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EXHIBIT (3)(ii)
RESTATED CERTIFICATE OF INCORPORATION
OF
NORTHERN TRUST CORPORATION
NORTHERN TRUST CORPORATION, a Corporation organized and existing under the
laws of the State of Delaware, hereby certifies as follows:
1. The name of the Corporation is Northern Trust Corporation.
The date of filing its original Certificate of Incorporation, under
the name Nortrust Corporation, with the Secretary of State was August 23,
1971.
2. This Restated Certificate of Incorporation restates and
integrates and does not further amend the provisions of the Certificate of
Incorporation as heretofore amended of this Corporation, and there is no
discrepancy between this Restated Certificate of Incorporation and the
Certificate of Incorporation as heretofore amended of this Corporation.
3. The text of the Certificate of Incorporation is restated hereby
to read as herein set forth in full:
RESTATED CERTIFICATE OF INCORPORATION
OF
NORTHERN TRUST CORPORATION
ARTICLE FIRST
Name
The name of the Corporation is Northern Trust Corporation.
ARTICLE SECOND
Registered Office
The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
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ARTICLE THIRD
Purposes
The nature of the business to be conducted or promoted and the purposes of
the Corporation are to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of Delaware.
ARTICLE FOURTH
Capital Stock Classes
The total number of shares of all classes of capital stock which the
Corporation has the authority to issue is 71,000,000 shares, which are divided
into two classes as follows:
1,000,000 shares of Preferred Stock (Preferred Stock) without par value,
and
70,000,000 shares of Common Stock (Common Stock) $1.66-2/3 par value per
share.
The designations, voting powers, preferences and relative, participating,
optional or other special rights, and qualifications, limitations or
restrictions of the above classes of stock are as follows:
I
Preferred Stock
1. Issuance in Series.
Shares of Preferred Stock may be issued in one or more series at such time
or times, and for such consideration or considerations as the Board of Directors
may determine. All shares of any one series of Preferred Stock will be identical
with each other in all respects, except that shares of any one series issued at
different times may differ as to dates from which dividends thereon may be
cumulative. All series will rank equally and be identical in all respects,
except as permitted by the following provisions of paragraph 2 of this Division
I.
2. Authority of the Board with respect to Series.
The Board of Directors is authorized, at any time and from time to time, to
provide for the issuance of shares of Preferred Stock in one or more series with
such designations, preferences and relative, participating, optional or other
special rights and qualifications, limitations or restrictions thereof as are
stated and expressed in the resolution or resolutions providing for the issue
thereof adopted by the Board of Directors, and as are not stated and expressed
in this Restated Certificate of Incorporation or any amendment thereto
including, but not limited to, determination of any of the following:
(a) the distinctive serial designation and the number of shares
constituting a series;
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(b) the dividend rate or rates, whether dividends are cumulative and,
if so, from which date, the payment date or dates for dividends, and the
participating or other special rights, if any, with respect to dividends;
(c) the voting powers, full or limited, if any, of the shares of the
series;
(d) whether the shares are redeemable and, if so, the price or prices
at which, and the terms and conditions on which, the shares may be
redeemed;
(e) the amount or amounts payable upon the shares in the event of
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation prior to any payment or distribution of the assets of the
Corporation to any class or classes of stock of the Corporation ranking
junior to the Preferred Stock;
(f) whether the shares are entitled to the benefit of a sinking or
retirement fund to be applied to the purchase or redemption of shares of a
series and, if so entitled, the amount of the fund and the manner of its
application, including the price or prices at which the shares may be
redeemed or purchased through the application of the fund;
(g) whether the shares are convertible into, or exchangeable for,
shares of any other class or classes or of any other series of the same or
any other class or classes of stock of the Corporation and, if so
convertible or exchangeable, the conversion price or prices, or the rates
of exchange, and the adjustments thereof, if any, at which the conversion
or exchange may be made, and any other terms and conditions of the
conversion or exchange; and
(h) any other preferences, privileges and powers, and relative
participating, optional or other special rights, and qualifications,
limitations or restrictions of a series, as the Board of Directors may deem
advisable and as are not inconsistent with the provisions of this Restated
Certificate of Incorporation.
3. Dividends.
Before any dividends on any class or classes of stock of the Corporation
ranking junior to the Preferred stock (other than dividends payable in shares of
any class or classes of stock of the Corporation ranking junior to the Preferred
Stock) may be declared or paid or set apart for payment, the holders of shares
of Preferred Stock of each series are entitled to such cash dividends, but only
when and as declared by the Board of Directors out of funds legally available
therefor, as they may be entitled to in accordance with the resolution or
resolutions adopted by the Board of Directors providing for the issue of the
series, payable on such dates in each year as may be fixed in the resolution or
resolutions. The term "class or classes of stock of the Corporation ranking
junior to the Preferred Stock" means the Common Stock and any other class or
classes of stock of the Corporation hereafter authorized which rank junior to
the Preferred Stock as to dividends or upon liquidation.
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4. Reacquired Shares.
Shares of Preferred Stock which have been issued and reacquired in any
manner by the Corporation (excluding, until the Corporation elects to retire
them, shares which are held as treasury shares but including shares redeemed,
shares purchased and retired and shares which have been converted into shares of
Common Stock) will have the status of authorized and unissued shares of
Preferred Stock and may be reissued.
5. Voting Rights.
Unless and except to the extent otherwise required by law or provided in
the resolution or resolutions of the Board of Directors creating any series of
Preferred Stock pursuant to this Division I, the holders of the Preferred Stock
shall have no voting power with respect to any matter whatsoever. In no event
shall the Preferred Stock be entitled to more than one vote in respect of each
share of stock except as may be required by law or by this Restated Certificate
of Incorporation.
6. Outstanding or Reserved for Issuance Preferred Stock.
(a) Series A Junior Participating Preferred Stock
1. Designation and Amount.
The shares of such series shall be designated as "Series A Junior
Participating Preferred Stock" (the "Series A Preferred Stock") and the number
of shares constituting the Series A Preferred Stock shall be 350,000. Such
number of shares may be increased or decreased by resolution of the Board;
provided, that no decrease shall reduce the number of shares of Series A
Preferred Stock to a number less than the number of shares then outstanding plus
the number of shares reserved for issuance upon the exercise of outstanding
options, rights or warrants or upon the conversion of any outstanding securities
issued by the Corporation convertible into Series A Preferred Stock.
2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of any series
of Preferred Stock (or any similar stock) ranking prior and superior to the
Series A Preferred Stock with respect to dividends, the holders of shares of
Series A Preferred Stock, in preference to the holders of Common Stock, par
value $1.66-2/3 per share (the "Common Stock"), of the Corporation, and of any
other junior stock, shall be entitled to receive, when, as and if declared by
the Board of Directors out of funds legally available for the purpose, quarterly
dividends payable in cash on the first day of March, June, September and
December in each year (each such date being referred to herein as a "Quarterly
Dividend Payment Date"), commencing on the first Quarterly Dividend Payment Date
after the first issuance of a share or fraction of a share of Series A Preferred
Stock, in an amount per share (rounded to the nearest cent) equal to the greater
of (a) $31.00 or (b) subject to the provision for adjustment hereinafter set
forth, 100 times the aggregate per share amount of all cash dividends, and 100
times the aggregate per share amount (payable in kind) of all non-cash
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dividends or other distributions, other than a dividend payable in shares of
Common Stock or a subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the Common Stock since the
immediately preceding Quarterly Dividend Payment Date or, with respect to the
first Quarterly Dividend Payment Date, since the first issuance of any share or
fraction of a share of Series A Preferred Stock. In the event the Corporation
shall at any time declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or consolidation
of the outstanding shares of Common Stock (by reclassification or otherwise than
by payment of a dividend in shares of Common Stock) into a greater or lesser
number of shares of Common Stock, then in each such case the amount to which
holders of shares of Series A Preferred Stock were entitled immediately prior to
such event under clause (b) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on the Series
A Preferred Stock as provided in paragraph (A) of this Section immediately after
it declares a dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock); provided that, in the event no
dividend or distribution shall have been declared on the Common Stock during the
period between any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend of $31.00 per share on the Series A
Preferred Stock shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from the Quarterly Dividends Payment Date
next preceding the date of issue of such shares, unless the date of issue of
such shares is prior to the record date for the first Quarterly Dividend Payment
Date, in which case dividends on such shares shall begin to accrue from the date
of issue of such shares, or unless the date of issue is a Quarterly Dividend
Payment Date or is a date after the record date for the determination of holders
of shares of Series A Preferred Stock entitled to receive a quarterly dividend
and before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends
paid on the shares of Series A Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the determination
of holders of shares of Series A Preferred Stock entitled to receive payment of
a dividend or distribution declared thereon, which record date shall be not more
than 60 days prior to the date fixed for the payment thereof.
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3. Voting Rights.
The holders of shares of Series A Preferred Stock shall have the
following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each share of Series A Preferred Stock shall entitle the holder
thereof to 100 votes on all matters submitted to a vote of the stockholders
of the Corporation. In the event the Corporation shall at any time declare
or pay any dividend on the Common Stock payable in shares of Common Stock,
or effect a subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by payment of
a dividend in shares of Common Stock) into a greater or lesser number of
shares of Common Stock, then in each such case the number of votes per
share to which holders of shares of Series A Preferred Stock were entitled
immediately prior to such event shall be adjusted by multiplying such
number by a fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator
of which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
(B) Except as otherwise provided herein, in any Certificate of
Designations creating a series of Preferred Stock or any similar stock, or
by law, the holders of shares of Series A Preferred Stock and the holders
of shares of Common Stock and any other capital stock of the Corporation
having general voting rights shall vote together as one class on all
matters submitted to a vote of stockholders of the Corporation.
(C) Except as set forth herein, or as otherwise provided by law,
holders of Series A preferred Stock shall have no special voting rights and
their consent shall not be required (except to the extent they are entitled
to vote with holders of Common Stock as set forth herein) for taking any
corporate action.
4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Preferred Stock as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on shares of Series A
Preferred Stock outstanding shall have been paid in full, the Corporation
shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior (either as
to dividends or upon liquidation, dissolution or winding up) to
the Series A Preferred Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a parity (either
as to dividends or upon liquidation, dissolution or winding up)
with the Series A Preferred Stock, except dividends paid ratably
on the Series A Preferred Stock and all such parity stock on
which dividends are payable or in arrears in proportion to the
total amounts to which the holders of all such shares are then
entitled;
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(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred
Stock, provided that the Corporation may at any time redeem, purchase
or otherwise acquire shares of any such junior stock in exchange for
shares of any stock of the Corporation ranking junior (either as to
dividends or upon dissolution, liquidation or winding up) to the
Series A Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration
any shares of Series A Preferred Stock, or any shares of stock ranking
on a parity with the Series A Preferred Stock, except in accordance
with a purchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders of such shares
upon such terms as the Board of Directors, after consideration of the
respective annual dividend rates and other relative rights and
preferences of the respective series and classes, shall determine in
good faith will result in fair and equitable treatment among the
respective series or classes.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares
of stock of the Corporation unless the Corporation could, under paragraph
(A) of this Section 4, purchase or otherwise acquire such shares at such
time in such manner.
5. Reacquired Shares.
Any shares of Series A Preferred Stock purchased or otherwise acquired
by the Corporation in any manner whatsoever shall be retired and canceled
promptly after the acquisition thereof. All such shares shall upon their
cancellation become authorized but unissued shares of Preferred Stock and may be
reissued as part of a new series of Preferred Stock subject to the conditions
and restrictions on issuance set forth in this Restated Certificate of
Incorporation or in any Certificate of Designations creating a series of
Preferred Stock or any similar stock or as otherwise required by law.
6. Liquidation, Dissolution or Winding Up.
Upon any liquidation, dissolution or winding up of the Corporation, no
distribution shall be made (A) to the holders of shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution or winding up) to the
Series A Preferred Stock unless, prior thereto, the holders of shares of Series
A Preferred Stock shall have received $25,000 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment, provided that the holders of shares of Series A
Preferred Stock shall be entitled to receive an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 100
times the aggregate amount to be distributed per share to holders of shares of
Common Stock, or (B) to the holders of shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or winding up) with the
Series A Preferred Stock, except distributions made ratably on the Series A
Preferred Stock and all such parity stock in proportion to the total amounts to
which the holders of all such shares are entitled upon such liquidation,
dissolution or winding up. In the event the Corporation shall at any time
declare or pay
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any dividend on the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common Stock, then
in each such case the aggregate amount to which holders of shares of Series A
Preferred stock were entitled immediately prior to such event under the proviso
in clause (A) of the preceding sentence shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately prior to
such event.
7. Consolidation, Merger, etc.
In case the Corporation shall enter into any consolidation, merger,
combination or other transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities, cash and/or any other
property, then in any such case each share of Series A Preferred Stock shall at
the same time be similarly exchanged or changed into an amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 100
times the aggregate amount of stock, securities, cash and/or any other property
(payable in kind), as the case may be, into which or for which each share of
Common Stock is changed or exchanged. In the event the Corporation shall at any
time declare or pay any dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the amount set forth in the
preceding sentence with respect to the exchange or change of shares of Series A
Preferred Stock shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
8. No Redemption.
The shares of Series A Preferred Stock shall not be redeemable.
9. Rank.
The Series A Preferred Stock shall rank, with respect to the payment
of dividends and the distribution of assets, junior to all series of any other
class of the Corporation's Preferred Stock, unless the terms of any such series
shall provide otherwise.
10. Amendment.
This Restated Certificate of Incorporation shall not be amended in any
manner which would materially alter or change the powers, preferences or special
rights of the Series A Preferred Stock so as to affect them adversely without
the affirmative vote of the holders of at least two-thirds of the outstanding
shares of Series A Preferred Stock, voting together as a single class.
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(b) Auction Preferred Stock, Series C
PART I
1. Designation.
The designation of said series of Preferred Stock shall be Auction
Preferred Stock, Series C (the "Series C Stock"). The number of shares of Series
C Stock shall be 600. The stated value of the Series C Stock shall be $100,000
per share.
2. Dividends.
(a) The Holders (as defined in Section 8 of this Part I) shall be
entitled to receive; when and as declared by the Board of Directors (as defined
in Section 8 of this Part I) out of funds legally available therefor, cumulative
cash dividends, at the Applicable Rate (as defined in subparagraph (c)(i) of
this Section 2) per annum, determined as set forth below, and no more, payable
on the respective dates set forth below.
(b)(i) Dividends on shares of Series C Stock at the Applicable Rate
per annum shall accrue from the Date of Original Issue (as defined in Section 8
of this Part I). Accrued dividends shall be payable, when and as declared by the
Board of Directors, commencing on September 2, 1987, and on October 28, 1987
and on each succeeding seventh Wednesday thereafter, except that if:
(A)(l) the Securities Depository (as defined in
Section 1 of Part II of this paragraph 6(b) of Article Fourth)
shall not have advised the Trust Company (as defined in Section
8 of this Part I) at least five Business Days prior to such
Wednesday that it will make available to its participants and
members on Dividend Payment Dates, in funds immediately
available in New York City, the amount due as dividends on such
Dividend Payment Dates, and (2)(X) such Wednesday is not a
Business Day (as defined in Section 8 of this Part I), (Y) the
Thursday following such Wednesday is not a Business Day or (Z)
both the Tuesday and the Monday preceding such Wednesday are
not Business Days, then on the first Business Day that (i) is
preceded by a Business Day that is, or falls after, such
preceding Monday and (ii) is immediately followed by a Business
day; or
(B)(l) the Securities Depository shall have advised
the Trust Company at least five Business Days prior to such
Wednesday that it will make available to its participants and
members on Dividend Payment Dates, in funds immediately
available in New York City, the amount due as dividends on such
Dividend Payment Dates and (2)(X) such Wednesday is not a
Business Day or (Y) both the Tuesday and the Monday preceding
such Wednesday are not Business Days, then on the first
Business Day after such Wednesday that is preceded by a
Business Day that is, or falls after, such preceding Monday;
provided, however, that the Board of Directors, in the event of a change in law
lengthening the minimum holding period (currently found in Section 246(c) of the
Code (as defined in Section 8 of this Part I)) required for taxpayer's to be
entitled to the dividends received deduction on
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preferred stock held by nonaffiliated corporations (currently found in Section
243(a) of the Code), shall adjust the period of time between Dividend Payment
Dates (as hereinafter defined) so as, subject to clauses (A) and (B) of this
subparagraph (b)(i), to adjust uniformly the number of days (such number of days
without giving effect to such clauses (A) and (B) being hereinafter referred to
as "Dividend Period Days") in Dividend Periods (as defined in subparagraph
(c)(i) of this Section 2) commencing after the date of such change in law to
exceed the then current minimum holding period, provided that the number of
Dividend Period Days shall not exceed by more than nine days the length of such
then current minimum period and in no event shall exceed 98 days and that
dividends shall continue to be payable, subject to clauses (A) and (B), on
Wednesdays (each date of payment of dividends being herein referred to as a
"Dividend Payment Date" and the first Dividend Payment Date being herein
referred to as the "Initial Dividend Payment Date"). Upon any such change in the
number of Dividend Period Days as a result of a change in law, the Corporation
shall publish notice of such change in a newspaper of general circulation to the
financial community in The City of New York, New York, which carries financial
news and is customarily published on each Business Day and shall mail notice of
such change by first class mail, postage prepaid, to each Holder at such
Holder's address as the same appears on the stock register of the Corporation.
