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND
EXHIBITS. The undersigned registrant hereby amends its current Report on
Form 8-K (date of event reported: November 1, 1994; date filed: November 3,
1994) by filing the following described exhibit as set forth in the pages
attached hereto:
Articles of Amendment to Articles of Incorporation of Merry Land
& Investment Company, Inc. (the "Company") with respect to the
Company's $2.205 Series B Cumulative Convertible Preferred Stock,
described in the Company's current report on Form 8-K filed on
November 3, 1994.
Pursuant to the requirements of the Securities and Exchange Act of
1934, the registrant has duly caused this amendment to be signed on its
behalf by the undersigned hereunto duly authorized.
MERRY LAND & INVESTMENT
COMPANY, INC.
By: /S/
-------------------------
W. Tennent Houston
Filed: January 24, 1995 As Its President
<PAGE>
ARTICLES OF AMENDMENT TO
ARTICLES OF INCORPORATION OF
MERRY LAND & INVESTMENT COMPANY, INC.
--------------------------------------
RE: SERIES B 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 October 31, 1994.
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 issued and
sold such Series A Preferred Stock.
SECOND: The Board of Directors has now 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 and provided
for the issuance of such Series B Preferred Stock.
THIRD: The terms of the Series B 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 B Cumulative Convertible
Preferred Stock (the "Series B Preferred Stock") and 4,000,000 shall be the
number of shares of Preferred Stock constituting such series.
Section 2. DEFINITIONS. For purposes of the Series B Preferred
Stock, the following terms shall have the meanings indicated:
"Act" shall mean the Securities Act of 1933, as amended.
"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 B Preferred Stock.
"Business Day" shall mean any day other than a Saturday,
Sunday or a day on which state or federally chartered
banking institutions in New York, New York are not
required to be open.
"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, or such shares of capital
stock into which such shares of Common Stock shall be
reclassified.
"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 B Preferred
Stock is convertible, as such Conversion Price may be
adjusted pursuant to Section 7. The initial conversion
price shall be $21.04 (equivalent to a conversion rate of
1.188 shares of Common Stock for each share of Series B
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 or if the shares of any class
of securities are not publicly traded, the fair value of
the shares of such class as determined reasonably and in
good faith by the Board of Directors of the Corporation.
"Dividend Payment Date" shall mean the last calendar day
of March, June, September and December, in each year,
commencing on December 31, 1994; 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
December 31, 1994).
"Fair Market Value" shall mean the average of the daily
Current Market Prices of a share of Common Stock during
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 November 1, 1994.
"Junior Stock" shall mean the Common Stock and any other
class or series of shares of the Corporation over which
the Series A Preferred Stock and the Series B 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, 1993
not in excess of the Company's cumulative undistributed
net earnings at December 31, 1993, 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, 1993, minus the cumulative amount of
dividends accrued or paid on the Series A Preferred
Stock, the Series B Preferred Stock or any other class of
Parity 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 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 Parity Stock are placed in a separate
account of the Corporation or delivered to a disbursing,
paying or other similar agent, then "set apart for
payment" with respect to the Series B Preferred Stock
shall mean placing such funds in a separate account or
delivering such funds to a disbursing, paying or other
similar agent.
"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 U.S. bank with
aggregate capital, surplus and undivided profits, as
shown on its last published report, of at least
$50,000,000 as may be designated by the Board of
Directors or their designee as the transfer agent for the
Series B 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 B 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 at the rate
per annum of $2.205 per share of Series B Preferred Stock. 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 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 B Preferred Stock, as they appear on
the stock records of the Corporation at the close of business on
such record dates, which shall be not more than 60 days preceding
such Dividend Payment Dates thereof, as shall be fixed by the Board
of Directors, which record dates shall coincide with the record
dates for the regular 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, which date shall not precede by more than 45 days 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 B Preferred Stock shall be computed by
dividing the annual dividend rate by four. The amount of dividends
payable for the initial Dividend Period, or any other period
shorter or longer than a full Dividend Period, on the Series B
Preferred Stock shall be computed ratably on the basis of twelve
30-day months and a 360-day year. Holders of shares of Series B
Preferred Stock shall not be entitled to any dividends, whether
payable in cash, property or stock, in excess of cumulative
dividends, as herein provided, on the Series B Preferred Stock. No
interest, or sum of money in lieu of interest, shall be payable in
respect of any dividend payment or payments on the Series B
Preferred Stock that may be in arrears.
