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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
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MEDIQ INCORPORATED
(Exact name of registrant as specified in its charter)
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Delaware 51-0219413
(State of incorporation or organization) (I.R.S. Employer Identification Number)
One MEDIQ Plaza 08110
Pennsauken, New Jersey (Zip Code)
(Address of principal executive offices)
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Securities to be registered pursuant to Section 12(b) of the Act:
None None
(Title of Class) (Name of Exchange)
If this Form relates to the registration of a class of securities
pursuant to Section 12(b) of the Exchange Act and is effective pursuant to
General Instruction A.(c), check the following box. / /
If this Form relates to the registration of a class of securities
pursuant to Section 12(g) of the Exchange Act and is effective pursuant to
General Instruction A.(d), check the following box. /X/
Securities Act registration statement file number to which this form
relates: 333-46233
Securities to be registered pursuant to Section 12(g) of the Act:
Series A Preferred Stock, par value $0.01 per share
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(Title of Class)
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Item 1. Description of Securities to be Registered
A description of the Registrant's Series A Preferred Stock is set forth
under the caption "DESCRIPTION OF MEDIQ CAPITAL STOCK FOLLOWING THE MERGER -
Series A Preferred Stock" contained in the Proxy Statement/Prospectus included
in the Registrant's Registration Statement on Form S-4 (File No. 333-46233)
declared effective on April 28, 1998 (the "Form S-4 Registration Statement").
The Form S-4 Registration Statement, filed with the Securities and Exchange
Commission pursuant to the Securities Act of 1933, as amended, is incorporated
herein by reference.
Item 2. Exhibits
3.1 Form of Certificate of Incorporation of MEDIQ Incorporated.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, as amended, the Registrant has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereto duly
authorized.
Dated: May 28, 1998 MEDIQ INCORPORATED
By: /s/ Jay M. Kaplan
Jay M. Kaplan, Vice President
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Exhibit 3.1
CERTIFICATE OF INCORPORATION
OF
MEDIQ INCORPORATED
1. Name. The name of the Corporation is MEDIQ Incorporated.
2. Registered Office and Agent. The address of the Corporation's registered
office in the State of Delaware is 1209 Orange Street, Wilmington, Delaware
19801, in the County of New Castle. The name of the Corporation's registered
agent at such address is The Corporation Trust Company.
3. Purpose. The purposes for which the Corporation is formed are to engage
in any lawful act or activity for which corporations may be organized under the
General Corporation Law of Delaware and to possess and exercise all of the
powers and privileges granted by such law and any other law of Delaware.
4. Authorized Capital.
A. The aggregate number of shares of stock which the Corporation shall
have authority to issue is 70,000,000 shares, divided into two (2) classes
consisting of 40,000,000 shares of Preferred Stock, par value $0.01 per share
("Preferred Stock"); and 30,000,000 shares of Common Stock, par value $0.01 per
share ("Common Stock").
B. The following is a statement of the designations, preferences,
qualifications, limitations, restrictions and the special or relative rights
granted to or imposed upon the shares of each such class:
i. Issue in Series. Preferred Stock may be issued from time to
time in one or more series, each such series to have the terms stated herein and
in the resolution of the Board of Directors of the Corporation providing for its
issue. All shares of any one series of Preferred Stock will be identical, but
shares of different series of Preferred Stock need not be identical or rank
equally except insofar as provided by law or herein.
ii. Creation of Series. The Board of Directors will have
authority by resolution to cause to be created one or more series of Preferred
Stock, and to determine and fix with respect to each series prior to the
issuance of any shares of the series to which such resolution relates:
a. The distinctive designation of the series and the
number of shares which will constitute the series,
which number may be increased or decreased (but not
below the number of shares then outstanding) from time
to time by action of the Board of Directors;
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b. The dividend rate and the times of payment of dividends
on the shares of the series, whether dividends will be
cumulative, and if so, from what date or dates;
c. The price or prices at which, and the terms and
conditions on which, the shares of the series may be
redeemed at the option of the Corporation;
d. Whether or not the shares of the series will be
entitled to the benefit of a retirement or sinking fund
to be applied to the purchase or redemption of such
shares and, if so entitled, the amount of such fund and
the terms and provisions relative to the operation
thereof;
e. Whether or not the shares of the series will be
convertible into, or exchangeable for, any other shares
of stock of the Corporation or other securities, and if
so convertible or exchangeable, the conversion price or
prices, or the rates of exchange, and any adjustments
thereof, at which such conversion or exchange may be
made, and any other terms and conditions of such
conversion or exchange;
f. The rights of the shares of the series in the event of
voluntary or involuntary liquidation, dissolution or
winding up of the Corporation;
g. Whether or not the shares of the series will have
priority over or be on a parity with or be junior to
the shares of any other series or class in any respect
or will be entitled to the benefit of limitations
restricting the issuance of shares of any other series
or class having priority over or being on a parity with
the shares of such series in any respect, or
restricting the payment of dividends on or the making
of other distributions in respect of shares of any
other series or class ranking junior to the shares of
the series as to dividends or assets, or restricting
the purchase or redemption of the shares of any such
junior series or class, and the terms of any such
restriction;
h. Whether the series will have voting rights, in addition
to any voting rights provided by law, and, if so, the
terms of such voting rights; and
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i. Any other preferences, qualifications, privileges,
options and other relative or special rights and
limitations of that series.
iii. Dividends. Holders of Preferred Stock shall be entitled to
receive, when and as declared by the Board of Directors, out of funds legally
available for the payment thereof, dividends at the rates fixed by the Board of
Directors for the respective series, and no more, before any dividends shall be
declared and paid, or set apart for payment, on Common Stock with respect to the
same dividend period.
iv. Preference on Liquidation. In the event of the voluntary or
involuntary liquidation, dissolution or winding up of the Corporation, holders
of each series of Preferred Stock will be entitled to receive the amount fixed
for such series plus, in the case of any series on which dividends will have
been determined by the Board of Directors to be cumulative, an amount equal to
all dividends accumulated and unpaid thereon to the date of final distribution
whether or not earned or declared before any distribution shall be paid, or set
aside for payment, to holders of Common Stock. If the assets of the Corporation
are not sufficient to pay such amounts in full, holders of all shares of
Preferred Stock will participate in the distribution of assets ratably in
proportion to the full amounts to which they are entitled or in such order or
priority, if any, as will have been fixed in the resolution or resolutions
providing for the issue of the series of Preferred Stock. Neither the merger nor
consolidation of the Corporation into or with any other corporation, nor a sale,
transfer or lease of all or part of its assets, will be deemed a liquidation,
dissolution or winding up of the corporation within the meaning of this
paragraph except to the extent specifically provided for herein.
v. Redemption. The Corporation, at the option of the Board of
Directors, may redeem all or part of the shares of any series of Preferred Stock
on the terms and conditions fixed for such series.
vi. Voting Rights. Except as otherwise required by law, as
otherwise provided herein or as otherwise determined by the Board of Directors
as to the shares of any series of Preferred Stock prior to the issuance of any
such shares, the holders of Preferred Stock shall have no voting rights and
shall not be entitled to any notice of meeting of stockholders.