(ii) As long as the Applicable Rate is based on the results of an Auction
(as defined in Section 8 of this Part I), the Corporation shall pay to the
Paying Agent (as defined in Section 8 of this Part I) not later than 12:00 noon,
New York City time, on the Business Day next preceding each Dividend Payment
Date, an aggregate amount of funds available on the next Business Day in The
City of New York, New York, equal to the dividends to be paid to all Holders on
such Dividend Payment Date. All such moneys shall be held in trust for the
payment of such dividends by the Paying Agent for the benefit of the Holders
specified in subparagraph (iii) of this paragraph (b).
(iii) Each dividend shall be payable to the Holders as their names appear
on the stock register of the Corporation on the Business Day next preceding the
Dividend Payment Date thereof; provided, however, that if a Rate Adjustment
Event (as defined in Section 8 of this Part I) shall have occurred and shall not
have been cured by paying all dividends accrued and unpaid and unpaid redemption
payments, such dividend shall be paid to such Holders as their names appear on
the stock register of the Corporation on such date, not exceeding 15 days
preceding the payment date thereof, as may be fixed by the Board of Directors.
Dividends in 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
as their names appear on the stock register of the Corporation on such date, not
exceeding 15 days preceding the payment date thereof, as may be fixed by the
Board of Directors.
(c)(i) The dividend rate of shares of Series C Stock shall be 4.85% per
annum during the period from and after the Date of Original Issue to and
including the Initial Dividend Payment Date (the "Initial Dividend Period").
Commencing on the Initial Dividend Payment Date, the dividend rate on shares of
Series C Stock for each subsequent dividend period (hereinafter referred to as a
"Subsequent Dividend Period" and collectively as "Subsequent Dividend Periods";
and the Initial Dividend Period or any Subsequent Dividend Period being
hereinafter referred to as a "Dividend Period" and collectively as "Dividend
Periods") thereafter, which Subsequent Dividend Periods shall commence on the
day that is the last day of the preceding Dividend Period and shall end on and
include the next succeeding Dividend Payment date, shall be equal to the rate
per
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annum that results from implementation of the Auction Procedures (as defined in
Section 8 of this Part I); provided, however, that if a Rate Adjustment Event
shall have occurred and shall not have been cured by paying all accrued and
unpaid dividends and unpaid redemption payments prior to the first day of such
Subsequent Dividend Period, the dividend rate for such Subsequent Dividend
Period shall be a rate per annum equal to 175% of the 60-day "AA" Composite
Commercial Paper Rate (the rate per annum at which dividends are payable on
shares of Series C Stock for any Dividend Period being herein referred to as the
"Applicable Rate"). Any amount of such dividend or redemption price not paid
when due but paid within three business days after such due date shall incur a
late charge to be paid therewith and calculated for such period of nonpayment at
an annualized rate of 175% of the 60-day "AA" Composite Commercial Paper Rate
applied to the amount of such non-payment.
(ii) The amount of dividends per share accrued and payable on shares of
Series C Stock for each Dividend Period shall be computed by multiplying the
Applicable Rate for such Dividend Period by a fraction, the numerator of which
shall be the number of days in such Dividend Period (calculated by counting the
first day thereof but excluding the last day thereof) and the denominator of
which shall be 360 and applying the rate obtained against $100,000; and the
amount of dividends per share accrued for any part of any Dividend Period shall
be computed by multiplying the Applicable Rate for such Dividend Period by a
fraction the numerator of which shall be the number of days in such part of such
Dividend Period (calculated by counting the first day thereof but excluding the
last day thereof) and the denominator of which shall be 360 and applying the
rate obtained against $100,000.
(iii) The Applicable Rate for each Subsequent Dividend Period shall be
published not later than the fifth Business Day next succeeding the first day of
such Subsequent Dividend Period in a newspaper of general circulation to the
financial community in The City of New York, New York, which carries financial
news and is customarily published on each Business Day.
(d)(i) No full dividends shall be declared or paid or set apart for
payment on Preferred Stock of any series ranking, as to dividends, on a parity
with or junior to the Series C Stock for any period unless full cumulative
dividends have been or contemporaneously are declared and paid or declared and a
sum sufficient for the payment thereof set apart for such payment on the Series
C Stock for all Dividend Periods terminating on or prior to the date of payment
of such full cumulative dividends. When dividends are not paid in full, as
aforesaid, upon the Series C Stock and any other Preferred Stock ranking on a
parity as to dividends with the Series C Stock, all dividends declared upon the
Series C Stock and any other Preferred Stock ranking on a parity as to dividends
with the Series C Stock shall be declared pro rata so that the amount of
dividends declared per share on the Series C Stock and such other Preferred
Stock shall in all cases bear to each other the same ratio that accrued
dividends per share on the Series C Stock and such other Preferred Stock bear to
each other. Holders of Series C Stock shall not be entitled to any dividend,
whether payable in cash, property or stocks, in excess of the full cumulative
dividends, as herein provided, on the Series C Stock. No interest, or sum of
money in lieu of interest, shall be payable in respect of any dividend payments
on the Series C Stock which may be in arrears.
(ii) So long as any shares of Series C Stock are outstanding, no dividend
(other than a dividend in Common Stock or in any other stock ranking junior to
Series C stock as to dividends and upon liquidation and other than as provided
in subparagraph (i) of this paragraph (d)) shall be declared or paid or set
aside for payment or other distribution declared or made upon the
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Common Stock or upon any other stock ranking junior to or on a parity with the
Series C Stock as to dividends or upon liquidation, nor shall any Common Stock
or any other stock of the Corporation ranking junior to or on a parity with the
Series C Stock as to dividends or upon liquidation be redeemed, purchased or
otherwise acquired for any consideration (or any moneys paid to or made
available for a sinking fund for the redemption of any such stock) by the
Corporation (except by conversion into or exchange for stock of the Corporation
ranking junior to the Series C Stock as to dividends and upon liquidation)
unless, in each case, the full cumulative dividends on all outstanding shares of
Series C Stock shall have been paid for all past Dividend Periods.
3. Voting
The Series C Stock shall not have any voting powers, either full or
limited, except that:
(a) Unless the vote or consent of the holders of a greater number of shares
shall then be required by law, the consent of the holders of at least 66-2/3% of
all of the shares of Preferred Stock at the time outstanding, given in person or
by proxy, either in writing or by a vote at a meeting called for the purpose at
which the holders of shares of Preferred Stock shall vote together as a separate
class, shall be necessary for authorizing, effecting or validating the
amendment, alteration or repeal of any of the provisions of this Restated
Certificate of Incorporation or of any certificate amendatory thereof or
supplemental thereto (including any Certificate of Designations or any similar
document relating to any series of Preferred Stock) which would adversely affect
the powers, preferences, rights or privileges of the Preferred Stock; provided,
however, that if any such amendment, alteration or repeal would adversely affect
the powers, preferences, rights or privileges of one or more series of the
Preferred Stock, but shall not so affect the entire class, then only the shares
of the one or more series so affected shall be considered to be a separate class
entitled to vote upon or consent to such amendment, alteration or repeal;
(b) Unless the vote or consent of the holders of a greater number of shares
shall then be required by law, the consent of the holders of at least 66-2/3% of
all of the Series C Stock and all other series of Preferred Stock ranking on a
parity with the Series C Stock, either as to dividends or upon liquidation, at
the time outstanding, given in person or by proxy, either in writing or by a
vote at a meeting called for the purpose at which the holders of Series C Stock
and such other series of Preferred Stock shall vote together as a single class
without regard to series, shall be necessary for authorizing, effecting or
validating the creation, authorization or issue of any shares of any class of
stock of the Corporation ranking prior to the Series C Stock as to dividends or
upon liquidation, or the reclassification of any authorized stock of the
Corporation into any such prior shares, or the creation, authorization or issue
of any obligation or security convertible into or evidencing the right to
purchase any such prior shares; and
(c) If at the time of any annual meeting of stockholders for the election
of directors a default in preference dividends on the Preferred Stock shall
exist, the number of directors constituting the Board of Directors shall be
increased by two, and the holders of the Preferred Stock of all series shall
have the right at such meeting, voting together as a single class without regard
to series, to the exclusion of the holders of Common Stock, to elect two
directors of the Corporation to fill such newly created directorships. Such
right shall continue until there are no dividends in arrears upon the Preferred
Stock. Each director elected by the holders of shares of Preferred Stock (herein
called a "Preferred Director") shall continue to serve as such director for the
full term for
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which he shall have been elected, notwithstanding that prior to the end of such
term a default in preference dividends shall cease to exist. Any Preferred
Director may be removed by, and shall not be removed except by, the vote of the
holders of record of the outstanding shares of Preferred Stock, voting together
as a single class without regard to series, at a meeting of the stockholders, or
of the holders of shares of Preferred Stock, called for that purpose. So long as
a default in preference dividends on the Preferred Stock shall exist, (A) any
vacancy in the office of a Preferred Director may be filled (except as provided
in the following clause (B)) by an instrument in writing signed ny the remaining
Preferred Director and filed with the Corporation and (B) in the case of the
removal of any Preferred Director, the vacancy may be filled by the vote of the
holders of the outstanding shares of Preferred Stock, voting together as a
single class without regard to series, at the same meeting at which such removal
shall be voted. Each director appointed as aforesaid by the remaining Preferred
Director shall be deemed, for all purposes hereof, to be a Preferred Director.
Whenever the term of office of the Preferred Directors shall end and a default
in preference dividends shall no longer exist, the number of directors
constituting the Board of Directors shall be reduced by two. For the purposes
hereof, a "default in preference dividends" on the Preferred Stock shall be
deemed to have occurred whenever the amount of accrued dividends upon any series
of the Preferred Stock shall be equivalent to six full quarter-yearly dividends
(which, with respect to the Series C Stock, shall be deemed to be dividends in
respect of a number of Dividend Periods containing not less than 540 days) or
more, and, having so occurred, such default shall be deemed to exist thereafter
until, but only until, all accrued dividends on all shares of Preferred Stock of
each and every series then outstanding shall have been paid to the end of the
last preceding quarterly dividend period.
4. Redemption.
(a)(i) The Series C Stock may be redeemed, at the option of the
Corporation, as a whole or from time to time in part, on any Dividend Payment
Date at a redemption price of $100,000 per share plus an amount equal to accrued
and unpaid dividends thereon (whether or not earned or declared) to the date
fixed for redemption.
(ii) If fewer than all of the outstanding shares of Series C Stock are to
be redeemed pursuant to subparagraph (i) of this paragraph (a), the number of
shares to be redeemed shall be determined by the Board of Directors, and such
shares shall be redeemed pro rata from the Holders in proportion to the number
of such shares held by such Holders (with adjustments to avoid redemption of
fractional shares).
(b) If the Corporation shall redeem shares of Series C Stock pursuant to
paragraph (a) of this Section 4, notice of such redemption shall be given by
publication at least once in a newspaper printed in the English language and
customarily published on each Business Day and, whenever published, of general
circulation in Chicago, Illinois, such publication to be not less than 15 nor
more than 45 days prior to the date fixed for such redemption. Notice of such
redemption shall also be given by mailing the same by first class mail, postage
prepaid, not less than 15 nor more than 45 days prior to the date fixed for
redemption thereof, to each Holder of the shares to be redeemed, at such
Holder's address as the same appears on the stock register of the Corporation.
Each such notice shall state: (i) the redemption date; (ii) the number of shares
of Series C Stock to be redeemed; (iii) the redemption price plus the amount of
accrued and unpaid dividends to the redemption date; (iv) the place or places
where certificates for such shares of Series C Stock are to be surrendered for
payment of the redemption price; and (v) that dividends on the shares to be
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redeemed will cease to accrue on such redemption date. If fewer than all shares
held by any Holder are to be redeemed, the notice mailed to such Holder shall
also specify the number of shares to be redeemed from such Holder.
(c) Notwithstanding the provisions of paragraph (a) of this Section 4, if
any dividends on the Series C Stock are in arrears, no shares of Series C Stock
shall be redeemed unless all outstanding shares of Series C Stock are
simultaneously redeemed, and the Corporation shall not purchase or otherwise
acquire any shares of Series C Stock; provided, however, that the foregoing
shall not prevent the purchase or acquisition of shares of Series C Stock
pursuant to a purchase or exchange offer made on the same terms to Holders of
all outstanding shares of Series C Stock.
(d) If notice of redemption has been published under paragraph (b) of this
Section 4 or the Corporation has irrevocably authorized and directed the
Redemption Agent to begin promptly and complete such publication of notice, and
the Corporation has deposited in trust with the Redemption Agent funds necessary
for such redemption, from and after the later of the date of such notice or the
date such deposit is made the shares of Series C Stock called for redemption
shall no longer be deemed to be outstanding, and all rights of the Holders
thereof as stockholders of the Corporation (except the right to receive the
redemption price plus an amount equal to the accrued and unpaid dividends
thereon to the date fixed for redemption) shall cease. Upon surrender in
accordance with said notice of the certificates for any shares so redeemed
(properly endorsed or assigned for transfer, if the Board of Directors shall so
require and the notice shall so state), the redemption price set forth above
plus an amount equal to such accrued and unpaid dividends shall be paid by the
Redemption Agent to the Holders of the shares of Series C Stock subject to
redemption as set forth in paragraph (e) of this Section 4. In case fewer than
all of the shares represented by any such certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares without cost to
the Holder thereof.
(e) As long as the Applicable Rate is based on the results of an Auction,
the Corporation shall pay the applicable Redemption Deposit Amount (as defined
in Section 8 of this Part I) to the Redemption Agent, in funds available on the
next Business Day in The City of New York, New York, on the Business Day next
preceding the redemption date for disbursement to Holders as appropriate. All
such moneys shall be held in trust by the Redemption Agent for the benefit of
Holders of shares so to be redeemed.
5. Liquidation Rights.
(a) Upon the dissolution, liquidation or winding up of the Corporation,
the holders of the Series C Stock shall be entitled to receive out of the assets
of the Corporation, before any payment or distribution shall be made on the
Common Stock or on any other class of stock ranking junior to the Preferred
Stock upon liquidation, the amount of $100,000 per share, plus a sum equal to
all dividends (whether or not earned or declared) on such shares accrued and
unpaid thereon to the date of the final distribution.
(b) Neither the sale of all or substantially all the property or business
of the Corporation, nor the merger or consolidation of the Corporation into or
with any other corporation or the merger or consolidation of any other
corporation into or with the Corporation, shall be deemed to be a dissolution,
liquidation or winding up, voluntary or involuntary, for the purposes of this
Section 5.
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(c) After the payment to the holders of the Series C Stock of the full
preferential amounts provided for in this Section 5, the holders of Series C
Stock as such shall have no right or claim to any of the remaining assets of the
Corporation.
(d) In the event the assets of the Corporation available for distribution
to the holders of Series C Stock upon any dissolution, liquidation or winding
up of the Corporation, whether voluntary or involuntary, shall be insufficient
to pay in full all amounts to which such holders are entitled pursuant to
paragraph (a) of this Section 5, no such distribution shall be made on account
of any shares of any other class or series of Preferred Stock ranking on a
parity with the Series C Stock upon such dissolution, liquidation or winding up
unless proportionate distributive amounts shall be paid on account of the Series
C Stock, ratably, in proportion to the full distributable amounts for which
holders of all such parity shares are respectively entitled upon such
dissolution, liquidation or winding up.