(c) So long as any shares of the Series B Preferred Stock are
outstanding, no dividends, except as described in the immediately
following sentence, shall be declared or paid or set apart for
payment by the Company or other distribution of cash or other
property declared or made directly or indirectly by the Company or
any affiliate or any person acting on behalf of the Company or any
of its affiliates with respect to 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 B 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 B 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 B
Preferred Stock and accumulated and unpaid on such Parity Stock.
(d) So long as any shares of the Series B Preferred Stock are
outstanding, no dividends (other than dividends or distributions
paid in shares of Junior Stock), shall be declared or paid or set
apart for payment by the Company or other distribution of cash or
other property declared or made directly or indirectly by the
Company or any affiliate or any person acting on behalf of the
Company or any of its affiliates with respect to 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)
directly or indirectly by the Company or any affiliate or any
person acting on behalf of the Company or any of its affiliates
(except by conversion into or exchange for Junior Stock), nor shall
any other cash or other property otherwise be paid or distributed
to or for the benefit of any holder of Junior Stock in respect
thereof, directly or indirectly, by the Company or any affiliate or
any person acting on behalf of the Company or any of its affiliates
unless in each case (i) the full cumulative dividends on all
outstanding shares of the Series B 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 B 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 B 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 B Preferred Stock shall
be entitled to receive Twenty-five Dollars ($25.00) per share of
Series B Preferred Stock plus an amount equal to all dividends
(whether or not earned or declared) accrued and unpaid thereon to
the date of final distribution to such holders; but such holders
shall not be entitled to any 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 B 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 B Preferred Stock
and any such other Parity Stock ratably in accordance with the
respective amounts that would be payable on such shares of Series
B 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
Parity Stock, upon any liquidation, dissolution or winding up of
the Corporation, after payment shall have been made in full to the
holders of the Series B Preferred Stock and any Parity Stock, as
provided in this Section 4, any other series or class or classes of
Junior Stock shall, subject to the respective terms thereof, be
entitled to receive any and all assets remaining to be paid or
distributed, and the holders of the Series B Preferred Stock and
any Parity Stock shall not be entitled to share therein.
Section 5. REDEMPTION AT THE OPTION OF THE CORPORATION.
(a) The Series B Preferred Stock shall not be redeemable by the
Corporation prior to October 31, 1999. On and after October 31,
1999, the Corporation, at its option, may redeem the shares of
Series B Preferred Stock in whole or in part, as set forth herein,
subject to the provisions described below.
(b) The Series B 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
October 1, 1999. The Press Release shall announce the redemption
and set forth the number of shares of Series B Preferred Stock
which the Corporation intends to redeem.
(c) Upon redemption of Series B 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 B 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 B Preferred Stock being redeemed divided by the
Conversion Price as in effect as of the opening of business on the
Call Date. 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.
Upon any redemption of Series B 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 B 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 B Preferred Stock called for
redemption or on the shares of Common Stock issued upon such
redemption.
(d) If full cumulative dividends on the Series B 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 B Preferred Stock may not be redeemed in part
and the Corporation or any subsidiary may not purchase or acquire
shares of Series B Preferred Stock, otherwise than pursuant to a
purchase or exchange offer made on the same terms to all holders of
shares of Series B Preferred Stock.
(e) If the Corporation shall redeem shares of Series B
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 B 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 B Preferred Stock to be redeemed
and, if fewer than all such 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 B 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 issue and 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 B Preferred Stock so called for redemption shall cease to
accrue, (ii) said shares shall no longer be deemed to be
outstanding, and (iii) all rights of the holders thereof as holders
of Series B 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, The 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 such amount of cash as is
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 B Preferred Stock so
called for redemption. At the close of business on the Call Date,
each holder of Series B 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 B Preferred Stock is to be redeemed, regardless of whether
such holder has surrendered the certificates representing the
Series B Preferred Stock. No interest shall accrue for the benefit
of the holders of Series B 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 certificates 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 B Preferred Stock are to redeemed, shares to be
redeemed shall be selected by the Corporation from outstanding
shares of Series B Preferred Stock not previously called for
redemption by lot or pro rata (as nearly as may be). If fewer than
all the shares of Series B Preferred Stock represented by any
certificate are redeemed, then new certificates representing the
unredeemed shares shall be issued without cost to the holders
thereof.
(f) No fractional shares or scrip representing fractions of
shares of Common Stock shall be issued upon redemption of the
Series B 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 B 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 B Preferred Stock so
surrendered.