C. Series A Preferred Stock.
i. Designation of Series. There shall be 10,000,000 shares of
Preferred Stock designated as "Series A 13.0% Cumulative Compounding Preferred
Stock" ("Series A Preferred Stock"). The par value of Series A Preferred Stock
shall be $.01 per share.
ii. Rank. With respect to dividend rights and rights on
liquidation, winding up and dissolution of the Corporation, Series A Preferred
Stock shall rank (a) senior to the Common Stock of the Corporation, par value
$.01 per share ("Common Stock"), the Series B Preferred Stock (defined in
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paragraph 4.C.xii. below), the Series C Preferred Stock (defined in paragraph
4.C.xii. below), and each other class of capital stock or class or series of
preferred stock issued by the Corporation after the date hereof the terms of
which specifically provide that such class or series shall rank junior to the
Series A Preferred Stock as to dividend distributions or distributions upon the
liquidation, winding up and dissolution of the Corporation (collectively
referred to as "Series A Junior Securities"), (b) on a parity with each other
class of capital stock or class or series of preferred stock issued by the
Corporation after the date hereof the terms of which do not specifically provide
that they rank junior to Series A Preferred Stock or senior to Series A
Preferred Stock as to dividend distributions or distributions upon liquidation,
winding up and dissolution of the Corporation (collectively referred to as "
Series A Parity Securities"), and (c) junior to each other class of capital
stock or other class or series of preferred stock issued by the Corporation that
by its terms is senior to the Series A Preferred Stock with respect to dividend
distributions or distributions upon the liquidation, winding up and dissolution
of the Corporation (collectively referred to as "Series A Senior Securities").
iii. Dividends.
a. Each Holder of Series A Preferred Stock shall be
entitled to receive, when, as and if declared by the
Board of Directors, out of funds legally available
therefor, cash dividends on each share of Series A
Preferred Stock at a rate equal to $1.30 per share per
annum. All dividends shall be cumulative, whether or
not earned or declared, and shall accrue on a daily
basis from the date of issuance of Series A Preferred
Stock, and shall be payable semi-annually in arrears on
each Dividend Payment Date, commencing on the second
Dividend Payment Date after the date of issuance of
such Series A Preferred Stock. Each dividend on Series
A Preferred Stock shall be payable to the Holders of
record of Series A Preferred Stock as they appear on
the stock register of the Corporation on such record
date as may be fixed by the Board of Directors, which
record date shall not be less than 10 nor more than 60
days prior to the applicable Dividend Payment Date.
Dividends shall cease to accrue in respect of shares of
Series A Preferred Stock on the date of their
repurchase by the Corporation unless the Corporation
shall have failed to pay the relevant repurchase price
on the date fixed for repurchase. Notwithstanding
anything to the contrary set forth above, unless and
until such dividends are declared by the Board of
Directors, there shall be no obligation to pay such
dividends; provided, that such dividends shall
continue to cumulate and shall be added to the
Liquidation Preference (as provided in Paragraph
4.C.iv.a. below) at the time of repurchase as provided
herein if not earlier declared and paid. Accrued
dividends on the
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Series A Preferred Stock if not paid on the first or
any subsequent Dividend Payment Date following accrual
shall thereafter accrue additional dividends
("Additional Dividends") in respect thereof, compounded
annually, at the rate of 13.0% per annum.
b. All dividends paid with respect to shares of Series A
Preferred Stock pursuant to paragraph 4.C.iii.a. shall
be paid pro rata to the Holders entitled thereto.
c. Dividends on account of arrears for any past Dividend
Period and dividends in connection with any optional
redemption pursuant to paragraph 4.C.v.a. may be
declared and paid at any time, without reference to any
regular Dividend Payment Date, to the Holders of record
on any date as may be fixed by the Board of Directors,
which date is not more than 60 days prior to the
payment of such dividends.
d. As long as any Series A Preferred Stock is outstanding,
no dividends shall be declared by the Board of
Directors or paid or funds set apart for the payment of
dividends or other distributions on any Series A Parity
Securities for any period, and no Series A Parity
Securities may be repurchased, redeemed or otherwise
acquired, nor may funds be set apart for such payment
(other than dividends, other distributions,
redemptions, repurchases or acquisitions payable in
Series A Junior Securities and cash in lieu of
fractional shares of such Series A Junior Securities in
connection therewith), unless (i) full Accumulated
Dividends have been paid or set apart for such payment
on the Series A Preferred Stock and Series A Parity
Securities for all Dividend Periods terminating on or
prior to the date of payment of such dividends or
distributions on, or such repurchase or redemption of,
such Series A Parity Securities (the "Series A Parity
Payment Date") and (ii) any such dividends are
declared and paid pro rata so that the amounts of any
dividends declared and paid per share on outstanding
Series A Preferred Stock and each other share of
Series A Parity Securities will in all cases bear to
each other the same ratio that accrued and unpaid
dividends (including any Accumulated Dividends) per
share of outstanding Series A Preferred Stock and such
other outstanding shares of Series A Parity Securities
bear to each other.
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e. The Holders shall be entitled to receive the dividends
provided for in paragraph 4.C.iii.a. hereof in
preference to and in priority over any dividends upon
any of the Series A Junior Securities. Such dividends
on the Series A Preferred Stock shall be cumulative,
whether or not earned or declared, so that if at any
time full Accumulated Dividends on all shares of Series
A Preferred Stock then outstanding for all Dividend
Periods then elapsed have not been paid or set aside
for payment, the amount of such unpaid dividends shall
be paid before any sum shall be set aside for or
applied by the Corporation to the purchase, redemption
or other acquisition for value of any shares of Series
A Junior Securities (either pursuant to any applicable
sinking fund requirement or otherwise) or any dividend
or other distribution shall be paid or declared or set
apart for payment on any Series A Junior Securities
(the date of any such actions to be referred to as the
"Series A Junior Payment Date"); provided, however,
that the foregoing shall not (i) prohibit the
Corporation from repurchasing shares of Series A Junior
Securities from a holder thereof who is, or was, a
director or employee of the Corporation (or an
affiliate of the Corporation) and (ii) prohibit the
Corporation from making dividends, other distributions,
redemptions, repurchases or acquisitions in respect of
Series A Junior Securities payable in Series A Junior
Securities and cash in lieu of fractional shares of
such Series A Junior Securities in connection
therewith.
f. Dividends payable on Series A Preferred Stock for any
period less than one year shall be computed on the
basis of a 360-day year consisting of twelve 30-day
months and the actual number of days elapsed in the
period for which such dividends are payable.
iv. Liquidation Preference.
a. Upon any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the
Holders of all shares of Series A Preferred Stock then
outstanding shall be entitled to be paid out of the
assets of the Corporation available for distribution to
its stockholders an amount in cash equal to $10.00 per
share, plus an amount equal to full cumulative
dividends (whether or not earned or declared) accrued
and unpaid thereon, including Additional
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Dividends, to the date of final distribution (the
"Liquidation Preference") and no more, before any
distribution is made on any Series A Junior Securities.
If upon any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the
application of all amounts available for payments with
respect to Series A Preferred Stock and all other
Series A Parity Securities would not result in payment
in full of Series A Preferred Stock and such other
Series A Parity Securities, the Holders and holders of
Series A Parity Securities shall share equally and
ratably in any distribution of assets of the
Corporation in proportion to the full liquidation
preference to which each is entitled. After payment in
full pursuant to this paragraph 4.C.iv.a., the Holders
shall not be entitled to any further participation in
any distribution in the event of liquidation,
dissolution or winding up of the affairs of the
Corporation.
b. For the purposes of this paragraph 4.C.iv., neither the
voluntary sale, conveyance, exchange or transfer (for
cash, shares of stock, securities or other
consideration) of all or substantially all of the
property or assets of the Corporation nor the
consolidation, merger or other business combination of
the Corporation with one or more corporations (whether
or not the Corporation is the surviving corporation)
shall be deemed to be a voluntary or involuntary
liquidation, dissolution or winding up of the
Corporation.
v. Redemption.
a. Optional Redemption.