(e) Upon the dissolution, liquidation or winding up of the Corporation,
the holders of shares of Series C Stock then outstanding shall be entitled to be
paid out of the assets of the Corporation available for distribution to its
stockholders all amounts to which such holders are entitled pursuant to
paragraph (a) of this Section 5 before any payment shall be made to the holders
of any class or series of capital stock of the Corporation ranking junior upon
liquidation to the Series C Stock.
6. Sinking or Retirement Fund.
The Series C Stock shall not be entitled to the benefit of a sinking or
retirement fund to be applied to the purchase or redemption of such stock.
7. Rank
For purposes of this paragraph 6(b) of Article Fourth, any stock of any
class or classes of the Corporation shall be deemed to rank:
(a) prior to the Series C Stock, either as to dividends or upon
liquidation, if the holders of such class or classes shall be entitled to the
receipt of dividends or of amounts distributable upon dissolution, liquidation
or winding up of the Corporation, as the case may be, in preference or priority
to the holders of Series C Stock;
(b) on a parity with the Series C Stock, either as to dividends or upon
liquidation, whether or not the dividend rates, dividend payments dates or
redemption or liquidation prices per share or sinking fund provisions, if any,
are different from those of the Series C Stock, if the holders of such stock
shall be entitled to the receipt of dividends or of amounts distributable upon
dissolution, liquidation or winding up of the Corporation, as the case may be,
in proportion to their respective dividend rates or liquidation prices, without
preference or priority, one over the other, as between the holders of such stock
and the holders of Series C Stock; and
(c) junior to the Series C Stock, either as to dividends or upon
liquidation, if such class shall be Common Stock or if the holders of Series C
Stock shall be entitled to receipt of dividends or of amounts distributable upon
dissolution, liquidation or winding up of the Corporation, as the case may be,
in preference or priority to the holders of shares of such class or classes.
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8. As used in Parts I and II of this paragraph 6(b) of Article Fourth,
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:
(a) "'AA' Composite Commercial Paper Rate," on any date, shall mean (i)
the interest equivalent of the 60-day rate on commercial paper placed on behalf
of issuers whose corporate bonds are rated "AA" by Standard & Poor's Corporation
or its successor, or the equivalent of such rating by another rating agency, as
such 60-day rate is made available on a discount basis or otherwise by the
Federal Reserve Bank of New York for the immediately preceding Business Day
prior to such date; or (ii) in the event that the Federal Reserve Bank of New
York does not make available such a rate, then the arithmetic average of the
interest equivalent of the 60-day rate on commercial paper placed on behalf of
such issuers, as quoted on a discount basis or otherwise by the Commercial Paper
Dealers to the Trust Company for the close of business on the immediately
preceding Business Day prior to such date. If any Commercial Paper Dealer does
not quote a rate required to determine the "AA" Composite Commercial Paper Rate,
the "AA" Composite Commercial Paper Rate shall be determined on the basis of the
quotation or quotations furnished by the remaining Commercial Paper Dealer or
Commercial Paper Dealers and any Substitute Commercial Paper Dealer or
Substitute Commercial Paper Dealers selected by the Corporation to provide such
rate or rates not being supplied by any Commercial Paper Dealer or Commercial
Paper Dealers, as the case may be, or, if the Corporation does not select any
such Substitute Commercial Paper Dealer or Substitute Commercial Paper Dealers,
by the remaining Commercial Paper Dealer or Commercial Paper Dealers. If the
Board of Directors shall make the adjustment referred to in the proviso of the
second sentence of subparagraph (b)(i) of Section 2 of this Part I, then (i) if
the Dividend Period Days shall be 70 or more days but fewer than 85 days, such
rate shall be the arithmetic average of the interest equivalent of the 60-day
and 90-day rates on such commercial paper, and (ii) if the Dividend Period Days
shall be 85 or more days but 98 or fewer days, such rate shall be the interest
equivalent of the 90-day rate on such commercial paper. For purposes of this
definition, the "interest equivalent" of a rate stated on a discount basis (a
"discount rate") for commercial paper of a given day's maturity shall be equal
to the quotient (rounded to the nearest one-thousandth (.001) of 1%) of (A) the
discount rate divided by (B) the difference between (x) 1.00 and (y) a fraction
the numerator of which shall be the product of the discount rate times the
number of days in which such commercial paper matures and the denominator of
which shall be 360.
(b) "Applicable Rate" shall have the meaning specified in subparagraph
(c)(i) of Section 2 of this Part I.
(c) "Auction" shall mean each periodic implementation of the Auction
Procedures.
(d) "Auction Procedures" shall mean the procedures for conducting Auctions
set forth in Part II hereof.
(e) "Board of Directors" shall mean the Board of Directors of the
Corporation or (except with respect to paragraph (c) of Section 3 of this Part
I) a duly authorized committee thereof.
(f) "Business Day" shall mean a day on which the New York Stock Exchange,
Inc. is open for trading and on which banks in The City of New York, New York
or in Chicago, Illinois, are not authorized by law to close.
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(g) "Code" shall mean the Internal Revenue Code of 1986.
(h) "Commercial Paper Dealers" shall mean Goldman, Sachs & Co., and
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Salomon Brothers Inc. and
Lehman Commercial Paper Incorporated or, in lieu of any thereof, their
respective affiliates or successors.
(i) "Date of Original Issue" shall mean the date on which the Corporation
originally issues shares of Series C Stock.
(j) "Dividend Payment Date" shall have the meaning specified in
subparagraph (b)(i) of Section 2 of this Part I.
(k) "Dividend Period" and "Dividend Periods" shall have the respective
meanings specified in subparagraph (c)(i) of Section 2 of this Part I.
(l) "Dividend Period Days" shall have the meaning specified in
subparagraph (b)(i) of Section 2 of this Part I.
(m) "Holder" shall mean a holder of shares of Series C Stock as such
holder's name appears on the stock register of the Corporation.
(n) "Initial Dividend Payment Date" shall have the meaning specified in
subparagraph (b)(i) of Section 2 of this Part I.
(o) "Initial Dividend Period" shall have the meaning specified in
subparagraph (c)(i) of Section 2 of this Part I.
(p) "Paying Agent" shall mean a bank or trust company appointed as such by
a resolution of the Board of Directors.
(q) "Rate Adjustment Event" shall mean any failure by the Corporation to
pay (i) to the Paying Agent on or within three Business Days after any Dividend
Payment Date the full amount of any dividend (whether or not earned or declared)
to be paid on such Dividend Payment Date on any share of Series C Stock or (ii)
to the Redemption Agent on or within three Business Days after any redemption
date the redemption price to be paid on such redemption date, plus an amount
equal to the accrued and unpaid dividends thereon (whether or not earned or
declared) to such redemption date, of any share of Series C Stock.
(r) "Redemption Agent" shall mean a bank or trust company appointed as
such by a resolution of the Board of Directors.
(s) "Redemption Deposit Amount" shall mean the product of (i) the number
of outstanding shares of Series C Stock to be redeemed times (ii) an amount
equal to the applicable redemption price plus an amount equal to accrued and
unpaid dividends (whether or not earned or declared) to the date fixed for
redemption.
(t) "Subsequent Dividend Period" and "Subsequent Dividend Periods" shall
have the respective meanings specified in subparagraph (c)(i) of Section 2 of
this Part I.
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(u) "Substitute Commercial Paper Dealer" shall mean The First Boston
Corporation or Morgan Stanley & Co. Incorporated, or their respective affiliates
or successors; provided that neither such dealer nor any of its affiliates shall
be a Commercial Paper Dealer.
(v) "Trust Company" shall mean a bank or trust company appointed as such
by a resolution of the Board of Directors.
PART II
1. Certain Definitions.
Capitalized terms not defined in this Section I shall have the respective
meanings specified in Part I of this paragraph 6(b) of Article Fourth. As used
in this Part II, the following terms shall have the following meanings, unless
the context otherwise requires:
(a) "'AA' Rate Multiple," on any Auction Date, shall mean the percentage
determined as set forth below based on the prevailing rating of the Series C
Stock in effect at the close of business on the Business Day immediately
preceding such Auction Date:
Prevailing Rating Percentage
----------------- ----------
AA/aa or Above 110%
A/a 120%
BBB/baa 130%
Below BBB/Baa 175%
For purposes of this definition, the "prevailing rating" of the Series C
Stock shall be (i) AA/aa or Above, if the Series C Stock has a rating of AA- or
better by Standard & Poor's Corporation or its successor ("S&P") or aa3 or
better by Moody's Investors Service, Inc. or its successor ("Moody's"), or the
equivalent of either or both of such ratings by a substitute rating agency or
substitute rating agencies selected as provided below, (ii) if not AA/aa or
Above, then A/a, if the Series C Stock has a rating of A- or better and lower
than AA- by S&P or a3 or better and lower than aa3 by Moody's or the equivalent
of either or both of such ratings by a substitute rating agency or substitute
rating agencies selected as provided below, (iii) if not AA/aa or Above or A/a,
then BBB/baa, if the Series C Stock has a rating of BBB- or better and lower
than A- by S&P or baa3 or better and lower than a3 by Moody's or the equivalent
of either or both of such ratings by a substitute rating agency or substitute
rating agencies selected as provided below and (iv) if not AA/aa or Above, A/a
or BBB/baa, then Below BBB/baa. The Corporation shall take all reasonable
action necessary to enable S&P and Moody's to provide a rating for the Series
C Stock. If S&P or Moody's or both shall not make such a rating available,
Goldman, Sachs & Co. and Merrill Lynch, Pierce, Fenner & Smith Incorporated or
their successors shall select a nationally recognized securities rating agency
or two nationally recognized securities rating agencies to act as substitute
rating agency or substitute rating agencies, as the case may be.
(b) "Affiliate" shall mean any Person known to the Trust Company to be
controlled by, in control of or under common control with the Corporation.
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(c) "Agent Member" shall mean the member of the Securities Depository that
will act on behalf of a Bidder and is identified as such in such Bidder's
Purchaser's Letter.
(d) "Auction" shall mean the periodic implementation of the procedures set
forth in this Part II.
(e) "Auction Date" shall mean the Business Day next preceding a Dividend
Payment Date.
(f) "Available Series C Stock" shall have the meaning specified in
paragraph (a) of Section 4 of this Part II.
(g) "Bid" and "Bids" shall have the respective meanings specified in
paragraph (a) of Section 2 of this Part II.
(h) "Bidder" and "Bidders" shall have the respective meanings specified in
paragraph (a) of Section 2 of this Part II.
(i) "Broker-Dealer" shall mean any broker-dealer, or other entity
permitted by law to perform the function required of a Broker-Dealer in this
Part II, that is a member of, or a participant in, the Securities Depository,
and that has been selected by the Corporation and has entered into a
Broker-Dealer Agreement with the Trust Company that remains effective.
(j) "Broker-Dealer Agreement" shall mean an agreement between the Trust
Company and a Broker-Dealer pursuant to which such Broker-Dealer agrees to
follow the procedures specified in this Part II.
(k) "Existing Holder," when used with respect to shares of Series C Stock,
shall mean a Person who has signed a Purchaser's Letter and is listed as the
beneficial owner of such shares of Series C Stock in the records of the Trust
Company.
(l) "Hold Order" and "Hold Orders" shall have the respective meanings
specified in paragraph (a) of Section 2 of this Part II.
(m) "Maximum Rate," on any Auction Date, shall mean the product of the
"AA" Composite Commercial Paper Rate times the "AA" Rate Multiple.
(n) "Order" and "Orders" shall have the respective meanings specified in
paragraph (a) of Section 2 of this Part II.
(o) "Outstanding" shall mean, as of any date, shares of Series C Stock
theretofore issued by the Corporation except, without duplication, (i) any
shares of Series C Stock theretofore canceled or delivered to the Trust Company
for cancellation or redeemed by the Corporation or as to which the Corporation
shall have published a notice of redemption or irrevocably authorized and
directed the Redemption Agent to begin and promptly complete such publication of
notice, and deposited in trust with the Redemption Agent funds necessary for
such redemption in accordance with this Restated Certificate of Incorporation,
(ii) any shares of Series C Stock as to which the Corporation or any Affiliate
thereof (other than a Broker-Dealer Affiliate) shall be an Existing Holder and
(iii)
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any shares of Series C Stock represented by any certificate in lieu of which a
new certificate has been executed and delivered by the Corporation.
(p) "Person" shall mean and include an individual, a partnership, a
corporation, a trust, an unincorporated association, a joint venture or other
entity or a government or any agency or political subdivision thereof.
(q) "Potential Holder" shall mean any Person, including any Existing
Holder, (i) who shall have executed a Purchaser's Letter and (ii) who may be
interested in acquiring shares of Series C Stock (or, in the case of an Existing
Holder, additional shares of Series C Stock).
(r) "Purchaser's Letter" shall mean a Master Purchaser's Letter, the form
of which is attached hereto, addressed to the Corporation, the Trust Company and
an Agent Member in which a Person agrees, among other things, to offer to
purchase, to purchase, to offer to sell and/or to sell shares of Series C Stock
as set forth in this Part II, or a similar letter containing substantially the
same information and representations, or such other letter as the Board of
Directors shall approve.
(s) "Securities Depository" shall mean The Depository Trust Company and
its successors and assigns or any other securities depository selected by the
Corporation which agrees to follow the procedures required to be followed by
such securities depository in connection with shares of Series C Stock.
(t) "Sell Order" and "Sell Orders" shall have the respective meanings
specified in paragraph (a) of Section (2) of this Part II.
(u) "Submission Deadline" shall mean 12:30 P.M., New York City time, on
any Auction Date or such other time on any Auction Date by which Broker-Dealers
are required to submit Orders to the Trust Company as specified by the Trust
Company from time to time.
(v) "Submitted Bid" and "Submitted Bids" shall have the respective
meanings specified in paragraph (a) of Section 4 of this Part II.
(w) "Submitted Hold Order" and "Submitted Hold Orders" shall have the
respective meanings specified in paragraph (a) of Section 4 of this Part II.
(x) "Submitted Order" and "Submitted Orders" shall have the respective
meanings specified in paragraph (a) of Section 4 of this Part II.
(y) "Submitted Sell Order" and "Submitted Sell Orders" shall have the
respective meanings specified in paragraph (a) of Section 4 of this Part II.
(z) "Sufficient Clearing Bids" shall have the meaning specified in
paragraph (a) of Section 4 of this Part II.
(aa) "Winning Bid Rate" shall have the meaning specified in paragraph (a)
of Section 4 of this Part II.
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2. Orders by Existing Holders and Potential Holders.
(a) On or prior to the Submission Deadline on each Auction Date:
(i) each Existing Holder may submit to a Broker-Dealer information as to:
(A) the number of Outstanding shares, if any, of Series C Stock
held by such Existing Holder with such Existing Holder desires to
continue to hold without regard to the Applicable Rate for the
next succeeding Dividend Period;
(B) the number of Outstanding shares, if any, of Series C Stock
that such Existing Holder desires to continue to hold if the
Applicable Rate for the next succeeding Dividend Period shall
not be less than the rate per annum specified by such Existing
Holder; and/or
(C) the number of Outstanding shares, if any, of Series C Stock
held by such Existing Holder which such Existing Holder offers to
sell without regard to the Applicable Rate for the next
succeeding Dividend Period; and
(ii) one or more Broker-Dealers, using lists of Potential Holders, shall in
good faith for the purpose of conducting a competitive Auction in a
commercially reasonable manner, contact Potential Holders, including
Persons that are not Existing Holders, on such lists to determine the
number of shares, if any, of Series C Stock which each such Potential
Holder offers to purchase, provided that the Applicable Rate for the next
succeeding Dividend Period shall not be less than the rate per annum
specified by such Potential Holder.
For the purposes hereof, the communication to a Broker-Dealer of
information referred to in clause (i)(A), (i)(B), (i)(C) or (ii) of this
paragraph (a) is hereinafter referred to as an "Order" and collectively as
"Orders" and each Existing Holder and each Potential Holder placing an Order is
hereinafter referred to as a "Bidder" and collectively as "Bidders"; an Order
containing the information referred to in clause (i)(A) of this paragraph (a) is
hereinafter referred to as a "Hold Order" and collectively as "Hold Orders"; an
Order containing the information referred to in clause (i)(B) or (ii) of this
paragraph (a) is hereinafter referred to as a "Bid" and collectively as "Bids";
and an Order containing the information referred to in clause (i)(C) of this
paragraph (a) is hereinafter referred to as a "Sell Order" and collectively as
"Sell Orders."