(g) The Corporation covenants that any shares of Common Stock
issued upon redemption of the Series B 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 B 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 B Preferred Stock are transferable and not subject to any
resale restrictions under the Act, or any applicable state
securities or blue sky laws except the provisions of Rule 144 under
the Act.
Section 6. SHARES TO BE RETIRED.
All shares of Series B 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.
Section 7. CONVERSION.
Shares of Series B Preferred Stock shall not be convertible
prior to April 30, 1995. On or after such date holders of shares
of Series B Preferred Stock shall have the right to convert all or
a portion of such shares into authorized but unissued 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 B 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 of Series
B Preferred Stock 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 B 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 B 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 B
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 B 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. 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 B Preferred Stock as aforesaid, the
Corporation shall issue and shall deliver at such office to such
holder, or send 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 B 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.
(c) No fractional shares or scrip representing fractions of
shares of Common Stock shall be issued upon conversion of the
Series B 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 B 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 B 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 B
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 B Preferred Stock been converted immediately prior to the
record date in the case of a dividend or distribution or the
effective date in the case of a subdivision, 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 described below in this subparagraph 7(d)(ii)) 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 in good faith
by 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 Board of Directors, whose determination shall be conclusive
and described in a Board resolution), 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 B 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 B Preferred Stock would no longer be
entitled to receive such Security with a share of Common Stock
(other than as a result of the termination of all such Securities),
a distribution of such Securities shall be deemed to have occurred
and the Conversion Price shall be adjusted as provided in this
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 a substantial portion
of its 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 B Preferred Stock which
is not converted into the right to receive stock, securities or
other property in connection with such Transaction shall thereupon
be convertible into the kind and amount of shares of stock,
securities and other property (including cash or any combination
thereof) receivable upon such consummation by a holder of that
number of shares of Common Stock into which one share of Series B
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 B
Preferred Stock that will contain provisions enabling the holders
of the Series B 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 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 a substantial portion
of its outstanding shares of Common Stock (or an amendment thereto
changing the maximum number of shares sought or the amount or type
of consideration being offered therefor) 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 B 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 record date for the payment of such
dividend, distribution or rights or warrants, or, if a record date
is not established, 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 or (C) the date on which
such tender offer commenced, the date on which such tender offer is
scheduled to expire unless extended, the consideration offered and
the other material terms thereof (or the material terms of any
amendment thereto). 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 B 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 B 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
B Preferred Stock, the Conversion Price for the Series B 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 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, solely for the
purpose of effecting conversion of the Series B Preferred Stock,
the full number of shares of Common Stock deliverable upon the
conversion of all outstanding shares of Series B Preferred Stock
not theretofore converted into shares of Common Stock. 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 B 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 B 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 B
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 B
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 and to take
action necessary to insure that any shares of Common Stock issued
upon conversion of the Series B Preferred Stock are transferable
under the provisions of Rule 144A, Regulation S and Rule 144 of the
Act and any applicable state securities or blue sky laws.
(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 B 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 B 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 B 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 B
Preferred Stock;
(b) on a parity with the Series B 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 B Preferred
Stock, if the holders of such class of stock or series and the
Series B 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 shall be Parity
Stock with respect to the Series B Preferred Stock; and
(c) junior to the Series B 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 B 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 B
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 B 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 B Preferred Stock and the Voting Preferred Stock called
as hereinafter provided. Whenever all arrears in dividends on the
Series B 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 B 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 B 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 B Preferred Stock and the Voting Preferred Stock, the
secretary of the Corporation may, and upon the written request of
any holder of Series B Preferred Stock (addressed to the secretary
at the principal office of the corporation) shall, call a special
meeting of the holders of the Series B 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 B 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 B
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 B
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 B 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 B
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, the
Articles of Incorporation or the By-Laws of the Corporation that
materially adversely affects the voting powers, rights or
preferences of the holders of the Series B 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 B 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 B 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 B 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 B 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 B
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 B 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 B Preferred Stock at the
time outstanding.
For purposes of the foregoing provisions of this Section 9,
each share of Series B 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 B Preferred Stock as a
single class on any matter, then the Series B 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 B 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 B 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 31st day of October, 1994.
=================================
Signature Block on Following Page
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<PAGE>
This 31st day of October, 1994.
MERRY LAND & INVESTMENT
COMPANY, INC.
By:___________________________
As Its President
Attest:_______________________
As Its Assistant Secretary
(Corporate Seal)