(1) The Corporation may, at its option, redeem at any
time or from time to time, from any source of
funds legally available therefor, in whole or in
part, in the manner provided in paragraph 4.C.v.c.
hereof, any or all of the shares of Series A
Preferred Stock, at a redemption prices set forth
below, plus an amount equal to full cumulative
dividends (whether or not earned or declared)
accrued and unpaid thereon, including Additional
Dividends, to the Redemption Date (as defined in
paragraph 4.C.xii.). The redemption price for
redemptions pursuant to this paragraph 4.C.v.a.
are as follows:
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<TABLE>
<CAPTION>
Redemption Price
Redemption Date Per Share
<S> <C>
on or before December 31, 1999 $11.00
on or after January 1, 2000 $10.50
but before January 1, 2002
on or after January 1, 2002 $10.00
</TABLE>
(2) No partial redemption of Series A Preferred Stock
pursuant to paragraph 4.C.v.a. hereof may be
authorized or made unless prior thereto, full
accrued and unpaid dividends thereon for all
Dividend Periods terminating on or prior to the
Redemption Date and an amount equal to a prorated
dividend thereon for the period from the Dividend
Payment Date immediately prior to the Redemption
Date to the Redemption Date have been or
immediately prior to the Redemption Notice are
declared and paid in cash or are declared and
there has been a sum set apart sufficient for such
cash payment on the Redemption Date.
(3) In the event of a redemption pursuant to paragraph
4.C.v.a. hereof of only a portion of the then
outstanding shares of Series A Preferred Stock,
the Corporation shall effect such redemption pro
rata according to the number of shares held by
each Holder of Series A Preferred Stock.
b. Mandatory Redemption. All outstanding shares of the
Series A Preferred Stock shall be redeemed from funds
legally available therefor on December 31, 2011 (the
"Mandatory Redemption Date"), at a price per share
equal to the Liquidation Preference on such Mandatory
Redemption Date.
c. Procedures for Redemption.
(1) At least 30 days and not more than 60 days prior
to the date fixed for any redemption of Series A
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Preferred Stock, written notice (the "Redemption
Notice") shall be given by first class mail,
postage prepaid, to each Holder of record of
Series A Preferred Stock on the record date fixed
for such redemption of Series A Preferred Stock at
such Holder's address as set forth on the stock
register of the Corporation on such record date;
provided that no failure to give such notice nor
any deficiency therein shall affect the validity
of the procedure for the redemption of any shares
of Series A Preferred Stock to be redeemed except
as to the Holder or Holders to whom the
Corporation has failed to give said notice or
except as to the Holder or Holders whose notice
was defective. In addition to any information
required by law or by the applicable rules of any
exchange upon which shares of Series A Preferred
Stock may be listed or admitted to trading, the
Redemption Notice shall state:
(A) the redemption price;
(B) whether all or less than all of the
outstanding shares of Series A Preferred Stock redeemable thereunder are to be
redeemed and the aggregate number of shares of Series A Preferred Stock being
redeemed;
(C) the number of shares of Series A Preferred
Stock held, as of the appropriate record date, by the Holder that the
Corporation intends to redeem;
(D) the Redemption Date;
(E) that the Holder is to surrender to the
Corporation, at the place or places where certificates for shares of Series A
Preferred Stock are to be surrendered for redemption, in the manner and at the
price designated, his, her or its certificate or certificates representing the
shares of Series A Preferred Stock to be redeemed; and
(F) that dividends on the shares of Series A
Preferred Stock to be redeemed shall cease to accumulate on such Redemption Date
unless the Corporation defaults in the payment of the redemption price.
(2) Each Holder shall surrender the certificate or
certificates representing such shares of Series A
Preferred Stock being so redeemed to the
Corporation, duly endorsed, in the manner and at
the place designated in the Redemption Notice, and
on the Redemption Date the full redemption price
for
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such shares shall be payable in cash to the
Person whose name appears on such certificate or
certificates as the owner thereof, and each
surrendered certificate shall be canceled and
retired. In the event that less than all of the
shares represented by any such certificate are
redeemed, a new certificate shall be issued
representing the unredeemed shares.
(3) If a Redemption Notice has been mailed in
accordance with paragraph 4.C.v.e. above, unless
the Corporation defaults in the payment in full of
the redemption price, then, notwithstanding that
the certificates evidencing any shares of Series A
Preferred Stock so called for redemption shall not
have been surrendered, (x) on the Redemption Date,
the shares represented thereby so called for
redemption shall be deemed no longer outstanding
and shall have the status of authorized but
unissued shares of Preferred Stock, undesignated
as to series, (y) dividends with respect to the
shares so called for redemption shall cease to
accrue after the Redemption Date and (z) all
rights with respect to the shares so called for
redemption or subject to conversion shall
forthwith after such date cease and terminate,
except for the right of the holders to receive the
funds, if any, payable pursuant to this paragraph
5 without interest upon surrender of their
certificates therefor.
d. Deposit of Funds. The Corporation's obligation to
deliver funds in accordance with this paragraph v.
shall be deemed fulfilled if, on or before a Redemption
Date, the Corporation shall deposit, with a bank or
trust Corporation, or an affiliate of a bank or trust
Corporation such funds as are required to be delivered
by the Corporation pursuant to this paragraph v. upon
the occurrence of the related redemption consideration
sufficient to pay all accrued and unpaid dividends on
the shares to be redeemed, in trust for the account of
the Holders of the shares to be redeemed (and so as to
be and continue to be available therefor), with
irrevocable instructions and authority to such bank or
trust Corporation that such shares and funds be
delivered upon redemption of the shares of Series A
Preferred Stock so
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called for redemption. Any interest accrued on such
funds shall be paid to the Corporation from time to
time. Upon surrender of the certificates pursuant to
paragraph 4.C.v.c.(2), each Holder shall thereupon be
entitled to any funds payable pursuant to this
paragraph v. following such surrender and following the
date of such redemption.
vi. Voting Rights.
a. The Holders shall not be entitled or permitted to vote
on any matter required or permitted to be voted upon by
the shareholders of the Corporation, except as
otherwise required by Delaware law or this Certificate
of Designation except that, without the written consent
of the holders of a majority of the outstanding shares
of Series A Preferred Stock or the vote of the holders
of a majority of the outstanding shares of Series A
Preferred Stock at a meeting of the holders of Series A
Preferred Stock called for such purpose, the
Corporation shall not (a) create, authorize or issue
any other class or series of stock entitled to a
preference prior to Series A Preferred Stock upon any
dividend or distribution or any liquidation,
distribution of assets, dissolution or winding up of
the Corporation, or (b) amend, alter or repeal any
provision of the Corporation's Certificate of
Incorporation so as to materially adversely affect the
relative rights and preferences of the Series A
Preferred Stock.
b. Without limiting the generality of the foregoing, in no
event shall the Holders be entitled to vote
(individually or as a class) on any merger or
consolidation involving the Corporation, any sale of
all or substantially all of the assets of the
Corporation or any similar transaction.
c. In any case in which the Holders shall be entitled to
vote pursuant to paragraph 4.C.vi.a. above, each Holder
shall be entitled to one vote for each share of Series
A Preferred Stock held unless otherwise required by
applicable law.
vii. Conversion or Exchange. The Holders shall not have any
rights hereunder to convert such shares into or exchange such shares for shares
of any other class or classes or of any other series of any class or classes of
Capital Stock of the Corporation.
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viii. Reissuance of Series A Preferred Stock. Shares of Series A
Preferred Stock which have been issued and reacquired in any manner, including
shares purchased, redeemed or exchanged, shall have the status of authorized and
unissued shares of Preferred Stock and may be reissued as part of a new series
of Preferred Stock to be created by resolution or resolutions of the Board of
Directors or as part of any other series of Preferred Stock, all subject to the
conditions or restrictions on issuance set forth in any resolution or
resolutions adopted by the Board of Directors providing for the issuance of any
series of Preferred Stock; except that the Corporation may reissue shares of
Series A Preferred Stock which are reacquired by the Corporation from a Holder
who is, or was, an employee or director of the Corporation (or its affiliates).
ix. Business Day. If any payment shall be required by the terms
hereof to be made on a day that is not a Business Day, such payment shall be
made on the immediately succeeding Business Day.
x. No Preemptive Rights No Holder will possess any preemptive
rights to subscribe for or acquire any unissued shares of Capital Stock of the
Corporation (whether now or hereafter authorized) or securities of the
Corporation convertible into or carrying a right to subscribe to or acquire
shares of Capital Stock of the Corporation.
xi. Prohibitions and Restrictions Imposed by Senior Securities
and Indebtedness. To the extent that any action required to be taken by the
Corporation under this Certificate of Designation shall be prohibited or
restricted by the terms of any Series A Senior Securities or any contract or
instrument to which the Corporation is a party or by which it is bound in
respect of the incurrence of indebtedness, such Corporation's actions shall be
delayed until such time as such prohibition or restriction is no longer in
force.
xii. Definitions. As used in this Section 4.C., the following
terms shall have the following meanings (with terms defined in the singular
having comparable meanings when used in the plural and vice versa), unless the
context otherwise requires:
"Accumulated Dividends" means (i) with respect to any share of
Series A Preferred Stock, the dividends that have accrued on such share as of
such specific date for Dividend Periods ending on or prior to such date and that
have not previously been paid in cash, and (ii) with respect to any Series A
Parity Security, the dividends that have accrued and are due on such security as
of such specific date.