(b)(i) A Bid by an Existing Holder shall constitute an irrevocable offer
to sell:
(A) the number of Outstanding shares of Series C Stock specified
in such Bid if the Applicable Rate determined on such Auction
Date shall be less than such specified rate; or
(B) such number or a lesser number of Outstanding shares of
Series C Stock to be determined as set forth in subparagraph
(a)(iv) of Section 5 of this Part II if the Applicable Rate
determined on such Auction Date shall be equal to such
specified rate; or
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(C) a lesser number of Outstanding shares of Series C Stock to
be determined as set forth in paragraph (b)(iii) of Section 5 of this
Part II if such specified rate shall be higher than the Maximum Rate
and Sufficient Clearing Bids do not exist.
(ii) A Sell Order by an Existing Holder shall constitute an irrevocable
offer to sell:
(A) the number of Outstanding shares of Series C Stock specified in
such Sell Order; or
(B) such number or a lesser number of Outstanding shares of Series C
Stock as set forth in subparagraph (b)(iii) of Section 5 of this Part
II if Sufficient Clearing Bids do not exist.
(iii) A Bid by a Potential Holder shall constitute an irrevocable offer to
purchase:
(A) the number of Outstanding shares of Series C Stock specified in
such Bid if the Applicable Rate determined on such Auction Date shall
be higher than such specified rate; or
(B) such number or a lesser number of Outstanding shares of Series C
Stock as set forth in subparagraph (a)(v) of Section 5 of this Part II
if the Applicable Rate determined on such Auction Date shall be equal
to such specified rate.
3. Submission of Orders by Broker-Dealers to Trust Company.
(a) Each Broker-Dealer shall submit in writing to the Trust Company prior
to the Submission Deadline on each Auction Date all Orders obtained by such
Broker-Dealer and specifying with respect to each Order:
(i) the name of the Bidder placing such Order;
(ii) the aggregate number of shares of Series C Stock that are the
subject of such Order;
(iii) to the extent that such Bidder is an Existing Holder:
(A) the number of shares, if any, of Series C Stock subject to
any Hold Order placed by such Existing Holder;
(B) the number of shares, if any, of Series C Stock subject to
any Bid placed by such Existing Holder and the rate specified in
such Bid; and
(C) the number of shares, if any, of Series C Stock subject to
any sell Order placed by such Existing Holder; and
(iv) to the extent such Bidder is a Potential Holder, the rate
specified in such Potential Holder's Bid.
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(b) If any rate specified in any Bid contains more than three figures to
the right of the decimal point, the Trust Company shall round such rate up to
the next highest one thousandth (.001) of 1%.
(c) If an Order or Orders covering all of the Outstanding shares of
Series C Stock held by any Existing Holder is not submitted to the Trust Company
prior to the Submission Deadline, the Trust Company shall deem a Hold Order
to have been submitted on behalf of such Existing Holder covering the number of
Outstanding shares of Series C Stock held by such Existing Holder and not
subject to Orders submitted to the Trust Company.
(d) If one or more Orders covering in the aggregate more than the
number of Outstanding shares of Series C Stock held by any Existing Holder are
submitted to the Trust Company, such Orders shall be considered valid as follows
and in the following order of priority:
(i) all Hold Orders shall be considered valid, but only up to and
including in the aggregate the number of shares of Series C Stock held
by such Existing Holder, and, solely for purposes of allocating
compensation among the Broker-Dealers submitting Hold Orders, if the
number of shares of Series C Stock subject to such Hold Orders exceeds
the number of shares of Series C Stock held by such Existing Holder,
the number of shares subject to each Hold Order shall be reduced pro
rata to cover the number of shares of Series C Stock held by such
Existing Holder;
(ii)(A) any Bid shall be considered valid up to and including the
excess of the number of Outstanding shares of Series C Stock held by
such Existing Holder over the number of shares of Series C Stock
subject to any Hold Order referred to in subparagraph (i) above;
(B) subject to clause (A), if more than one Bid with the same rate is
submitted on behalf of such Existing Holder and the number of shares
of Series C Stock subject to such Bids is greater than such excess,
such Bids shall be considered valid up to the amount of such excess,
and, solely for purposes of allocating compensation among the Broker-
Dealers submitting Bids with the same rate, the number of shares of
Series C Stock subject to each Bid with the same rate shall be reduced
pro rata to cover the number of shares of Series C Stock equal to such
excess;
(C) subject to clause (A), if more than one Bid with different rates
is submitted on behalf of such Existing Holder, such Bids shall be
considered valid in the ascending order of their respective rates up
to the amount of such excess; and
(D) in any such event the number, if any, of such shares subject to
Bids not valid under this subparagraph (ii) shall be treated as the
subject of a Bid by a Potential Holder; and
(iii) all Sell Orders shall be considered valid but only up to and
including in the aggregate the excess of the number of Outstanding shares of
Series C Stock held by such Existing Holder over the sum of the shares of Series
C Stock subject to Hold Orders referred to in subparagraph (i) and valid Bids by
Existing Holders referred to in subparagraph (ii) above.
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(e) If more than one Bid is submitted on behalf of any Potential Holder,
each Bid submitted shall be a separate bid with the rate therein specified.
4. Determination of Sufficient Clearing Bids, Winning Bid Rate and
Applicable Rate.
(a) Not earlier than the Submission Deadline on each Auction Date, the
Trust Company shall assemble all Orders submitted or deemed submitted to it by
the Broker-Dealers (each such Order as submitted or deemed submitted by a
Broker-Dealer being hereinafter referred to individually as a "Submitted Hold
Order," a "Submitted Bid" or a "Submitted Sell Order," as the case may be, or as
a "Submitted Order" and collectively as "Submitted Hold Orders," "Submitted
Bids" or "Submitted Sell Orders," as the case may be, or as "Submitted Orders")
and shall determine:
(i) the excess of the total number of Outstanding shares of Series C
Stock over the number of Outstanding shares of Series C Stock that are the
subject of Submitted Hold Orders (such excess being hereinafter referred to
as the "Available Series C Stock");
(ii) from the Submitted Orders whether:
(A) the number of Outstanding shares of Series C Stock that are
the subject of Submitted Bids by Potential Holders specifying one
or more rates equal to or lower than the Maximum Rate exceeds or
is equal to the sum of:
(I) the number of Outstanding shares of Series C Stock that
are the subject of Submitted Bids by Existing Holders
specifying one or more rates higher than the Maximum Rate,
and
(II) the number of Outstanding shares of Series C Stock
that are subject to Submitted Sell Orders
(in the event of such excess or such equality (other than because
the sum of the number of shares of Series C Stock in clauses (I)
and (II) above is zero because all of the Outstanding shares of
Series C Stock are the subject of Submitted Hold Orders), such
Submitted Bids in clause (A) above being hereinafter referred to
collectively as "Sufficient Clearing Bids"); and
(iii) if Sufficient Clearing Bids exist, the lowest rate
specified in the Submitted Bids (the "Winning Bid Rate") which
if:
(A)(I) each Submitted Bid from Existing Holders specifying
such lowest rate and (II) all other Submitted Bids from Existing
Holders specifying lower rates were accepted, thus entitling such
Existing Holders to continue to hold the shares of Series C Stock
that are the subject of such Submitted Bids; and
(B)(I) each Submitted Bid from Potential Holders specifying
such lowest rate and (II) all other Submitted Bids from
Potential Holders specifying lower rates were accepted, thus
entitling the Potential Holders to purchase the shares of Series
C Stock that are the subject of those Submitted Bids,
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would result in such Existing Holders described in clause (A) continuing to hold
an aggregate number of Outstanding shares of Series C Stock which, when added to
the number of Outstanding shares of Series C Stock to be purchased by such
Potential Holders described in clause (B), would equal not less than the
Available Series C Stock.
(b) Promptly after the Trust Company has made the determinations pursuant
to paragraph (a) of this Section 4, the Trust Company shall advise the
Corporation of the "AA" Composite Commercial Paper Rate and the Maximum Rate
and, based on such determinations, the Applicable Rate for the next succeeding
Dividend Period as follows:
(i) if Sufficient Clearing Bids exist, that the Applicable Rate
for the next succeeding Dividend Period shall be equal to the
Winning Bid Rate so determined;
(ii) if Sufficient Clearing Bids do not exist (other than because
all of the Outstanding shares of Series C Stock are the subject
of Submitted Hold Orders), that the Applicable Rate for the next
succeeding Dividend Period shall be equal to the Maximum Rate; or
(iii) if all the Outstanding shares of Series C Stock are the
subject of Submitted Hold Orders, that the Applicable Rate for
the next succeeding Dividend Period shall be equal to 59% of the
"AA" Composite Commercial Paper Rate.
5. Acceptance and Rejection of Submitted Bids and Submitted Sell Orders
and Allocation of Shares.
Based on the determinations made pursuant to paragraph (a) of Section 4 of
this Part II, the Submitted Bids and Submitted Sell Orders shall be accepted or
rejected and the Trust Company shall take such other action as set forth below:
(a) If Sufficient Clearing Bids have been made, subject to the provisions
of paragraphs (c), (d) and (e) of this Section 5, Submitted Bids and Submitted
Sell Orders shall be accepted or rejected as follows in the following order of
priority and all other Submitted Bids shall be rejected:
(i) the Submitted Sell Orders of Existing Holders shall be
accepted and the Submitted Bid of each of the Existing Holders
specifying any rate that is higher than the Winning Bid Rate
shall be rejected, thus requiring each such Existing Holder to
sell the shares of Series C Stock that are the subject of such
Submitted Bid;
(ii) the Submitted Bid of each of the Existing Holders specifying
any rate that is lower than the Winning Bid Rate shall be
accepted, thus entitling each such Existing Holder to continue to
hold the shares of Series C Stock that are the subject of each
Submitted Bid;
(iii) the Submitted Bid of each of the Potential Holders
specifying any rate that is lower than the Winning Bid Rate shall
be accepted;
(iv) the Submitted Bid of each of the Existing Holders specifying
a rate that is equal to the Winning Bid Rate shall be accepted,
thus entitling each such Existing Holder
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to continue to hold the shares of Series C Stock that are the
subject of such Submitted Bid, unless the number of Outstanding
shares of Series C Stock subject to all such Submitted Bids shall
be greater than the number of shares of Series C Stock
("remaining shares") equal to the excess of the Available Series
C Stock over the number of shares of Series C Stock subject to
Submitted Bids described in subparagraphs (ii) and (iii) of this
paragraph (a), in which event the Submitted Bids of each such
Existing Holder shall be rejected, and each such Existing Holder
shall be required to sell shares of Series C Stock, but only in
an amount equal to the difference between (A) the number of
Outstanding shares of Series C Stock then held by such Existing
Holder subject to such Submitted Bid and (B) the number of shares
of Series C Stock obtained by multiplying the number of remaining
shares by a fraction the numerator of which shall be the number
of Outstanding shares of Series C Stock held by such Existing
Holder subject to such Submitted Bid and the denominator of which
shall be the sum of the number of Outstanding shares of Series C
Stock subject to such Submitted Bids made by all such Existing
Holders that specified a rate equal to the Winning Bid Rate; and
(v) the Submitted Bid of each of the Potential Holders
specifying a rate that is equal to the Winning Bid Rate shall be
accepted but only in an amount equal to the number of shares of
Series C Stock obtained by multiplying the difference between the
Available Series C Stock and the number of shares of Series C
Stock subject to Submitted Bids described in subparagraphs (ii),
(iii) and (iv) of this paragraph (a) by a fraction the numerator
of which shall be the number of Outstanding shares of Series C
Stock subject to such Submitted Bid and the denominator of which
shall be the sum of the number of Outstanding shares of Series C
Stock subject to such Submitted Bids made by all such Potential
Holders that specified a rate equal to the Winning Bid Rate.
(b) If Sufficient Clearing Bids have not been made (other than because all
of the Outstanding shares of Series C Stock are subject to Submitted Hold
Orders), subject to the provisions of paragraphs (c), (d) and (e) of this
Section 5, Submitted Orders shall be accepted or rejected as follows in the
following order of priority and all other Submitted Bids shall be rejected:
(i) the Submitted Bid of each Existing Holder specifying any
rate that is equal to or lower than the Maximum Rate shall be
accepted, thus entitling such Existing Holder to continue to hold
the shares of Series C Stock that are the subject of such
Submitted Bid;
(ii) the Submitted Bid of each Potential Holder specifying any
rate that is equal to or lower than the Maximum Rate shall be
accepted; and
(iii) the Submitted Bids of each Existing Holder specifying any
rate that is higher than the Maximum Rate shall be rejected and
the Submitted Sell Orders of each Existing Holder shall be
accepted, in both cases only in an amount equal to the difference
between (A) the number of Outstanding shares of Series C Stock
then held by such Existing Holder subject to such Submitted Bid
or Submitted Sell Order and (B) the number of shares of Series C
Stock obtained by multiplying the difference between the
Available Series C Stock and the aggregate number of shares
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of Series C Stock subject to Submitted Bids described in
subparagraphs (i) and (ii) of this paragraph (b) by a fraction
the numerator of which shall be the number of Outstanding shares
of Series C Stock held by such Existing Holder subject to such
Submitted Bid or Submitted Sell Order and the denominator of
which shall be the number of Outstanding shares of Series C Stock
subject to all such Submitted Bids and Submitted Sell Orders.
(c) If all of the Outstanding shares of Series C Stock are the subject of
Submitted Hold Orders, all Submitted Bids shall be rejected.
(d) If, as a result of the procedures described in paragraph (a) or (b) of
this Section 5, any Existing Holder would be entitled or required to sell, or
any Potential Holder would be entitled or required to purchase, a fraction of a
share of Series C Stock on any Auction Date, the Trust Company, in such manner
as it shall determine in its sole discretion, shall round up or down the number
of shares of Series C Stock to be purchased or sold by any Existing Holder or
Potential Holder on such Auction Date so that the number of shares purchased or
sold by each Existing Holder or Potential Holder on such Auction Date shall be
whole shares of Series C Stock.
(e) If, as a result of the procedures described in paragraph (a) of this
Section 5, any Potential Holder would be entitled or required to purchase less
than a whole share of Series C Stock on any Auction Date, the Trust Company, in
such manner as it shall determine in its sole discretion, shall allocate shares
for purchase among Potential Holders so that only whole shares of Series C Stock
are purchased on such Auction Date by any Potential Holder, even if such
allocation results in one or more of such Potential Holders not purchasing
shares of Series C Stock on such Auction Date.
(f) Based on the results of each Auction, the Trust Company shall determine
the aggregate number of shares of Series C Stock to be purchased and the
aggregate number of shares of Series C Stock to be sold by Potential Holders and
Existing Holders on whose behalf each Broker-Dealer submitted Bids or Sell
Orders and, with respect to each Broker-Dealer, to the extent that such
aggregate number of shares to be purchased and such aggregate number of shares
to be sold differ, determine to which other Broker-Dealer or Broker-Dealers
acting for one or more purchasers such Broker-Dealer shall deliver, or from
which other Broker-Dealer or Broker-Dealers acting for one or more sellers such
Broker-Dealer shall receive, as the case may be, shares of Series C Stock.
6. Miscellaneous.
(a) The Board of Directors may interpret the provisions of this Part II to
resolve any inconsistency or ambiguity which may arise or be revealed in
connection with the Auction Procedures provided for herein, and if such
inconsistency or ambiguity reflects an inaccurate provision hereof, the Board of
Directors may, in appropriate circumstances, authorize the filing of a
Certificate of Correction or Certificate of Amendment.
(b) So long as the Applicable Rate is based on the results of an Auction,
an Existing Holder (i) may sell, transfer or otherwise dispose of shares of
Series C Stock only pursuant to a Bid or Sell Order in accordance with the
procedures described in this Part II or to or through a Broker-Dealer or to a
Person that has delivered a signed copy of a Purchaser's Letter to the Trust
Company, provided that in the case of all transfers other than pursuant to
Auctions such Existing Holder or
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its Broker-Dealer advises the Trust Company of such transfer, and (ii) shall
have the ownership of the shares of Series C Stock held by it maintained in book
entry form by the Securities Depository in the account of its Agent Member,
which in turn will maintain records of such Existing Holder's beneficial
ownership.