"Additional Dividends" has the meaning given to such term in
paragraph 4.C.iii.a.
"Business Day" means any day except a Saturday, Sunday or other
day on which commercial banking institutions in New York City are authorized by
law or executive order to close.
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"Capital Stock" means any and all shares, interests,
participations, rights, or other equivalents (however designated) of corporate
stock including, without limitation, partnership interests.
"Common Stock" shall have the meaning given to such term in
paragraph 4.C.ii.
"Dividend Payment Date" means June 30th and December 31st of each
year.
"Dividend Period" means the Initial Dividend Period and,
thereafter, each Semi-Annual Dividend Period.
"Holder" means a holder of shares of Series A Preferred Stock.
"Initial Dividend Period" means the dividend period commencing on
the Issue Date and ending on the first Dividend Payment Date to occur
thereafter.
"Issue Date" means May 29, 1998.
"Liquidation Preference" has the meaning given to such term in
paragraph 4.C.iv.a.
"Mandatory Redemption Date" has the meaning given to such term in
paragraph 4.C.v.b.
"Person" means any individual, corporation, partnership, joint
venture, incorporated or unincorporated association, joint-stock Corporation,
trust, unincorporated organization or government or other agency or political
subdivision thereof or any other entity of any kind.
"Preferred Stock" means the Preferred Stock of the Corporation.
"Redemption Date", with respect to any shares of Preferred Stock,
means the date on which such shares of Preferred Stock are redeemed by the
Corporation pursuant to paragraph 4.C.v.
"Redemption Notice" has the meaning given to such term in
paragraph 4.C.v.c.
"Series A Junior Payment Date" has the meaning given to such term
in 4.C.iii.c.
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"Series A Junior Securities" has the meaning given to such term
in paragraph 4.C.ii.
"Series A Parity Payment Date" has the meaning given to such term
in 4.C.iii.d.
"Series A Parity Securities" has the meaning given to such term
in paragraph 4.C.ii.
"Semi-Annual Dividend Period" means the annual period commencing
on each January 1st and July 1st and ending on each Dividend Payment Date,
respectively.
"Series A Preferred Stock" has the meaning given to such term in
paragraph 4.C.i.
"Series A Senior Securities" has the meaning given to such term
in paragraph 4.C.ii.
"Series B Preferred Stock" means the Series B 13.25% Cumulative
Compounding Perpetual Preferred Stock of the Corporation as more fully described
in Section 4.D.
"Series C Preferred Stock" means the Series C 13.5% Cumulative
Compounding Preferred Stock of the Corporation as more fully described in
Section 4.E.
D. Series B Preferred Stock.
i. Designation of Series. There shall be 5,000,000 shares of
Preferred Stock designated as "Series B 13.25% Cumulative Compounding Perpetual
Preferred Stock" ("Series B Preferred Stock"). The par value of Series B
Preferred Stock shall be $.01 per share.
ii. Rank. With respect to dividend rights and rights on
liquidation, winding up and dissolution of the Corporation, Series B Preferred
Stock shall rank (a) senior to the Common Stock of the Corporation, par value
$.01 per share ("Common Stock"), the Series C Preferred Stock (defined in
paragraph 4.D.xii. below), and each other class of capital stock or class or
series of preferred stock issued by the Corporation after the date hereof the
terms of which specifically provide that such class or series shall rank junior
to the Series B Preferred Stock as to dividend distributions or distributions
upon the liquidation, winding up and dissolution of the Corporation
(collectively referred to as "Series B Junior Securities"), (b) on a parity with
each other class of capital stock or class or series of preferred stock issued
by the Corporation after the date hereof the terms of which specifically provide
that such class or series shall rank neither senior nor junior to the Series B
Preferred Stock as to dividend distributions or distributions upon liquidation,
winding up and dissolution of the Corporation (collectively referred to as "
Series B Parity Securities"), and (c) junior to (i) the Series A Preferred
Stock, (ii) each
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other class of capital stock or other class or series of preferred stock issued
by the Corporation that by its terms is senior to the Series B Preferred Stock
with respect to dividend distributions or distributions upon the liquidation,
winding up and dissolution of the Corporation and (iii) each other class of
capital stock or class or series of preferred stock issued by the Corporation
after the date hereof the terms of which do not specifically provide that they
rank junior to Series B Preferred Stock or senior to Series B Preferred Stock as
to dividend distributions or distributions upon liquidation, winding up and
dissolution of the Corporation (collectively referred to as "Series B Senior
Securities").
iii. Dividends.
a. Each Holder of Series B Preferred Stock shall be
entitled to receive, when, as and if declared by the
Board of Directors, out of funds legally available
therefor, cash dividends on each share of Series B
Preferred Stock at a rate equal to $1.325 per share per
annum. All dividends shall be cumulative, whether or
not earned or declared, and shall accrue on a daily
basis from the date of issuance of Series B Preferred
Stock, and shall be payable semi-annually in arrears on
each Dividend Payment Date, commencing on the second
Dividend Payment Date after the date of issuance of
such Series B Preferred Stock. Each dividend on Series
B Preferred Stock shall be payable to the Holders of
record of Series B Preferred Stock as they appear on
the stock register of the Corporation on such record
date as may be fixed by the Board of Directors, which
record date shall not be less than 10 nor more than 60
days prior to the applicable Dividend Payment Date.
Dividends shall cease to accrue in respect of shares of
Series B Preferred Stock on the date of their
repurchase by the Corporation unless the Corporation
shall have failed to pay the relevant repurchase price
on the date fixed for repurchase. Notwithstanding
anything to the contrary set forth above, unless and
until such dividends are declared by the Board of
Directors, there shall be no obligation to pay such
dividends; provided, that such dividends shall continue
to cumulate and shall be added to the Liquidation
Preference (as provided in paragraph 4.D.iv.a. below)
at the time of repurchase as provided herein if not
earlier declared and paid. Accrued dividends on the
Series B Preferred Stock if not paid on the first or
any subsequent Dividend Payment Date following accrual
shall thereafter accrue additional dividends
("Additional Dividends") in respect thereof, compounded
annually, at the rate of 13.25% per annum.
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<PAGE>
b. All dividends paid with respect to shares of Series B
Preferred Stock pursuant to paragraph 4.D.iii.a. shall
be paid pro rata to the Holders entitled thereto.
c. Dividends on account of arrears for any past Dividend
Period may be declared and paid at any time, without
reference to any regular Dividend Payment Date, to the
Holders of record on any date as may be fixed by the
Board of Directors, which date is not more than 60 days
prior to the payment of such dividends.
d. As long as any Series B Preferred Stock is outstanding,
no dividends shall be declared by the Board of
Directors or paid or funds set apart for the payment of
dividends or other distributions on any Series B Parity
Securities for any period, and no Series B Parity
Securities may be repurchased, redeemed or otherwise
acquired, nor may funds be set apart for such payment
(other than dividends, other distributions,
redemptions, repurchases or acquisitions payable in
Series B Junior Securities and cash in lieu of
fractional shares of such Series B Junior Securities in
connection therewith), unless (i) full Accumulated
Dividends have been paid or set apart for such payment
on the Series B Preferred Stock and Series B Parity
Securities for all Dividend Periods terminating on or
prior to the date of payment of such dividends or
distributions on, or such repurchase or redemption of,
such Series B Parity Securities (the "Series B Parity
Payment Date") and (ii) any such dividends are
declared and paid pro rata so that the amounts of any
dividends declared and paid per share on outstanding
Series B Preferred Stock and each other share of Series
B Parity Securities will in all cases bear to each
other the same ratio that accrued and unpaid dividends
(including any Accumulated Dividends) per share of
outstanding Series B Preferred Stock and such other
outstanding shares of Series B Parity Securities bear
to each other.
e. The Holders shall be entitled to receive the dividends
provided for in paragraph 4.D.iii.a. hereof in
preference to and in priority over any dividends upon
any of the Series B Junior Securities. Such dividends
on the Series B Preferred Stock shall be cumulative,
whether or not earned or declared, so that if at any
time full Accumulated Dividends on all shares of Series
B Preferred Stock then outstanding
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<PAGE>
for all Dividend Periods then elapsed have not been
paid or set aside for payment, the amount of such
unpaid dividends shall be paid before any sum shall be
set aside for or applied by the Corporation to the
purchase, redemption or other acquisition for value of
any shares of Series B Junior Securities (either
pursuant to any applicable sinking fund requirement or
otherwise) or any dividend or other distribution shall
be paid or declared or set apart for payment on any
Series B Junior Securities (the date of any such a
ctions to be referred to as the "Series B Junior
Payment Date"); provided, however, that the foregoing
shall not (i) prohibit the Corporation from
repurchasing shares of Series B Junior Securities from
a holder thereof who is, or was, a director or employee
of the Corporation (or an affiliate of the Corporation)
and (ii) prohibit the Corporation from making
dividends, other distributions, redemptions,
repurchases or acquisitions in respect of Series B
Junior Securities payable in Series B Junior
Securities and cash in lieu of fractional shares of
such Series B Junior Securities in connection
therewith.
f. Dividends payable on Series B Preferred Stock for any
period less than one year shall be computed on the
basis of a 360-day year consisting of twelve 30-day
months and the actual number of days elapsed in the
period for which such dividends are payable.
iv. Liquidation Preference.
a. Upon any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the
Holders of all shares of Series B Preferred Stock then
outstanding shall be entitled to be paid out of the
assets of the Corporation available for distribution to
its stockholders an amount in cash equal to $10.00 per
share, plus an amount equal to full cumulative
dividends (whether or not earned or declared) accrued
and unpaid thereon, including Additional Dividends, to
the date of final distribution (the "Liquidation
Preference") and no more, before any distribution is
made on any Series B Junior Securities. If upon any
voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the application of all
amounts available for payments with respect to Series B
Preferred Stock and all other Series B Parity
Securities would not result in payment
17
<PAGE>
in full of Series B Preferred Stock and such other
Series B Parity Securities, the Holders and holders of
Series B Parity Securities shall share equally and
ratably in any distribution of assets of the
Corporation in proportion to the full liquidation
preference to which each is entitled. After payment in
full pursuant to this paragraph 4.D.iv.a., the Holders
shall not be entitled to any further participation in
any distribution in the event of liquidation,
dissolution or winding up of the affairs of the
Corporation.
b. For the purposes of this paragraph 4.D.iv., neither the
voluntary sale, conveyance, exchange or transfer (for
cash, shares of stock, securities or other
consideration) of all or substantially all of the
property or assets of the Corporation nor the
consolidation, merger or other business combination of
the Corporation with one or more corporations (whether
or not the Corporation is the surviving corporation)
shall be deemed to be a voluntary or involuntary
liquidation, dissolution or winding up of the
Corporation.
v. Redemption. The Company shall not have the right nor the power
to, and the Holders shall not have the right to require the Company to, redeem
any shares of Series B Preferred Stock. Notwithstanding the foregoing, this
Paragraph 4.D.v. shall not prohibit the Corporation from acquiring from any
Holder, with such Holder's consent, any shares of Series B Preferred Stock held
by such Holder.
vi. Voting Rights.
a. The Holders shall not be entitled or permitted to vote
on any matter required or permitted to be voted upon by
the shareholders of the Corporation, except as
otherwise required by Delaware law or this Certificate
of Designation except that, without the written consent
of the holders of a majority of the outstanding shares
of Series B Preferred Stock or the vote of the holders
of a majority of the outstanding shares of Series B
Preferred Stock at a meeting of the holders of Series B
Preferred Stock called for such purpose, the
Corporation shall not (a) create, authorize or issue
any other class or series of stock entitled to a
preference prior to Series B Preferred Stock upon any
dividend or distribution or any liquidation,
distribution of assets, dissolution or winding up of
the Corporation, or (b) amend, alter or repeal any
provision of the Corporation's Certificate of
Incorporation so as to materially adversely
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<PAGE>
affect the relative rights and preferences of the
Series B Preferred Stock.
b. Without limiting the generality of the foregoing, in no
event shall the Holders be entitled to vote
(individually or as a class) on any merger or
consolidation involving the Corporation, any sale of
all or substantially all of the assets of the
Corporation or any similar transaction.
c. In any case in which the Holders shall be entitled to
vote pursuant to paragraph 4.D.vi.a. above, each Holder
shall be entitled to one vote for each share of Series
B Preferred Stock held unless otherwise required by
applicable law.
vii. Conversion or Exchange. The Holders shall not have any
rights hereunder to convert such shares into or exchange such shares for shares
of any other class or classes or of any other series of any class or classes of
Capital Stock of the Corporation.
viii. Reissuance of Series B Preferred Stock. Shares of Series B
Preferred Stock which have been issued and reacquired in any manner, including
shares purchased, redeemed or exchanged, shall have the status of authorized and
unissued shares of Preferred Stock and may be reissued as part of a new series
of Preferred Stock to be created by resolution or resolutions of the Board of
Directors or as part of any other series of Preferred Stock, all subject to the
conditions or restrictions on issuance set forth in any resolution or
resolutions adopted by the Board of Directors providing for the issuance of any
series of Preferred Stock; except that the Corporation may reissue shares of
Series B Preferred Stock which are reacquired by the Corporation from a Holder
who is, or was, an employee or director of the Corporation (or its affiliates).
ix. Business Day. If any payment shall be required by the terms
hereof to be made on a day that is not a Business Day, such payment shall be
made on the immediately succeeding Business Day.
x. No Preemptive Rights No Holder will possess any preemptive
rights to subscribe for or acquire any unissued shares of Capital Stock of the
Corporation (whether now or hereafter authorized) or securities of the
Corporation convertible into or carrying a right to subscribe to or acquire
shares of Capital Stock of the Corporation.
xi. Prohibitions and Restrictions Imposed by Senior Securities
and Indebtedness. To the extent that any action required to be taken by the
Corporation under this Certificate of Designation shall be prohibited or
restricted by the terms of any Series B Senior Securities or any contract or
instrument to which the Corporation is a party or by which it is bound in
respect of the incurrence of indebtedness, such Corporation's actions shall be
delayed until such time as such prohibition or restriction is no longer in
force.
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<PAGE>
xii. Definitions. As used in this Section 4.D., the following
terms shall have the following meanings (with terms defined in the singular
having comparable meanings when used in the plural and vice versa), unless the
context otherwise requires:
"Accumulated Dividends" means (i) with respect to any share of
Series B Preferred Stock, the dividends that have accrued on such share as of
such specific date for Dividend Periods ending on or prior to such date and that
have not previously been paid in cash, and (ii) with respect to any Series B
Parity Security, the dividends that have accrued and are due on such security as
of such specific date.