(c) Neither the Corporation nor any affiliate thereof may submit an Order
in any Auction. Any Broker-Dealer that is an affiliate of the Corporation may
not submit Bids to purchase shares of Series C Stock in Auctions for its own
account, and if such affiliated Broker-Dealer has otherwise acquired shares for
its own account, it must submit a Sell Order in the next Auction with respect to
such shares.
(d) The Trust Company shall reject any Submitted Order of the Corporation
or an Affiliate, except for Sell Orders of affiliated Broker-Dealers.
(e) From and after the occurrence of a Rate Adjustment Event, shares of
Series C Stock shall be registered for transfer or exchange and new certificates
issued upon surrender of the old certificates deemed by the Trust Company (or
any other transfer agent or registrar appointed by the Corporation) properly
endorsed for transfer with all necessary endorsers' signatures guaranteed in
such manner and form as the Trust Company (or such other transfer agent or
registrar) may require by a guarantor reasonably believed by the Trust Company
(or such other transfer agent or registrar) to be responsible, accompanied by
such assurances as the Trust Company (or such other transfer agent or registrar)
shall deem necessary or appropriate to evidence the genuineness and
effectiveness of each necessary endorsement and satisfactory evidence of
compliance with all applicable laws relating to the collection of taxes or funds
necessary for the payment of such taxes.
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TO BE SUBMITTED TO YOUR BROKER-DEALER WHO WILL THEN DELIVER COPIES ON YOUR
BEHALF TO THE RESPECTIVE TRUST COMPANIES.
Master Purchaser's Letter
Relating to Securities Involving Rate Settings through Auctions
To: The Corporation
The Trust Company
A Broker-Dealer
An Agent Member
Other Persons
1. This letter is designed to apply to auctions for publicly or privately
offered debt or equity securities ("Securities") of any issuer ("Corporation")
which are described in any final prospectus or other offering materials relating
to such Securities as the same may be amended or supplemented (collectively,
with respect to the particular Securities concerned, the "Prospectus") and which
involve periodic rate settings through auctions ("Auctions"). This letter shall
be for the benefit of any Corporation and of any trust company or auction agent
(collectively, "trust company"), broker-dealer, agent member, securities
depository or other interested person in connection with any Securities and
related Auctions (it being understood that such persons may be required to
execute specified agreements and nothing herein shall alter such requirements).
The terminology used herein is intended to be general in its application and not
to exclude any Securities in respect of which (in the Prospectus or otherwise)
alternative terminology is used.
2. We may from time to time offer to purchase, purchase, offer to sell
and/or sell Securities of any Corporation as described in the Prospectus
relating thereto. We agree that this letter shall apply to all such purchases,
sales and offers and to Securities owned by us. We understand that the
dividend/interest rate on Securities may be based from time to time on the
results of Auctions as set forth in the Prospectus.
3. We agree that any bid or sell order, placed by us shall constitute an
irrevocable offer by us to purchase or sell the Securities subject to such bid
or sell order, or such lesser amount of Securities as we shall be required to
sell or purchase as a result of such Auction, at the applicable price, all as
set forth in the Prospectus, and that if we fail to place a bid or sell order
with respect to Securities owned by us with a broker-dealer on any auction date,
or a broker-dealer to which we communicate a bid or sell order fails to submit
such bid or sell order to the trust company concerned, we shall be deemed to
have placed a hold order with respect to such Securities as described in the
Prospectus. We authorize any broker-dealer that submits a bid or sell order as
our agent in Auctions to execute contracts for the sale of Securities covered by
such bid or sell order. We recognize that the payment by such broker-dealer for
Securities purchased on our behalf shall not relieve us of any liability to such
broker-dealer for payment for such Securities.
4. We agree that, during the applicable period as described in the
Prospectus, dispositions of Securities can be made only in the denominations set
forth in the Prospectus and we will sell, transfer or otherwise dispose of any
Securities held by us from time to time only pursuant to a bid or sell order
placed in an Auction, to or through a broker-dealer or, when permitted in the
Prospectus, to a person that has signed and delivered, or caused to be delivered
on its behalf, to the applicable trust company a letter substantially in the
form of this letter (or
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other applicable purchaser's letter), provided that in the case of all transfers
other than pursuant to Auctions we or our broker-dealer or our agent member
shall advise such trust company of such transfer. We understand that a
restrictive legend will be placed on certificates representing the Securities
and stop-transfer instructions will be issued to the transfer agent and/or
registrar, all as set forth in the Prospectus. We agree to comply with any other
transfer restrictions or other related procedures as described in the
Prospectus.
5. We agree that, during the applicable period as described in the
Prospectus, ownership of Securities shall be represented by a global certificate
registered in the name of the applicable securities depository or its nominee,
that we will not be entitled to receive any certificate representing the
Securities and that our ownership of any Securities will be maintained in book
entry form by the securities depository for the account of our agent member,
which in turn will maintain records of our beneficial ownership. We authorize
and instruct our agent member to disclose to the applicable trust company such
information concerning our beneficial ownership of Securities as such trust
company shall request.
6. We acknowledge that partial deliveries of Securities purchased in
Auctions may be made to us and such deliveries shall constitute good delivery as
set forth in the Prospectus.
7. This letter is not a commitment by us to purchase any Securities.
8. This letter supersedes any prior-dated version of this master
purchaser's letter, and supplements any prior- or post-dated purchaser's letter
specific to particular Securities; any recipient of this letter may rely upon it
until such recipient has received a signed writing amending or revoking this
letter.
9. The descriptions of Auction procedures set forth in each applicable
Prospectus are incorporated by reference herein and, in case of any conflict
between this letter and any such description, such description shall control.
10. Any xerographic or other copy of this letter shall be deemed of equal
effect as a signed original.
11. Our agent member of the securities depository currently is
______________.
12. Our personnel authorized to place orders with broker-dealers for the
purposes set forth in the Prospectus in Auctions currently is/are ______________
_________________ telephone number (____) ____________.
13. Our taxpayer identification number is _________________________.
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14. This letter is continued on the reverse hereof and the provisions
there set forth pertaining to privately offered Securities shall have the same
effect as if set forth at this place.
Dated:_________________________________ _____________________________________
Mailing Address of Purchaser: (Name of Purchasers)
_______________________________________ By:__________________________________
_______________________________________ Printed Name:________________________
_______________________________________ Title:_______________________________
15. In the case of each offer to purchase, purchase, offer to sell or sale
by us of Securities not registered under the Securities Act of 1933, as amended
(the "Act"), we represent and agree as follows:
A. We understand and expressly acknowledge that the Securities have
not been and will not be registered under the Act and, accordingly, that
the Securities may not be reoffered, resold or otherwise pledged,
hypothecated or transferred unless an applicable exemption from the
registration requirements of the Act is available.
B. We hereby confirm that any purchase of Securities made by us will
be for our own account, or for the account of one or more parties for which
we are acting as trustee or agent with complete investment discretion and
with authority to bind such parties, and not with a view to any public
resale or distribution thereof. We and each other party for which we are
acting which will acquire Securities will be "accredited investors" within
the meaning of Regulation D under the Act with respect to the Securities to
be purchased by us or such party, as the case may be, will have previously
invested in similar types of instruments and will be able and prepared to
bear the economic risks of investing in and holding such Securities.
C. We acknowledge that prior to purchasing any Securities we shall
have received a Prospectus (private placement memorandum) with respect
thereto and acknowledge that we will have had access to such financial and
other information, and have been afforded the opportunity to ask such
questions of representatives of the Corporation and receive answers
thereto, as we deem necessary in connection with our decision to purchase
Securities.
D. We recognize that the Corporation and broker-dealers will rely
upon the truth and accuracy of the foregoing investment representations and
agreements, and we agree that each of our purchases of Securities now or in
the future shall be deemed to constitute our concurrence in all of the
foregoing which shall be binding on us and each party for which we are
acting as set forth in Subparagraph B above.
(c) Flexible Auction Preferred Stock, Series D
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PART I
1. Designation.
The designation of said series of Preferred Stock shall be Flexible
Auction Preferred Stock, Series D (the "Series D Stock"). The number of shares
of Series D Stock shall be 600. The stated value of the Series D Stock shall be
$100,000 per share.
2. Dividends.
(a) The Holders (as defined in Section 9 of this Part I) shall be
entitled to receive, when, as and if declared by the Board of Directors (as
defined in Section 9 of this Part I) out of funds legally available therefor,
cumulative cash dividends, at the Applicable Rate (as defined in clause
(c)(i)(A) of this Section 2) per annum, determined as set forth below, and no
more, payable on the respective dates set forth below.
(b)(i) Dividends on shares of Series D Stock shall accrue at the
Applicable Rate from the Date of Original Issue (as defined in Section 9 of this
Part I).
(b)(ii) Accrued dividends on the shares of the Series D Stock shall
be payable commencing on August 15, 1990. Thereafter, dividends on the Series D
Stock for a Short-Term Dividend Period (as defined in subparagraph (b)(vi) of
this Section 2) shall be payable on the last day of such Short-Term Dividend
Period. Dividends on the shares of Series D Stock for a Long-Term Dividend
Period (as defined in subparagraph (b)(vi) of this Section 2) shall be payable
on the last day of such Long-Term Dividend Period and, if occurring prior to the
last day of such Long-Term Dividend Period, on the first day of the fourth month
after the commencement of such Long-Term Dividend Period and quarterly
thereafter on the first day of each succeeding third month. Each day on which
dividends would be payable as determined as set forth in this subparagraph (ii)
but for the provisions set forth in subparagraph (b)(iii) of this paragraph 2 is
referred to herein as a "Normal Dividend Payment Date."
(b)(iii) Notwithstanding the preceding subparagraph (ii) of this
paragraph (b), if:
(A)(1) the Securities Depository (as defined in Section 9 of
this Part I) shall not have advised the Trust Company (as defined in
Section 9 of this Part I) at least five Business Days prior to a
Dividend Payment Date that it will make available to its participants
and members on Dividend Payment Dates, in funds immediately available
in New York City, the amount due as dividends on such Dividend Payment
Dates, and (2)(X) a Normal Dividend Payment Date is not a Business Day
(as defined in Section 9 of this Part I) or (Y) the day next
succeeding such Dividend Payment Date is not a Business Day, then
dividends shall be payable on the first Business Day preceding such
Normal Dividend Payment Date that is next succeeded by a Business Day;
or
(B)(1) the Securities Depository shall have advised the Trust
Company at least five Business Days prior to such Dividend Payment
Date that it will make available to its participants and members on
Dividend Payment Dates, in funds immediately available in New York
City, the amount due as dividends on such
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Dividend Payment Dates and (2) a Normal Dividend Payment Date is not a
Business Day, then Dividends shall be payable on the first Business Day
after such Normal Dividend Payment Date;
(b)(iv) Notwithstanding the foregoing, if the date on which dividends
on the shares of the Series D Stock would be payable as determined as set forth
in subparagraphs (ii) and (iii) of this paragraph (b) is a day that would result
in the number of days between successive Auction Dates (as defined in Section 9
of this Part I) for the Series D Stock (determined by including the first
Auction Date and excluding the second Auction Date) not being at least equal to
the then current Minimum Holding Period (as defined below), then dividends on
such shares shall be payable, if clause (iii) (A) above would be applicable to
the Series D Stock, on the first Business Day following such date on which
dividends would be so payable that is next succeeded by a Business Day or, if
clause (iii)(B) above would be applicable to the Series D Stock, on the first
Business Day following such day on which dividends would be so payable, that in
either case results in the number of days between such successive Auction Dates
for the Series D Stock (determined as set forth above) being at least equal to
the then current Minimum Holding Period.
In addition, notwithstanding the foregoing, the Board of Directors, in
the event of a change in law lengthening the minimum holding period (the
"Minimum Holding Period") (currently found in Section 246(c) of the Code (as
defined in Section 9 of this Part I) required for taxpayers to be entitled to
the dividends-received deduction on Preferred Stock held by nonaffiliated
corporations (currently found in Section 243(a) of the Code), shall adjust the
period of time between Dividend Payment Dates (as hereinafter defined) so as,
subject to clauses (A) and (B) of subparagraph (b)(iii), to adjust uniformly the
number of Dividend Period Days (as defined in Section 9 of this Part I) in
Short-Term Dividend Periods (as defined in subparagraph (b)(vi) of this Section
2) commencing after the date of such change in law to exceed the new Minimum
Holding Period, provided that the number of Dividend Period Days shall not
exceed by more than nine days the length of such new Minimum Holding Period and
in no event shall exceed 98 days and shall consist of a whole number of weeks.
(b)(v) Each date on which dividends on the shares of the Series D
Stock shall be payable as determined as set forth above shall be referred to
herein as a "Dividend Payment Date" and the first Dividend Payment Date shall be
referred to herein as the "Initial Dividend Payment Date." If applicable, the
period from the preceding Dividend Payment Date to and including the next
Dividend Payment Date for the Series D Stock during a Long-Term Dividend Period
is herein referred to as a "Dividend Quarter." Although any particular Dividend
Payment Date for the Series D Stock may not occur on the originally scheduled
Normal Dividend Payment Date for the Series D Stock because of the foregoing
provisions, each succeeding Dividend Payment Date for the Series D Stock shall
be, subject to such provision, the date determined as set forth in subparagraph
(ii) above as if each preceding Dividend Payment Date had occurred on the
respective originally scheduled Normal Dividend Payment Date.
(b)(vi) The period from and after the Date of Original Issue to and
including the Initial Dividend Payment Date (the "Initial Dividend Period") for
the shares of Series D Stock shall contain 48 Dividend Period Days. After the
Initial Dividend Period for the Series D Stock, each subsequent Dividend Period
for the Series D Stock (except for the adjustments for non-Business Days
provided in subparagraph (iii) above) shall contain 49 Dividend Period Days
(each such period, subject to any adjustment as a result of a change in law
lengthening the Minimum Holding
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Period as provided in subparagraph (iv) above, being referred to herein as a
"Short-Term Dividend Period"), unless as provided in subparagraph (vii) below,
the Term Selection Agent specifies that any such subsequent Dividend Period
shall be a Dividend Period containing any specified number of Dividend Period
Days greater than the number of Dividend Period Days in a Short-Term Dividend
Period and containing a number of Dividend Period Days evenly divisible by seven
(each such period being referred to herein as a "Long-Term Dividend Period," and
each such Short-Term Dividend Period and Long-Term Dividend Period, together
with the Initial Dividend Period (as defined in clause (c)(i)(A)), being
referred to herein as a "Dividend Period"). After the Initial Dividend Period
for the Series D Stock, each successive Dividend Period for the Series D Stock
shall commence on the Dividend Payment Date ending the preceding Dividend Period
and shall end (i) during a Short-Term Dividend Period, on the next Dividend
Payment Date for the Series D Stock and (ii) during a Long-Term Dividend Period,
on the last day of the Long-Term Dividend Period specified by the Term Selection
Agent in the related notice of Long-Term Dividend Period.