"Additional Dividends" has the meaning given to such term in
paragraph 4.D.iii.a.
"Business Day" means any day except a Saturday, Sunday or other
day on which commercial banking institutions in New York City are authorized by
law or executive order to close.
"Capital Stock" means any and all shares, interests,
participations, rights, or other equivalents (however designated) of corporate
stock including, without limitation, partnership interests.
"Common Stock" shall have the meaning given to such term in
paragraph 4.D.ii.
"Dividend Payment Date" means June 30th and December 31st of each
year.
"Dividend Period" means the Initial Dividend Period and,
thereafter, each Semi-Annual Dividend Period.
"Holder" means a holder of shares of Series B Preferred Stock.
"Initial Dividend Period" means the dividend period commencing on
the Issue Date and ending on the first Dividend Payment Date to occur
thereafter.
"Issue Date" means May 29, 1998.
"Liquidation Preference" has the meaning given to such term in
paragraph 4.D.iv.a.
"Person" means any individual, corporation, partnership, joint
venture, incorporated or unincorporated association, joint-stock Corporation,
trust, unincorporated organization or government or other agency or political
subdivision thereof or any other entity of any kind.
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<PAGE>
"Preferred Stock" means the Preferred Stock of the Corporation.
"Semi-Annual Dividend Period" means the annual period commencing
on each January 1st and July 1st and ending on each Dividend Payment Date,
respectively.
"Series A Preferred Stock" means the Series A 13.0% Cumulative
Compounding Preferred Stock of the Corporation as more fully described in
Section 4.C.
"Series B Junior Payment Date" has the meaning given to such term
in 4.D.iii.e.
"Series B Junior Securities" has the meaning given to such term
in paragraph 4.D.ii.
"Series B Parity Payment Date" has the meaning given to such term
in 4.D.iii.d.
"Series B Parity Securities" has the meaning given to such term
in paragraph 4.D.ii.
"Series B Preferred Stock" has the meaning given to such term in
paragraph 4.D.i..
"Series B Senior Securities" has the meaning given to such term
in paragraph 4.D.ii.
"Series C Preferred Stock" means the Series C 13.5% Cumulative
Compounding Preferred Stock of the Corporation as more fully described in
Section 4.E.
E. Series C Preferred Stock.
i. Designation of Series. There shall be 5,000,000 shares of
Preferred Stock designated as "Series C 13.5% Cumulative Compounding Preferred
Stock" ("Series C Preferred Stock"). The par value of Series C Preferred Stock
shall be $.01 per share.
ii. Rank. With respect to dividend rights and rights on
liquidation, winding up and dissolution of the Corporation, Series C Preferred
Stock shall rank (a) senior to the Common Stock of the Corporation, par value
$.01 per share ("Common Stock"), and each other class of capital stock or class
or series of preferred stock issued by the Corporation after the date hereof the
terms of which specifically provide that such class or series shall rank junior
to the Series C Preferred Stock as to dividend distributions or distributions
upon the liquidation, winding up and dissolution of the Corporation
(collectively referred to as "Series C Junior Securities"), (b) on a parity with
each other class of capital stock or class or series of preferred stock issued
by the Corporation
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<PAGE>
after the date hereof the terms of which specifically provide that such class or
series shall rank neither senior nor junior to the Series C Preferred Stock as
to dividend distributions or distributions upon liquidation, winding up and
dissolution of the Corporation (collectively referred to as " Series C Parity
Securities"), and (c) junior to (i) the Series A Preferred Stock (defined in
Paragraph 4.E.xii.), (ii) the Series B Preferred Stock (defined in Paragraph
4.E.xii.), (iii) each other class of capital stock or other class or series of
preferred stock issued by the Corporation that by its terms is senior to the
Series C Preferred Stock with respect to dividend distributions or distributions
upon the liquidation, winding up and dissolution of the Corporation and (iv)
each other class of capital stock or class or series of preferred stock issued
by the Corporation after the date hereof the terms of which do not specifically
provide that they rank junior to Series C Preferred Stock or senior to Series C
Preferred Stock as to dividend distributions or distributions upon liquidation,
winding up and dissolution of the Corporation (collectively referred to as
"Series C Senior Securities").
iii. Dividends.
a. Each Holder of Series C Preferred Stock shall be
entitled to receive, when, as and if declared by the
Board of Directors, out of funds legally available
therefor, cash dividends on each share of Series C
Preferred Stock at a rate equal to $1.35 per share per
annum. All dividends shall be cumulative, whether or
not earned or declared, and shall accrue on a daily
basis from the date of issuance of Series C Preferred
Stock, and shall be payable semi-annually in arrears on
each Dividend Payment Date, commencing on the second
Dividend Payment Date after the date of issuance of
such Series C Preferred Stock. Each dividend on Series
C Preferred Stock shall be payable to the Holders of
record of Series C Preferred Stock as they appear on
the stock register of the Corporation on such record
date as may be fixed by the Board of Directors, which
record date shall not be less than 10 nor more than 60
days prior to the applicable Dividend Payment Date.
Dividends shall cease to accrue in respect of shares of
Series C Preferred Stock on the date of their
repurchase by the Corporation unless the Corporation
shall have failed to pay the relevant repurchase price
on the date fixed for repurchase. Notwithstanding
anything to the contrary set forth above, unless and
until such dividends are declared by the Board of
Directors, there shall be no obligation to pay such
dividends; provided, that such dividends shall continue
to cumulate and shall be added to the Liquidation
Preference (as provided in paragraph 4.E.iv.a. below)
at the time of repurchase as provided herein if not
earlier declared and paid. Accrued
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<PAGE>
dividends on the Series C Preferred Stock if not paid
on the first or any subsequent Dividend Payment Date
following accrual shall thereafter accrue additional
dividends ("Additional Dividends") in respect thereof,
compounded annually, at the rate of 13.5% per annum.
b. All dividends paid with respect to shares of Series C
Preferred Stock pursuant to paragraph 4.E.iii.a. shall
be paid pro rata to the Holders entitled thereto.
c. Dividends on account of arrears for any past Dividend
Period and dividends in connection with any optional
redemption pursuant to paragraph 4.E.v.a. may be
declared and paid at any time, without reference to any
regular Dividend Payment Date, to the Holders of record
on any date as may be fixed by the Board of Directors,
which date is not more than 60 days prior to the
payment of such dividends.
d. As long as any Series C Preferred Stock is outstanding,
no dividends shall be declared by the Board of
Directors or paid or funds set apart for the payment of
dividends or other distributions on any Series C Parity
Securities for any period, and no Series C Parity
Securities may be repurchased, redeemed or otherwise
acquired, nor may funds be set apart for such payment
(other than dividends, other distributions,
redemptions, repurchases or acquisitions payable in
Series C Junior Securities and cash in lieu of
fractional shares of such Series C Junior Securities in
connection therewith), unless (i) full Accumulated
Dividends have been paid or set apart for such payment
on the Series C Preferred Stock and Series C Parity
Securities for all Dividend Periods terminating on or
prior to the date of payment of such dividends or
distributions on, or such repurchase or redemption of,
such Series C Parity Securities (the "Series C Parity
Payment Date") and (ii) any such dividends are declared
and paid pro rata so that the amounts of any dividends
declared and paid per share on outstanding Series C
Preferred Stock and each other share of Series C Parity
Securities will in all cases bear to each other the
same ratio that accrued and unpaid dividends (including
any Accumulated Dividends) per share of outstanding
Series C Preferred Stock and such other outstanding
shares of Series C Parity Securities bear to each
other.
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<PAGE>
e. The Holders shall be entitled to receive the dividends
provided for in paragraph 4.E.iii.a. hereof in
preference to and in priority over any dividends upon
any of the Series C Junior Securities. Such dividends
on the Series C Preferred Stock shall be cumulative,
whether or not earned or declared, so that if at any
time full Accumulated Dividends on all shares of Series
C Preferred Stock then outstanding for all Dividend
Periods then elapsed have not been paid or set aside
for payment, the amount of such unpaid dividends shall
be paid before any sum shall be set aside for or
applied by the Corporation to the purchase, redemption
or other acquisition for value of any shares of Series
C Junior Securities (either pursuant to any applicable
sinking fund requirement or otherwise) or any dividend
or other distribution shall be paid or declared or set
apart for payment on any Series C Junior Securities
(the date of any such actions to be referred to as the
"Series C Junior Payment Date"); provided, however,
that the foregoing shall not (i) prohibit the
Corporation from repurchasing shares of Series C Junior
Securities from a holder thereof who is, or was, a
director or employee of the Corporation (or an
affiliate of the Corporation) and (ii) prohibit the
Corporation from making dividends, other distributions,
redemptions, repurchases or acquisitions in respect of
Series C Junior Securities payable in Series C Junior
Securities and cash in lieu of fractional shares of
such Series C Junior Securities in connection
therewith.
f. Dividends payable on Series C Preferred Stock for any
period less than one year shall be computed on the
basis of a 360-day year consisting of twelve 30-day
months and the actual number of days elapsed in the
period for which such dividends are payable.
iv. Liquidation Preference.
a. Upon any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the
Holders of all shares of Series C Preferred Stock then
outstanding shall be entitled to be paid out of the
assets of the Corporation available for distribution to
its stockholders an amount in cash equal to $10.00 per
share, plus an amount equal to full cumulative
dividends (whether or not earned or declared) accrued
and unpaid thereon, including Additional
24
<PAGE>
Dividends, to the date of final distribution (the
"Liquidation Preference") and no more, before any
distribution is made on any Series C Junior
Securities. If upon any voluntary or involuntary
liquidation, dissolution or winding up of the
Corporation, the application of all amounts available
for payments with respect to Series C Preferred Stock
and all other Series C Parity Securities would not
result in payment in full of Series C Preferred Stock
and such other Series C Parity Securities, the Holders
and holders of Series C Parity Securities shall share
equally and ratably in any distribution of assets of
the Corporation in proportion to the full liquidation
preference to which each is entitled. After payment in
full pursuant to this paragraph 4.E.iv.a., the Holders
shall not be entitled to any further participation in
any distribution in the event of liquidation,
dissolution or winding up of the affairs of the
Corporation.
b. For the purposes of this paragraph 4.E.iv., neither the
voluntary sale, conveyance, exchange or transfer (for
cash, shares of stock, securities or other
consideration) of all or substantially all of the
property or assets of the Corporation nor the
consolidation, merger or other business combination of
the Corporation with one or more corporations (whether
or not the Corporation is the surviving corporation)
shall be deemed to be a voluntary or involuntary
liquidation, dissolution or winding up of the
Corporation.
v. Redemption.
a. Optional Redemption.
(1) The Corporation may, at its option, redeem at any
time or from time to time, from any source of
funds legally available therefor, in whole or in
part, in the manner provided in paragraph 4.E.v.c.
hereof, any or all of the shares of Series C
Preferred Stock, at a redemption price of $10.00
per share, plus an amount equal to full cumulative
dividends (whether or not earned or declared)
accrued and unpaid thereon, including Additional
Dividends, to the Redemption Date (as defined in
paragraph B).
(2) No partial redemption of Series C Preferred Stock
pursuant to paragraph 4.E.v.a. hereof may be
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<PAGE>
authorized or made unless prior thereto, full
accrued and unpaid dividends thereon for all
Dividend Periods terminating on or prior to the
Redemption Date and an amount equal to a prorated
dividend thereon for the period from the Dividend
Payment Date immediately prior to the Redemption
Date to the Redemption Date have been or
immediately prior to the Redemption Notice are
declared and paid in cash or are declared and
there has been a sum set apart sufficient for such
cash payment on the Redemption Date.
(3) In the event of a redemption pursuant to
paragraph 4.E.v.a. hereof of only a portion of the
then outstanding shares of Series C Preferred
Stock, the Corporation shall effect such
redemption pro rata according to the number of
shares held by each Holder of Series C Preferred
Stock.
b. Mandatory Redemption. All outstanding shares of the
Series C Preferred Stock shall be redeemed from funds
legally available therefor on December 31, 2012 (the
"Mandatory Redemption Date"), at a price per share
equal to the Liquidation Preference on such Mandatory
Redemption Date.
c. Procedures for Redemption.
(1) At least 30 days and not more than 60 days prior
to the date fixed for any redemption of Series C
Preferred Stock, written notice (the "Redemption
Notice") shall be given by first class mail,
postage prepaid, to each Holder of record of
Series C Preferred Stock on the record date fixed
for such redemption of Series C Preferred Stock at
such Holder's address as set forth on the stock
register of the Corporation on such record date;
provided that no failure to give such notice nor
any deficiency therein shall affect the validity
of the procedure for the redemption of any shares
of Series C Preferred Stock to be redeemed except
as to the Holder or Holders to whom the
Corporation has failed to give said notice or
except as to the Holder or Holders whose notice
was defective. In addition to any
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<PAGE>
information required by law or by the applicable
rules of any exchange upon which shares of Series
C Preferred Stock may be listed or admitted to
trading, the Redemption Notice shall state:
(A) the redemption price;
(B) whether all or less than all of the
outstanding shares of Series C Preferred Stock redeemable thereunder are to be
redeemed and the aggregate number of shares of Series C Preferred Stock being
redeemed;
(C) the number of shares Series C Preferred Stock
held, as of the appropriate record date, by the Holder that the Corporation
intends to redeem;
(D) the Redemption Date;
(E) that the Holder is to surrender to the
Corporation, at the place or places where certificates for shares of Series C
Preferred Stock are to be surrendered for redemption, in the manner and at the
price designated, his, her or its certificate or certificates representing the
shares of Series C Preferred Stock to be redeemed; and
(F) that dividends on the of Series C Preferred
Stock to be redeemed shall cease to accumulate on such Redemption Date unless
the Corporation defaults in the payment of the redemption price.
(2) Each Holder shall surrender the certificate or
certificates representing such shares of Series C
Preferred Stock being so redeemed to the
Corporation, duly endorsed, in the manner and at
the place designated in the Redemption Notice, and
on the Redemption Date the full redemption price
for such shares shall be payable in cash to the
Person whose name appears on such certificate or
certificates as the owner thereof, and each
surrendered certificate shall be canceled and
retired. In the event that less than all of the
shares represented by any such certificate are
redeemed, a new certificate shall be issued
representing the unredeemed shares.
(3) If a Redemption Notice has been mailed in
accordance with paragraph 4.E.v.c. above, unless
the Corporation defaults in the payment in full
of the
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<PAGE>
redemption price, then, notwithstanding that the
certificates evidencing any shares of Series C
Preferred Stock so called for redemption
shall not have been surrendered, (x) on the
Redemption Date, the shares represented thereby
so called for redemption shall be deemed no longer
outstanding and shall have the status of
authorized but unissued shares of Preferred Stock,
undesignated as to series, (y) dividends with
respect to the shares so called for redemption
shall cease to accrue after the Redemption Date
and (z) all rights with respect to the shares
so called for redemption or subject to conversion
shall forthwith after such date cease and
terminate, except for the right of the holders to
receive the funds, if any, payable pursuant to
this paragraph 5 without interest upon surrender
of their certificates therefor.
d. Deposit of Funds. The Corporation's obligation to
deliver funds in accordance with this paragraph v.