(b)(vii) Not less than 10 and not more than 20 days prior to the date
of an Auction (as defined in Section 9 of this Part I) for the Series D Stock
and based on the criteria set forth below, the Term Selection Agent may give
telephonic and written notice to the Corporation, the Trust Company, the Paying
Agent and the Securities Depository that the next succeeding Dividend Period for
the Series D Stock will be longer than a Short-Term Dividend Period (a "Notice
of Long-Term Dividend Period"). Such notice will specify the next succeeding
Dividend Period for the Series D Stock as a Long-Term Dividend Period, which may
be any period designated by the Term Selection Agent greater than the Short-Term
Dividend Period and containing a number of Dividend Period Days evenly divisible
by seven, provided that for any Auction occurring after the initial Auction for
the Series D Stock, the Term Selection Agent may not give a Notice of Long-Term
Dividend Period for the Series D Stock (and any such notice shall be null and
void) unless Sufficient Clearing Bids were made in the last occurring Auction
for the Series D Stock and full cumulative dividends for the Series D Stock
payable prior to the date of Notice of Long-Term Dividend Period have been paid
in full. The Term Selection Agent shall state in each Notice of Long-Term
Dividend Period (i) that the next succeeding Dividend Period for the Series D
Stock shall be a Long-Term Dividend Period, (ii) the term thereof and (iii) the
redemption provisions applicable for such Long-Term Dividend Period. The Term
Selection Agent may establish a Long-Term Dividend Period, and, subject to the
provisions of Section 4 of this paragraph 6(c) of Article Fourth, the applicable
redemption provisions therefor, for the shares of the Series D Stock if the Term
Selection Agent determines that such Long-Term Dividend Period and such
redemption provisions, in its sole opinion, provide the Corporation with the
most favorable financing alternative based upon the following: (i) short-term
and long-term market rates and indices of such short-term and long-term rates,
(ii) the amounts, maturities and interest or dividend rates on the then
outstanding securities of the Corporation or its subsidiaries, (iii) market
supply and demand for short-term and long-term securities, (iv) yield curves for
short-term and long-term securities comparable to the shares of the Series D
Stock, (v) industry and financial conditions which may affect the shares of the
Series D Stock including the Term Selection Agent's expectations with respect
thereto, (vi) current tax laws and administrative interpretations with respect
thereto, (vii) the number of shares of the Series D Stock Outstanding on the
next Auction Date and (viii) the number of potential purchasers. Any Notice of
Long-Term Dividend Period may be revoked by the Term Selection Agent on or prior
to the second Business Day prior to the related Auction by telephonic and
written notice (a "Notice of Revocation") to the Corporation, the Trust Company,
the Paying Agent and the Securities Depository, specifying that the Term
Selection Agent has determined that because of subsequent changes in any of the
foregoing factors, such Long-Term Dividend Period would not result in the
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most favorable financing alternative for the Corporation, and shall be deemed to
have been revoked if on or prior to the second Business Day prior to the related
Auction, the Term Selection Agent shall have been removed and the Corporation
shall have given written and telephonic notice of such removal ("Notice of
Removal") to the Trust Company, the Paying Agent and the Securities Depository.
Except with respect to a Notice of Long-Term Dividend Period that is deemed to
be revoked, any Long-Term Dividend Period specified by the Term Selection Agent
for the Series D Stock and any revocation thereof shall be conclusive and
binding on the Corporation and the Holders.
The Corporation may remove the Term Selection Agent for the Series D
Stock upon 5 days' written notice. If there is no Term Selection Agent with
respect to any Dividend Period, then such Dividend Period shall be a Short-Term
Dividend Period.
If the Term Selection Agent does not give a Notice of Long-Term
Dividend Period with respect to the next succeeding Dividend Period for the
Series D Stock or gives a Notice of Revocation with respect thereto or such
Notice of Long-Term Dividend Period shall be deemed to have been revoked, such
next succeeding Dividend Period shall be a Short-Term Dividend Period. In
addition, in the event the Term Selection Agent has given a Notice of Long-Term
Dividend Period with respect to the next succeeding Dividend Period for the
Series D Stock and has not given a Notice of Revocation with respect thereto and
such Notice of Long-Term Dividend Period shall not have been deemed revoked, but
Sufficient Clearing Bids are not made in the related Auction for the Series D
Stock or such Auction is not held for any reason, such next succeeding Dividend
Period shall, notwithstanding such Notice of Long-Term Dividend Period, be a
Short-Term Dividend Period and the Term Selection Agent may not again give a
Notice of Long-Term Dividend Period (and any such notice shall be null and void)
for the Series D Stock until sufficient Clearing Bids have been made in an
Auction with respect to a Short-Term Dividend Period for the Series D Stock.
(b)(viii) As long as the Applicable Rate is based on the results of
an Auction, the Corporation shall pay to the Paying Agent (as defined in
Section 9 of this Part I) not later than 12:00 noon, New York City time, on the
Business Day next preceding each Dividend Payment Date, an aggregate amount of
funds available on the next Business Day in the City of New York, New York,
equal to the dividends to be paid to all Holders on such Dividend Payment Date.
All such moneys shall be held in trust for the payment of such dividends by the
Paying Agent for the benefit of the Holders specified in subparagraph (ix) or
this paragraph (b).
(b)(ix) Each dividend shall be payable to the Holders as their names
appear on the stock register of the Corporation on the Business Day next
preceding the Dividend Payment Date thereof; provided, however, that if a Rate
Adjustment Event (as defined in Section 9 of this Part I) shall have occurred
and shall not have been cured by paying all accrued and unpaid dividends
and unpaid redemption payments as provided in clause (c)(i)(B), such dividend
shall be paid to such Holders as their names appear on the stock register of the
Corporation on such date, not exceeding 15 days preceding the payment date
thereof, as may be fixed by the Board of Directors. Dividends in 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 as their names appear on the
stock register of the Corporation on such date, not exceeding 15 days preceding
the payment date thereof, as may be fixed by the Board of Directors.
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(c)(i)(A) The dividend rate of shares of Series D Stock shall be 6.55%
per annum during the Initial Dividend Period. Commencing on the Initial Dividend
Payment Date, the dividend rate on shares of Series D Stock for each subsequent
dividend period (hereinafter referred to as a "Subsequent Dividend Period" and
collectively as "Subsequent Dividend Periods") thereafter, which Subsequent
Dividend Periods shall commence on the day that is the last day of the preceding
Dividend Period and shall end on and include the next succeeding Dividend
Payment Date, shall be equal to the rate per annum that results from
implementation of the Auction Procedures (as defined in Section 9 of this Part
I); provided, however, that in the event that an Auction for any Dividend Period
is not held for any reason (other than as a result of the existence of a Rate
Adjustment Event on the Auction Date for such Dividend Period), the dividend
rate for such Dividend Period shall be the Non-Auction Rate on the Auction Date
with respect to such Dividend Period. The "Non-Auction Rate" on an Auction Date
shall be the greater of (x) the Applicable Rate in effect immediately prior to
such Auction Date or (y) the Maximum Rate in effect on such Auction Date for a
Short-Term Dividend Period, regardless of whether an Auction is held. The
dividend rate for any Dividend Period or part thereof determined as set forth in
this paragraph (c) is referred to herein as the "Applicable Rate" for such
Dividend Period or part thereof.
(c)(i)(B) In the event a Rate Adjustment Event occurs on a Dividend
Payment Date and is not cured in accordance with the next succeeding sentence.
Auctions will be suspended until such time as set forth below, and the
Applicable Rate for each Dividend Period thereafter (until Auctions are
resumed), including the Dividend Period commencing on the date of such Rate
Adjustment Event, shall be equal to the Maximum Rate with respect to such
Dividend Period (but, for purposes of determining such Maximum Rate, with the
prevailing rating for the Series D Stock being deemed to be "Below ba3"/BB-" and
the first day of such Dividend Period being deemed to be the Auction Date) and
each such Dividend Period shall be a Short-Term Dividend Period. Any such Rate
Adjustment Event shall be deemed cured if by 12:00 noon, New York City time, on
the third Business Day next succeeding any such Rate Adjustment Event, the
Corporation shall have deposited with the Trust Company all accumulated and
unpaid dividends and any unpaid redemption payments, including the full amount
of any dividends to be paid with respect to the Dividend Period with respect to
which such Rate Adjustment Event occurred, plus an amount computed by
multiplying (i) 250% of the 60-Day "AA" Composite Commercial Paper Rate on the
date on which such Rate Adjustment Event occurred by (ii) a fraction, the
numerator of which shall be the number of days for which such Rate Adjustment
Event is not cured in accordance with this sentence (including the day such Rate
Adjustment Event occurs and excluding the day such Rate Adjustment Event is
cured) and the denominator of which shall be 360, and applying the rate obtained
against the aggregate amount not paid when due.
9(c)(ii) In the event a Rate Adjustment Event occurs during a Long-
Term Dividend Period, the Applicable Rate for such Dividend Period shall remain
unchanged, and an additional amount computed by multiplying (i) the Maximum Rate
with respect to such Dividend Period (but, for purposes of determining such
Maximum Rate, with the prevailing rating for the Series D Stock being deemed to
be "Below "ba3"/BB-" and the date of such Rate Adjustment Event being deemed to
be the Auction Date) by (ii) a fraction, the numerator of which shall be the
number of days for which such Rate Adjustment Event is not cured (including the
day such Rate Adjustment Event occurs and excluding the day such Rate Adjustment
Event is cured) and the denominator of which shall be 360, and applying the rate
obtained against accumulated dividends and redemption payments not paid when
due, shall accumulate as additional dividends on the shares of the Series D
Stock. In the event that such Rate Adjustment Event is not cured prior to the
next succeeding
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Auction Date for shares of the Series D Stock, Auctions for the Series D Stock
shall be suspended, the next succeeding Dividend Period shall be a Short-Term
Dividend Period and the Applicable Rate shall be equal to the Maximum Rate with
respect to such Dividend Period (but, for purposes of determining such Maximum
Rate, with the prevailing rating for the Series D Stock being deemed to be
"Below "ba3"/BB-" and the first day of such Dividend Period being deemed to be
the Auction Date). Thereafter until such Rate Adjustment Event shall have been
cured and full and cumulative dividends on the shares of the Series D Stock
shall have been paid in full or the Board of Directors of the Corporation shall
have declared a dividend in such amount and funds sufficient for the payment
thereof shall have been irrevocably deposited with the Paying Agent, each
subsequent Dividend Period and Applicable Rate for the Series D Stock will be
determined pursuant to the next preceding paragraph.
(c)(iii) If prior to an Auction Date for shares of the Series D
Stock, full and cumulative dividends shall have been paid in full or the Board
of Directors of the Corporation shall have declared a dividend in such amount
and funds sufficient for the payment thereof shall have been irrevocably
deposited with the Paying Agent, and any unpaid redemption payments shall have
been made, Auctions for the Series D Stock will resume.
(c)(iv) The amount of dividends per share accrued and payable on
shares of Series D Stock for each Dividend Period or Dividend Quarter shall be
computed by multiplying the Applicable Rate for such Dividend Period or Dividend
Quarter by a fraction, the numerator of which shall be the number of Dividend
Period Days in such Dividend Period or Dividend Quarter (calculated by counting
the first day of such Dividend Period or Dividend Quarter but excluding the last
day thereof), and the denominator of which shall be 360 and applying the rate
obtained against $100,000; and the amount of dividends per share accrued for any
part of any Dividend Period shall be computed by multiplying the Applicable Rate
for such Dividend Period by a fraction the numerator of which shall be the
number of days in such part of such Dividend Period (calculated by counting the
first day thereof but excluding the last day thereof) and the denominator of
which shall be 360 and applying the rate obtained against $100,000.
(d)(i) No full dividends shall be declared or paid or set apart
for payment on Preferred Stock of any series ranking, as to dividends, on a
parity with or junior to the Series D 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 D Stock for all Dividend Periods terminating on or prior to the
date of payment of such full cumulative dividends. When dividends are not paid
in full, as aforesaid, upon the Series D Stock and any other Preferred Stock
ranking on a parity as to dividends with the Series D Stock, all dividends
declared upon the Series D Stock and any other Preferred Stock ranking on a
parity as to dividends with the Series D Stock shall be declared pro rata so
that the amount of dividends declared per share on the Series D Stock and such
other Preferred Stock shall in all cases bear to each other the same ratio that
accrued dividends per share on the Series D Stock and such other Preferred Stock
bear to each other. Holders of Series D Stock shall not be entitled to any
dividend, whether payable in cash, property or stocks, in excess of the full
cumulative dividends, as herein provided, on the Series D Stock. No interest, or
sum of money in lieu of interest, shall be payable in respect of any dividend
payments on the Series D Stock which may be in arrears.
(d)(ii) So long as any shares of Series D Stock are outstanding, no
dividend (other than a dividend in Common Stock or in any other stock-ranking
junior to Series D Stock as to
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dividends and upon liquidation and other than as provided in subparagraph (i) of
this paragraph (d)) shall be declared or paid or set aside for payment or other
distribution declared or made upon the Common Stock or upon any other stock
ranking junior to or on a parity with the Series D Stock as to dividends or upon
liquidation, nor shall any Common Stock or any other stock of the Corporation
ranking junior to or on a parity with the Series D Stock as to dividends or upon
liquidation be redeemed, purchased or otherwise acquired for any consideration
(or any moneys paid to or made available for a sinking fund for the redemption
of any such stock) by the Corporation (except by conversion into or exchange for
stock of the Corporation ranking junior to the Series D Stock as to dividends
and upon liquidation) unless, in each case, the full cumulative dividends on all
outstanding shares of Series D Stock shall have been paid for all past Dividend
Periods.
3. Voting.
(a) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of at least
66-2/3% of all of the shares of the Series D Stock and all other series of
Preferred Stock ranking on a parity with the Series D Stock, either as to
dividends or upon liquidation, at the time outstanding given in person or by
proxy either in writing or by a vote at a meeting called for the purpose at
which the holders of shares of Series D Stock and shares of Preferred Stock
ranking on a parity with the Series D Stock, either as to dividends or upon
liquidation, shall vote together as a separate class, shall be necessary for
authorizing, effecting or validating the amendment, alteration or repeal of any
of the provisions of this Restated Certificate of Incorporation or of any
certificate amendatory thereof or supplemental thereto (including any
Certificate of Designations or any similar document relating to the Series D
Stock or any series of Preferred Stock ranking on a parity with the Series D
Stock, either as to dividends or upon liquidation) which would adversely affect
the powers, preferences, rights or privileges of the Series D Stock or the
Preferred Stock ranking on a parity with the Series D Stock, either as to
dividends or upon liquidation; provided, however, that if any such amendment,
alteration or repeal would adversely affect the powers, preferences, rights or
privileges of the Series D Stock or one or more series of the Preferred Stock
or ranking on a parity with the Series D Stock, either as to dividends or upon
liquidation, but shall not so affect the entire class, then only the shares of
the one or more series so affected shall be considered to be a separate class
entitled to vote upon or consent to such amendment, alteration or repeal;
(b) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of at least
66-2/3% of all of the shares of the Series D Stock and all other series of
Preferred Stock ranking on a parity with the Series D Stock, either as to
dividends or upon liquidation, at the time outstanding, given in person or by
proxy, either in writing or by a vote at a meeting called for the purpose at
which the holders of shares of the Series D Stock and such other series of
Preferred Stock ranking on a parity with the Series D Stock, either as to
dividends or upon liquidation, shall vote together as a single class without
regard to series, shall be necessary for authorizing, effecting or validating
the creation, authorization or issue of any class of stock of the Corporation
ranking prior to the shares of the Series D Stock and such other series of
Preferred Stock ranking on a parity with the Series D Stock, either as to
dividends or upon liquidation, as to dividends or upon liquidation, or the
reclassification of any authorized stock of the Corporation into any such prior
shares, or the creation, authorization or issue of any obligation or security
convertible into or evidencing the right to purchase any such prior shares; and
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(c) If at the time of any annual meeting of stockholders for the
election of directors a default in preference dividends on the Series D Stock or
the Preferred Stock ranking on a parity with the Series D Stock, either as to
dividends or upon liquidation, shall exist, the number of directors constituting
the Board of Directors shall be increased by two, and the holders of the Series
D Stock and the Preferred Stock of all series ranking on a parity with the
Series D Stock, either as to dividends or upon liquidation, shall have the right
at such meeting, voting together as a single class without regard to series, to
the exclusion of the holders of Common Stock, to elect two directors of the
Corporation to fill such newly created directorships. Such right shall continue
until there are no dividends in arrears upon the Series D Stock and the
Preferred Stock ranking on a parity with the Series D Stock, either as to
dividends or upon liquidation. Each director elected by the holders of shares of
Series D Stock and Preferred Stock ranking on a parity with the Series D Stock,
either as to dividends or upon liquidation, (herein called a "Preferred
Director") shall continue to serve as such director for the full term for which
he shall have been elected, notwithstanding that prior to the end of such term a
default in preference dividends shall cease to exist. Any Preferred Director may
be removed without cause by, and shall not be removed without cause except by,
the vote of the holders of record of the outstanding shares of Series D stock
and Preferred Stock ranking on a parity with the Series D Stock, either as to
dividends or upon liquidation, voting together as a single class without regard
to series, at a meeting of the stockholders, or of the holders of shares of
Series D Stock and Preferred Stock ranking on a parity with the Series D
Stock, either as to dividends or upon liquidation, called for that purpose. So
long as a default in preference dividends on the Series D Stock or the Preferred
Stock ranking on a parity with the Series D Stock, either as to dividends or
upon liquidation shall exist, (A) any vacancy in the office of a Preferred
Director may be filled (except as provided in the following clause (B)) by an
instrument in writing signed by the remaining Preferred Director and filed with
the Corporation and (B) in the case of the removal of any Preferred Director,
the vacancy may be filled by the vote of the holders of the outstanding shares
of Series D Stock and Preferred Stock ranking on a parity with the Series D
Stock, either as to dividends or upon liquidation, voting together as a single
class without regard to series, at the same meeting at which such removal shall
be voted. Each director appointed as aforesaid by the remaining Preferred
Director shall be deemed, for all purposes hereof, to be a Preferred Director.