shall be deemed fulfilled if, on or before a Redemption
Date, the Corporation shall deposit, with a bank or
trust Corporation, or an affiliate of a bank or trust
Corporation such funds as are required to be delivered
by the Corporation pursuant to this paragraph v. upon
the occurrence of the related redemption consideration
sufficient to pay all accrued and unpaid dividends on
the shares to be redeemed, in trust for the account of
the Holders of the shares to be redeemed (and so as to
be and continue to be available therefor), with
irrevocable instructions and authority to such bank or
trust Corporation that such shares and funds be
delivered upon redemption of the shares of Series C
Preferred Stock so called for redemption. Any interest
accrued on such funds shall be paid to the Corporation
from time to time. Upon surrender of the certificates
pursuant to paragraph 4.E.v.c.(2), each Holder shall
thereupon be entitled to any funds payable pursuant to
this paragraph v. following such surrender and
following the date of such redemption.
vi. Voting Rights.
a. The Holders shall not be entitled or permitted to vote
on any matter required or permitted to be voted upon by
the shareholders of the Corporation, except as
otherwise
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required by Delaware law or this Certificate of
Designation except that, without the written consent
of the holders of a majority of the outstanding shares
of Series C Preferred Stock or the vote of the holders
of a majority of the outstanding shares of Series C
Preferred Stock at a meeting of the holders of Series C
Preferred Stock called for such purpose, the
Corporation shall not (a) create, authorize or issue
any other class or series of stock entitled to a
preference prior to Series C Preferred Stock upon any
dividend or distribution or any liquidation,
distribution of assets, dissolution or winding up of
the Corporation, or (b) amend, alter or repeal any
provision of the Corporation's Certificate of
Incorporation so as to materially adversely affect the
relative rights and preferences of the Series C
Preferred Stock.
b. Without limiting the generality of the foregoing, in no
event shall the Holders be entitled to vote
(individually or as a class) on any merger or
consolidation involving the Corporation, any sale of
all or substantially all of the assets of the
Corporation or any similar transaction.
c. In any case in which the Holders shall be entitled to
vote pursuant to paragraph 4.E.vi.a. above, each Holder
shall be entitled to one vote for each share of Series
C Preferred Stock held unless otherwise required by
applicable law.
vii. Conversion or Exchange. The Holders shall not have any
rights hereunder to convert such shares into or exchange such shares for shares
of any other class or classes or of any other series of any class or classes of
Capital Stock of the Corporation.
viii. Reissuance of Series C Preferred Stock. Shares of Series C
Preferred Stock which have been issued and reacquired in any manner, including
shares purchased, redeemed or exchanged, shall have the status of authorized and
unissued shares of Preferred Stock and may be reissued as part of a new series
of Preferred Stock to be created by resolution or resolutions of the Board of
Directors or as part of any other series of Preferred Stock, all subject to the
conditions or restrictions on issuance set forth in any resolution or
resolutions adopted by the Board of Directors providing for the issuance of any
series of Preferred Stock; except that the Corporation may reissue shares of
Series C Preferred Stock which are reacquired by the Corporation from a Holder
who is, or was, an employee or director of the Corporation (or its affiliates).
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ix. Business Day. If any payment shall be required by the terms
hereof to be made on a day that is not a Business Day, such payment shall be
made on the immediately succeeding Business Day.
x. No Preemptive Rights No Holder will possess any preemptive
rights to subscribe for or acquire any unissued shares of Capital Stock of the
Corporation (whether now or hereafter authorized) or securities of the
Corporation convertible into or carrying a right to subscribe to or acquire
shares of Capital Stock of the Corporation.
xi. Prohibitions and Restrictions Imposed by Senior Securities
and Indebtedness. To the extent that any action required to be taken by the
Corporation under this Certificate of Designation shall be prohibited or
restricted by the terms of any Series C Senior Securities or any contract or
instrument to which the Corporation is a party or by which it is bound in
respect of the incurrence of indebtedness, such Corporation's actions shall be
delayed until such time as such prohibition or restriction is no longer in
force.
xii. Definitions. As used in this Section 4.E., the following
terms shall have the following meanings (with terms defined in the singular
having comparable meanings when used in the plural and vice versa), unless the
context otherwise requires:
"Accumulated Dividends" means (i) with respect to any share of
Series C Preferred Stock, the dividends that have accrued on such share as of
such specific date for Dividend Periods ending on or prior to such date and that
have not previously been paid in cash, and (ii) with respect to any Series C
Parity Security, the dividends that have accrued and are due on such security as
of such specific date.
"Additional Dividends" has the meaning given to such term in
paragraph 4.E.iii.a.
"Business Day" means any day except a Saturday, Sunday or other
day on which commercial banking institutions in New York City are authorized by
law or executive order to close.
"Capital Stock" means any and all shares, interests,
participations, rights, or other equivalents (however designated) of corporate
stock including, without limitation, partnership interests.
"Common Stock" shall have the meaning given to such term in
paragraph 4.E.ii.
"Dividend Payment Date" means June 30th and December 31st of each
year.
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"Dividend Period" means the Initial Dividend Period and,
thereafter, each Semi-Annual Dividend Period.
"Holder" means a holder of shares of Series C Preferred Stock.
"Initial Dividend Period" means the dividend period commencing on
the Issue Date and ending on the first Dividend Payment Date to occur
thereafter.
"Issue Date" means May 29, 1998.
"Liquidation Preference" has the meaning given to such term in
paragraph 4.E.iv.a.
"Mandatory Redemption Date" has the meaning given to such term in
paragraph 4.E.v.b.
"Person" means any individual, corporation, partnership, joint
venture, incorporated or unincorporated association, joint-stock Corporation,
trust, unincorporated organization or government or other agency or political
subdivision thereof or any other entity of any kind.
"Preferred Stock" means the Preferred Stock of the Corporation.
"Redemption Date", with respect to any shares of Preferred Stock,
means the date on which such shares of Preferred Stock are redeemed by the
Corporation pursuant to paragraph 4.E.v.
"Redemption Notice" has the meaning given to such term in
paragraph 4.E.v.c.
"Semi-Annual Dividend Period" means the annual period commencing
on each January 1st and July 1st and ending on each Dividend Payment Date,
respectively.
"Series A Preferred Stock" means the Series A 13.0% Cumulative
Compounding Preferred Stock of the Corporation as more fully described in
Section 4.C.
"Series B Preferred Stock" means the Series B 13.25% Cumulative
Compounding Preferred Stock of the Corporation as more fully described in
Section 4.D.
"Series C Junior Payment Date" has the meaning given to such term
in 4.E.iii.e.
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"Series C Junior Securities" has the meaning given to such term
in paragraph 4.E.ii.
"Series C Parity Payment Date" has the meaning given to such term
in 4.E.iii.d.
"Series C Parity Securities" has the meaning given to such term
in paragraph 4.E.ii.
"Series C Preferred Stock" has the meaning given to such term in
paragraph 4.E.i.
"Series C Senior Securities" has the meaning given to such term
in paragraph 4.E.ii.
5. Bylaws. The board of directors of the Corporation is authorized to
adopt, amend or repeal the bylaws of the Corporation, except as otherwise
specifically provided therein.
6. Elections of Directors. Elections of directors need not be by written
ballot unless the bylaws of the Corporation shall so provide.
7. Right to Amend. The Corporation reserves the right to amend any
provision contained in this Certificate as the same may from time to time be in
effect in the manner now or hereafter prescribed by law, and all rights
conferred on stockholders or others hereunder are subject to such reservation.
8. Limitation on Liability. The directors of the Corporation shall be
entitled to the benefits of all limitations on the liability of directors
generally that are now or hereafter become available under the General
Corporation Law of Delaware. Without limiting the generality of the foregoing,
no director of the Corporation shall be liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, or (iv) for any transaction
from which the director derived an improper personal benefit. Any repeal or
modification of this Section 8 shall be prospective only, and shall not affect,
to the detriment of any director, any limitation on the personal liability of a
director of the Corporation existing at the time of such repeal or modification.
9. Incorporator. The name and address of the Incorporator is: Ira S. Pim,
Jr., 2225 Land Title Building, Philadelphia, PA 19101.
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