Whenever the term of office of the Preferred Directors shall end and a default
in preference dividends shall no longer exist, the number of directors
constituting the Board of Directors shall be reduced by two. For the purposes
hereof, a "default in preference dividends" on the Series D Stock or the
Preferred Stock ranking on a parity with the Series D Stock, either as to
dividends or upon liquidation, shall be deemed to have occurred whenever the
amount of accrued dividends upon the Series D Stock or any series of the
Preferred Stock ranking on a parity with the Series D Stock, either as to
dividends or upon liquidation, shall be equivalent to six full quarterly
dividends (which, with respect to any Series D Stock providing for other than
quarterly dividend periods, shall be deemed to be dividends in respect of a
number of dividend periods containing not less than 540 days) or more, and,
having so occurred, such default shall be deemed to exist thereafter until, but
only until, all accrued dividends on all shares of Series D Stock and Preferred
Stock ranking on a parity with the Series D Stock, either as to dividends or
upon liquidation, of each and every series then outstanding shall have been paid
to the end of the last preceding dividend period.
4. Redemption.
(a)(i) The Series D Stock may be redeemed, at the option of the
Corporation, as a whole or from time to time in part, (A) in the case of a
Short-Term Dividend Period, on the
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Dividend Payment Date for such period and (B) in the case of a Long-Term
Dividend Period, on such Dividend Payment Dates as may be established by the
Term Selection Agent as redemption dates, and on such other terms as may be
established by the Term Selection Agent, such dates and other terms have been
determined by the Term Selection Agent as the dates and terms which provide the
Corporation with the most favorable financing alternatives, such determination
to be based upon the factors listed in clauses (i)-(viii) of subparagraph 2(b)
(vii) hereof at a redemption price of $100,000 per shares plus an amount equal
to accrued and unpaid dividends thereon (whether or not earned or declared) to
the date fixed for redemption.
(a) (ii) If fewer than all of the outstanding shares of Series D
Stock are to be redeemed pursuant to subparagraph (i) of this paragraph (a), the
number of shares to be redeemed shall be determined by the Board of Directors,
and such shares shall be redeemed pro rata from the Holders in proportion to the
number of such shares held by such Holders (with adjustments to avoid redemption
of fractional shares).
(b) If the Corporation shall redeem shares of Series D Stock pursuant
to paragraph (a) of this Section 4, notice of such redemption shall be given by
mailing the same by first class mail, postage prepaid, not less than 30 nor more
than 45 days prior to the date fixed for redemption thereof, to each Holder of
the shares to be redeemed, at such Holder's address as the same appears on the
stock register of the Corporation. Such notice shall state: (i) the redemption
date; (ii) the number of shares of Series D Stock to be redeemed; (iii) the
redemption price plus the amount of accrued and unpaid dividends to the
redemption date; (iv) the place or places where certificates for such shares of
Series D Stock are to be surrendered for payment of the redemption price; and
(v) that dividends on the shares to be redeemed will cease to accrue on such
redemption date. If fewer than all shares held by any Holder are to be redeemed,
the notice mailed to such Holder shall also specify the number of shares to be
redeemed from such Holder.
(c) Notwithstanding the provisions of paragraph (a) of this Section
4, if any dividends on the Series D Stock are in arrears, no shares of Series D
Stock shall be redeemed unless all outstanding shares of Series D Stock are
simultaneously redeemed, and the Corporation shall not purchase or otherwise
acquire any shares of Series D Stock; provided, however, that the foregoing
shall not prevent the purchase or acquisition of shares of Series D Stock
pursuant to a purchase or exchange offer made on the same terms to Holders of
all outstanding shares of Series D Stock.
(d) If notice of redemption has been given under paragraph (b) of
this Section 4 or the Corporation has irrevocably authorized and directed the
Redemption Agent to begin promptly and complete such giving of notice, and the
Corporation has deposited in trust with the Redemption Agent funds necessary for
such redemption, from and after the later of the date of such notice or the date
such deposit is made, the shares of Series D Stock called for redemption shall
no longer be deemed to be outstanding, and all rights of the Holders thereof as
stockholders of the Corporation (except the right to receive the redemption
price plus an amount equal to the accrued and unpaid dividends thereon to the
date fixed for redemption) shall cease. Upon surrender in accordance with said
notice of the certificates for any shares so redeemed (properly endorsed or
assigned for transfer, if the Board of Directors shall so require and the notice
shall so state), the redemption price set forth above plus an amount equal to
such accrued and unpaid dividends shall be paid by the Redemption Agent to the
Holders of the shares of Series D Stock subject to redemption as set forth in
paragraph (c) of this Section 4. In case fewer than all of the
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shares represented by any such certificate are redeemed, a new certificate shall
be issued representing the unredeemed shares without cost to the Holder thereof.
(e) As long as the Applicable Rate is based on the results of an
Auction, on the Business Day immediately preceding the date fixed for
redemption, the Corporation shall pay the applicable Redemption Deposit Amount
(as defined in Section 9 of this Part I) to the Redemption Agent, in funds
available on the redemption date for disbursement to Holders as appropriate. All
such moneys shall be held in trust by the Redemption Agent for the benefit of
Holders of shares so to be redeemed.
5. Liquidation Rights.
(a) Upon the dissolution, liquidation or winding up of the
Corporation, the Holders of the Series D Stock shall be entitled to receive out
of the assets of the Corporation available for distribution to stockholders,
before any payment or distribution shall be made on the Common Stock or on any
other class of stock ranking junior to the Series D Stock upon liquidation, the
amount of $100,000 per share, plus a sum equal to all dividends (whether or not
earned or declared) on such shares accrued and unpaid thereon to the date of the
final distribution.
(b) Neither the sale of all or substantially all the property or
business of the Corporation, nor the merger or consolidation of the Corporation
into or with any other corporation or the merger or consolidation of any other
corporation into or with the Corporation, shall be deemed to be a dissolution,
liquidation or winding up, voluntary or involuntary, for the purposes of this
Section 5.
(c) After the payment to the holders of the Series D Stock of the
full preferential amounts provided for in this Section 5, the holders of Series
D Stock as such shall have no right or claim to any of the remaining assets of
the Corporation.
(d) In the event the assets of the Corporation available for
distribution to the holders of Series D Stock upon any dissolution, liquidation
or winding up of the Corporation, whether voluntary or involuntary, shall be
insufficient to pay in full all amounts to which such holders are entitled
pursuant to paragraph (a) of this Section 5, no such distribution shall be made
on account of any shares of any other class or series of Preferred Stock ranking
on a parity with the Series D Stock upon such dissolution, liquidation or
winding up unless proportionate distributive amounts shall be paid on account
of the Series D Stock, ratably, in proportion to the full distributable amounts
for which holders of all such parity shares are respectively entitled upon such
dissolution, liquidation or winding up.
(e) Upon the dissolution, liquidation or winding up of the
Corporation, the holders of shares of Series D Stock then outstanding shall be
entitled to be paid out of the assets of the Corporation available for
distribution to its stockholders all amounts to which such holders are entitled
pursuant to paragraph (a) of this Section 5 before any payment shall be made to
the holders of any class or series of capital stock of the Corporation ranking
junior upon liquidation to the Series D Stock.
6. Sinking or Retirement Fund.
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The Series D Stock shall not be entitled to the benefit of a sinking
or retirement fund to be applied to the purchase or redemption of such stock.
7. Rank.
For purposes of this paragraph 6(c) of Article Fourth, any stock of
any class or classes of the Corporation shall be deemed to rank:
(a) prior to the Series D Stock, either as to dividends or upon
liquidation, if the holders of such class or classes shall be entitled to the
receipt of dividends or of amounts distributable upon dissolution, liquidation
or winding up of the Corporation, as the case may be, in preference or priority
to the holders of Series D Stock;
(b) on a parity with the Series D Stock, either as to dividends or
upon liquidation, whether or not the dividend rates, dividend payment dates or
redemption or liquidation prices per share or sinking fund provisions, if any,
are different from those of the Series D Stock, or if the holders of such stock
shall be entitled to the receipt of dividends or of amounts distributable upon
dissolution, liquidation or winding up of the Corporation, as the case may be,
in proportion to their respective dividend rates or liquidation prices, without
preference or priority, one over the other, as between the holders of such stock
and the holders of Series D Stock; and
(c) junior to the Series D Stock, either as to dividends or upon
liquidation, if such class shall be Common Stock or if the holders of Series D
Stock shall be entitled to receipt of dividends or of amounts distributable upon
dissolution, liquidation or winding up of the Corporation, as the case may be,
in preference or priority to the holders of shares of such class or classes.
8. Additional Agreements.
(a) Term Selection Agent. The Corporation shall use its best efforts
to maintain a Term Selection Agent with respect to the Series D Stock to act in
accordance with the provisions set forth herein.
(b) Trust Company. The Corporation shall use its best efforts to
maintain a Trust Company with respect to the Series D Stock to act in accordance
with the provisions set forth herein.
9. As used in Parts I and II of this paragraph 6(c) of Article
Fourth, 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:
(a) "60-day 'AA' Composite Commercial Paper Rate," on any date,
shall mean (i) the interest equivalent of the 60-day rate on
commercial paper placed on behalf of issuers whose corporate bonds are
rated "AA" by Standard & Poor's or its successor, or the equivalent of
such rating by another rating agency, as such 60-day rate is made
available on a discount basis or otherwise by the Federal Reserve Bank
of New York for the immediately preceding Business Day prior to such
date; or (ii) in the event that the Federal Reserve Bank of New York
does not make available
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<PAGE>
such a rate, then the arithmetic average of the interest equivalent of the
60-day rate on commercial paper placed on behalf of such issuers, as quoted
on a discount basis or otherwise by the Commercial Paper Dealers to the
Trust Company for the close of business on the immediately preceding
Business Day prior to such date. If any Commercial Paper Dealer does not
quote a rate required to determine the 60-day "AA" Composite Commercial
Paper Rate, the 60-day "AA" Composite Commercial Paper Rate shall be
determined on the basis of the quotation or quotations furnished by the
remaining Commercial Paper Dealer or Commercial Paper Dealers and any
Substitute Commercial Paper Dealer or Substitute Commercial Paper Dealers
selected by the Corporation to provide such rate or rates not being
supplied by any Commercial Paper Dealer or Commercial Paper Dealers, as the
case may be, or, if the Corporation does not select any such Substitute
Commercial Paper Dealer or Substitute Commercial Paper Dealers, by the
remaining Commercial Paper Dealer or Commercial Paper Dealers. If the Board
of Directors shall adjust the number of Dividend Period Days pursuant to
the second sentence of subparagraph (b)(iv) of Section 2 of this Part I,
then (i) if the Dividend Period Days shall be 70 or more days but fewer
than 85 days, such rate shall be the arithmetic average of the interest
equivalent of the 60-day and 90-day rates on such commercial Paper, and
(ii) if the Dividend Period Days shall be 85 or more days but 98 or fewer
days, such rate shall be the interest equivalent of the 90-day rate on such
commercial paper. For purposes of this definition, the "interest
equivalent" of a rate stated on a discount basis (a "discount rate") for
commercial paper maturing in a given number of days shall be equal to the
quotient (rounded to the nearest one-thousandth (.001) of 1%) of (A) the
discount rate divided by (B) the difference between (x) 1.00 and (y) a
fraction the numerator of which shall be the product of the discount rate
times the number of days in which such commercial paper matures and the
denominator of which shall be 360.
(b) "Applicable 'AA' Composite Commercial Paper Rate" for any Long-
Term Dividend Period on any date, shall mean (A) in the case of any Long-
Term Dividend Period of less than 70 Dividend Period Days, the interest
equivalent of the 60-day rate, (B) in the case of any Long-Term Dividend
Period of 70 Dividend Period Days or more but less than 85 Dividend Period
Days, the arithmetic average of the interest equivalent of the 60-day and
90-day rates, (C) in the case of any Long-Term Dividend Period of 85
Dividend Period Days or more but less than 120 Dividend Period Days, the
interest equivalent of the 90-day rate, (D) in the case of any Long-Term
Dividend Period of 120 Dividend Period Days or more but less than 148
Dividend Period Days, the arithmetic average of the interest equivalent of
the 90-day and 180-day rates, (E) in the case of any Long-Term Dividend
Period of 148 Dividend Period Days or more but less than 210 Dividend
Period Days, the interest equivalent of the 180-day rate, (F) in the case
of any Long-Term Dividend Period of 210 Dividend Period Days or more but
less than 238 Dividend Period Days, the arithmetic average of the interest
equivalent of the 180-day and 270-day rates and (G) in the case of any
Long-Term Dividend Period of 238 or more Dividend Period Days, the
interest equivalent of the 270-day rate, on commercial paper placed on
behalf of issuers whose corporate bonds are rated "AA" by Standard &
Poor's or its successor, or the equivalent of such rating by another rating
agency as made available on a discount basis or otherwise by the Federal
Reserve Bank of New York
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for the Business Day immediately preceding such date or in the event that
the Federal Reserve Bank of New York does not make available any such rate,
then the arithmetic average of such rates, as quoted on a discount basis or
otherwise, by the Commercial Paper Dealers, to the Trust Company for the
close of business on the Business Day next preceding such date. If any
Commercial Paper Dealer does not quote a rate required to determine the
"AA" Composite Commercial Paper Rate, the "AA" Composite Commercial Paper
Rate shall be determined on the basis of the quotation or quotations
furnished by the remaining Commercial Paper Dealer or Commercial Paper
Dealers and any Substitute Commercial Paper Dealer or Substitute Commercial
Paper Dealers selected by the Corporation to provide such rate or rates not
being supplied by any Commercial Paper Dealer or Commercial Paper Dealers,
as the case may be, or, if the Corporation does not select any such
Substitute Commercial Paper Dealer or Substitute Commercial Paper Dealers,
by the remaining Commercial Paper Dealer or Commercial Paper Dealers. For
purposes of this definition, the "interest equivalent" means the equivalent
yield on a 360-day basis of a discount-basis security to an interest-
bearing security.
(c) "Applicable Rate" shall mean the rate per annum at which dividends
are payable for any Dividend Period established pursuant to clause
(c)(i)(A) of Section 2 of this Part I.
(d) "Applicable Treasury Rate" on any date, which respect to the
Series D Stock with a Long-Term Dividend Period of one year or more, shall
mean the interest equivalent of the rate for direct obligations of the
United States Treasury having an original maturity which is equal to, or
next lower than, the length of such Long-Term Dividend Period, as published
weekly by the Federal Reserve Board in "Federal Reserve Statistical Release
H.15 (519)--Selected Interest Rates," or any successor publication by the
Federal Reserve Board within five Business days preceding such date. In the
event that the Federal Reserve Board does not publish such weekly per annum
interest rate, or if such release is not yet available, the applicable
Treasury Rate will be the arithmetic average of the secondary market bid
rates as of approximately 3:30 p.m., New York City time, on the Business
Day next preceding such date of the U.S. Government Securities Dealers
obtained by the Trust Company (in the case of a determination of the
Applicable Treasury Rate on any Auction Date) or the Corporation (in the
case of a determination of such rate on any other day) for the issue of
direct obligations of the United States Treasury, in an aggregate principal
amount of at least $1,000,000, with a remaining maturity equal to, or next
lower than, the number of Dividend Period Days in such Long-Term Dividend
Period. If any U.S. Government Securities Dealer does not quote a rate
required to determine the Applicable Treasury Rate, the Applicable Treasury
Rate shall be determined on the basis of the quotation or quotations
furnished by the remaining U.S. Government Securities Dealer or Dealers or
any Substitute U.S. Government Securities Dealer or Dealers selected by the
Corporation to provide such rate or rates not being supplied by any U.S.
Government Securities Dealer or Dealers, as the case may be, or, if the
Corporation does not select any such Substitute U.S. Government Securities
Dealer or Dealers, by the remaining U.S. Government Securities Dealer or
Dealers: provided that, in the event the Corporation is unable to cause
such quotations to be furnished to the Trust
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Company (or, if applicable, to the Corporation) by such sources, the
Corporation may cause such rates to be furnished to the Trust Company (or,
if applicable, to the Corporation) by such alternative source as the
Corporation in good faith deems to be reliable. For purposes of this
definition, the "interest equivalent" of a rate stated on a discount basis
shall be equal to the quotient of (A) the discount rate divided by (B) the
difference between 1.00 and the discount rate.
(e) "Auction" shall mean each periodic implementation of the Auction
procedures.
(f) "Auction Date" shall mean the Business Day next preceding the
first day of each Dividend Period after the Initial Dividend Period.
(g) "Auction Procedures" shall mean the procedures for conducting
Auctions set forth in Part II hereof.
(h) "Board of Directors" shall mean the Board of Directors of the
Corporation or (except in the context of the voting rights provisions
relating to the Series D Stock as provided for in Section 3 of this Part I)
a duly authorized committee thereof.
(i) "Business Day" shall mean a day on which the New York Stock
Exchange, Inc. is open for trading and on which banks in neither The City
of New York, New York, nor Chicago, Illinois, are authorized by law to
close.
(j) "Code" shall mean the Internal Revenue Code of 1986.
(k) "Commercial Paper Dealers" shall mean Goldman, Sachs & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Salomon Brothers Inc.
and Shearson Lehman Hutton Inc. or, in lieu of any thereof, their
respective affiliates or successors.
(l) "Common Stock" shall mean all shares now or hereafter issued of
any class of common stock of the Corporation presently authorized and any
other shares of stock into which such stock may hereinafter be changed from
time to time.
(m) "Date of Original Issue" shall mean the date on which the
Corporation originally issues shares of Series D Stock.
(n) "Dividend Payment Date" shall have the meaning specified in
subparagraph (b)(v) of Section 2 of this Part I.
(o) "Dividend Period" and "Dividend Periods" shall have the meaning
specified in subparagraph (b)(vi) of Section 2 of this Part I.
(p) "Dividend Period Days" shall mean the number of days, without
giving effect to clauses A and B of subparagraph 2(b)(iii), between
successive Dividend
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Payment Dates, and shall be calculated by including the first Dividend
Payment Date and excluding the last Dividend Payment Date.
(q) "Dividend Quarter" shall have the meaning specified in
subparagraph (b)(v) of Section 2 of this Part I.
(r) "Holder" shall mean a holder of shares of Series D Stock as such
holder's name appears on the stock register of the Corporation.
(s) "Initial Dividend Payment Date" shall have the meaning specified
in subparagraph (b)(v) of Section 2 of this Part I.
(t) "Initial Dividend Period" shall have the meaning specified in
subparagraph (b)(vi) of Section 2 of this Part I.
(u) "Long-Term Dividend Period" shall have the meaning specified in
subparagraph (b)(vi) of Section 2 of this Part I.
(v) "Maximum Rate," with respect to a Short-Term Dividend Period, on
any Auction Date will be the rate obtained by multiplying the 60-day "AA"
Composite Commercial Paper Rate on such Auction Date, and with respect to a
Long-Term Dividend Period, the Maximum Rate on any Auction Date will be the
rate obtained by multiplying the Reference Rate on such Auction Date, by a
percentage determined as set forth below based on the credit ratings
assigned to the Series D Stock by Moody's and Standard & Poor's (or by one
of them and a Substitute Rating Agency if Moody's or Standard & Poor's
shall not make such rating available, or by two Substitute Rating Agencies
if neither Moody's nor Standard & Poor's shall make such rating available;
in the event that only one such rating shall be available, the percentage
will be based on such rating).
<TABLE>
<CAPTION>
Credit Rating
----------------------------------------- Applicable Percentage of
60-day "AA" Composite
Moody's Standard & Poor's Commercial Paper Rate
or Reference Rate
----------------------------------------- --------------------------
<S> <C> <C>
"aa3" or Above AA- or Above 110%
"a3" to "al" A- to A+ 125%
"baa3" to "baal" BBB- to BBB+ 150%
"ba3" to "bal" BB- to BB+ 200%
Below "ba3" Below BB- 250%
</TABLE>
If the ratings are split between two of the foregoing categories, the
lower rating will determine the prevailing rating.
The Corporation shall take all reasonable action necessary to enable
Moody's and Standard & Poor's to provide a rating for the Series D Stock. If
either Moody's or Standard & Poor's shall not make such rating available or
neither Moody's nor Standard & Poor's shall make
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such a rating available, Goldman, Sachs & Co. or its affiliates and successors,
after consultation with the Corporation, shall select a Substitute Rating Agency
or two Substitute Rating Agencies, as the case may be.
(w) "Minimum Holding Period" shall have the meaning specified in
subparagraph (b)(iv) of Section 2 of this Part I.
(x) "Moody's" shall mean Moody's Investors Service, Inc., or its
successor, so long as such agency (or successor) is in the business of
rating securities of the type of the Series D Stock and, if such agency is
not in such business, then a Substitute Rating Agency.
(y) "Non-Auction Rate" shall have the meaning specified in clause
(c)(i)(A) of Section 2 of this Part I.
(z) "Notice of Long-Term Dividend Period" shall have the meaning
specified in subparagraph (b)(vii) of Section 2 of this Part I.
(aa) "Notice of Revocation" shall have the meaning specified in
subparagraph (b)(vii) of Section 2 of this Part I.
(bb) "Notice of Removal" shall have the meaning specified in
subparagraph (b)(vii) of Section 2 of this Part I.
(cc) "Outstanding" shall mean, as of any date, shares of Series D
Stock theretofore issued by the Corporation except, without duplication,
(i) any shares of Series D Stock theretofore canceled or delivered to the
Trust Company for cancellation or redeemed by the Corporation or as to
which the Corporation shall have published a notice of redemption or
irrevocably authorized and directed the Redemption Agent to begin and
promptly complete such publication of notice, and deposited in trust with
the Redemption Agent funds necessary for such redemption in accordance with
this Restated Certificate of Incorporation, (ii) any shares of Series D
Stock as to which the Corporation or any Affiliate thereof (other than a
Broker-Dealer affiliate) shall be an Existing Holder and (iii) any shares
of Series D Stock represented by any certificate in lieu of which a new
certificate has been executed and delivered by the Corporation.
(dd) "Paying Agent" shall mean a bank or trust company appointed as
such by a resolution of the Board of Directors.
(ee) "Preferred Director" shall have the meaning specified in
paragraph (c) of Section 3 of this Part I.
(ff) "Rate Adjustment Event" shall mean any failure by the Corporation
to pay (i) to the Paying Agent funds available on any Dividend Payment Date
in the full amount of any dividend (whether or not earned or declared) to
be paid on such Dividend Payment Date on any share of Series D Stock or
(ii) to the Redemption Agent funds available on any redemption date in the
full amount of the redemption
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price to be paid on such redemption date, plus an amount equal to the
accrued and unpaid dividends thereon (whether or not earned or declared) to
such redemption date, of any share of Series D Stock after a notice of
redemption has been given.
(gg) "Redemption Agent" shall mean a bank or trust company appointed
as such by a resolution of the Board of Directors.
(hh) "Redemption Deposit Amount" shall mean the product of (i) the
number of outstanding shares of Series D Stock to be redeemed times (ii) an
amount equal to the applicable redemption price plus an amount equal to
accrued and unpaid dividends (whether or not earned or declared) to the
date fixed for redemption.
(ii) "Reference Rate" shall, mean for Long-Term Dividend Periods (i)
from 50 days to 270 days, the Applicable "AA" Composite Commercial Paper
Rate, (ii) from 270 days to one year, the higher of the 270-day Applicable
"AA" Composite Commercial Paper Rate and the one-year Applicable Treasury
Rate and (iii) from one year to 10 years, the Applicable Treasury Rate.
(jj) "Securities Depository" shall mean The Depository Trust Company
and its successors and assigns or any other securities depository selected
by the Corporation which agrees to follow the procedures required to be
followed by such securities depository in connection with shares of Series
D Stock.
(kk) "Short-Term Dividend Period" shall have the meaning specified in
subparagraph (b)(vi) of Section 2 of this Part I.
(ll) "Standard & Poor's" shall mean Standard & Poor's Corporation, or
its successor, so long as such agency (or successor) is in the business of
rating securities of the type of the Series D Stock and, if such agency is
not in such business, then a Substitute Rating Agency.
(mm) "Subsequent Dividend Period" and "Subsequent Dividend Periods"
shall have the respective meanings specified in clause (c)(i)(A) of Section
2 of this Part I.
(nn) "Substitute Commercial Paper Dealer" shall mean The First Boston
Corporation or Morgan Stanley & Co. Incorporated, or their respective
affiliates or successors; provided that neither such dealer nor any of its
affiliates shall be a Commercial Paper Dealer.
(oo) "Substitute Rating Agency" shall mean a nationally recognized
statistical rating organization (as that term is used in the rules and
regulations of the Securities Exchange Act of 1934) selected by Goldman,
Sachs & Co., or its successors or affiliates, after consultation with the
Corporation.
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<PAGE>
(pp) "Substitute U.S. Government Securities Dealer" shall mean
Morgan Stanley & Co. Incorporated or Salomon Brothers Inc., or their
respective affiliates or successors.
(qq) "Sufficient Clearing Bids" shall have the meaning specified
in paragraph (a) of Section 4 of Part II hereof.
(rr) "Term Selection Agent" shall mean Goldman, Sachs & Co.,
unless or until another investment banking firm has been appointed as
such by a resolution of the Board of Directors of the Corporation.
(ss) "Trust Company" shall mean a bank or trust company appointed
as such by a resolution of the Board of Directors.
(tt) "U.S. Government Securities Dealer" shall mean Goldman,
Sachs & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, and
The First Boston Corporation or, in lieu of any thereof, their
respective affiliates or successors.
PART II
1. Certain Definitions.
Capitalized terms not defined in the Section 1 shall have the
respective meanings specified in Part I of this paragraph 6(c) of Article
Fourth. As used in this Part II, the following terms shall have the following
meanings, unless the context otherwise requires:
(a) "Affiliate" shall mean any Person known to the Trust Company
to be controlled by, in control of or under common control with the
Corporation.
(b) "Agent Member" shall mean the member of the Securities
Depository that will act on behalf of a Bidder and is identified as
such in such Bidder's Purchaser's Letter.
(c) "Available Series D Stock" shall have the meaning specified
in paragraph (a) of Section 4 of this Part II.
(d) "Bid" and "Bids" shall have the respective meanings specified
in paragraph (a) of Section 2 of this Part II.
(e) "Bidder" and Bidders" shall have the respective meanings
specified in paragraph (a) of Section 2 of this Part II.
(f) "Broker-Dealer" shall mean any broker-dealer, or other
entity permitted by law to perform the function required of a
broker-dealer in this Part II, that is a member of, or a participant
in, the Securities Depository, and that has been selected
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by the Corporation and has entered into a Broker-Dealer Agreement with
the Trust Company that remains effective.
(g) "Broker-Dealer Agreement" shall mean an agreement between
the Trust Company and a Broker-Dealer pursuant to which such
Broker-Dealer agrees to follow the procedures specified in this Part
II.
(h) "Existing Holder," when used with respect to shares of
Series D Stock, shall mean a Person who signed a Purchaser's Letter
and is listed as the beneficial owner of such shares of Series D Stock
in the records of the Trust Company.
(i) "Hold Order" and "Hold Orders" shall have the respective
meanings specified in paragraph (a) of Section 2 of this Part II.
(j) "Order" and "Orders" shall have the respective meanings
specified in paragraph (a) of Section 2 of this Part II.
(k) "Person" shall mean and include an individual, a
partnership, a corporation, a trust, an incorporated association, a
joint venture or other entity or a government or any agency or
political subdivision thereof.
(l) "Potential Holder" shall mean any Person, including any
Existing Holder, (i) who shall have executed a Purchaser's Letter and
(ii) who may be interested in acquiring shares of Series D Stock (or,
in the case of an Existing Holder, additional shares of Series D
Stock).
(m) "Purchaser's Letter" shall mean a Master Purchaser's Letter,
the form of which is attached hereto, addressed to the Corporation,
the Trust Company and an Agent Member in which a Person agrees, among
other things, to offer to purchase, to offer to sell and/or to sell
shares of Series D Stock as set forth in this Part II, or a similar
letter containing substantially the same information and
representations, or such other letter as the Board of Directors shall
approve.
(n) "Sell Order" and "Sell Orders" shall have the respective
meanings specified in paragraph (a) of Section 2 of this Part II.
(o) "Submission Deadline" shall mean 12:30 P.M., New York City
time, on any Auction Date or such other time on any Auction Date by
which Broker-Dealers are required to submit Orders to the Trust
Company as specified by the Trust Company from time to time.
(p) "Submitted Bid" and "Submitted Bids" shall have the respective
meanings specified in paragraph (a) of Section 4 of this Part II.
(q) "Submitted Hold Order" and "Submitted Hold Orders" shall
have the respective meanings specified in paragraph (a) of Section 4
of this Part II.
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(r) "Submitted Order" and "Submitted Orders" shall have the
respective meanings specified in paragraph (a) of Section 4 of
this Part II.
(s) "Submitted Sell Order" and "Submitted Sell Orders"
shall have the respective meanings specified in paragraph (a) of
Section 4 of this Part II.
(t) "Winning Bid Rate" shall have the meaning specified in
paragraph (a) of Section 4 of this Part II.
2. Orders by Existing Holders and Potential Holders.
(a) On or prior to the Submission Deadline on each Auction Date:
(i) each Existing Holder may submit to a Broker-Dealer
information as to:
(A) the number of Outstanding shares,
if any, of Series D Stock held by such Existing
Holder which such Existing Holder desires to
continue to hold without regard to the Applicable
Rate for the next succeeding Dividend Period;
(B) the number of Outstanding shares,
if any, of Series D Stock that such Existing
Holder desires to continue to hold if the
Applicable Rate for the next succeeding Dividend
Period shall not be less than the rate per annum
specified by such Existing Holder; and/or
(C) the number of Outstanding shares,
if any, of Series D Stock held by such Existing
Holder which such Existing Holder offers to sell
without regard to the Applicable Rate for the next
succeeding Dividend Period; and
(ii) one or more Broker-Dealers, using lists of Potential
Holders, shall in good faith for the purpose of conducting a
competitive Auction in a commercially reasonable manner, contact
Potential Holders, including Persons that are not Existing
Holders, on such lists to determine the number of shares, if any,
of Series D Stock which each such Potential Holder offers to
purchase, provided that the Applicable Rate for the next
succeeding Dividend Period shall not be less than the rate per
annum specified by such Potential Holder.
For the purposes hereof, the communication to a Broker-Dealer of
information referred to in clause (i)(A), (i)(B), (i)(C) or (ii) of this
paragraph (a) is hereinafter referred to as an "Order" and collectively as
"Orders" and each Existing Holder and each Potential Holder placing
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an Order is hereinafter referred to as a "Bidder" and collectively as "Bidders";
an Order containing the information referred to in clause (i)(A) of this
paragraph (a) is hereinafter referred to as a "Hold Order" and collectively as
"Hold Orders"; an Order containing the information referred to in clause
(i)(B) or (ii) of this paragraph (a) is hereinafter referred to as a "Bid" and
collectively as "Bids"; and an Order containing the information referred to in
clause (i)(C) of this paragraph (a) is hereinafter referred to as a "Sell Order"
and collectively as "Sell Orders."
(b)(i) A Bid by an Existing Holder shall constitute an irrevocable
offer to sell:
(A) the number of Outstanding shares of
Series D Stock specified in such Bid if the
Applicable Rate determined on such Auction
Date shall be less than such specified rate;
or
(B) such number or a lesser number of
Outstanding shares of Series D Stock to be
determined as set forth in subparagraph
(a)(iv) of Section 5 of this Part II if the
Applicable Rate determined on such Auction
Date shall be equal to such specified rate;
or
(C) a lesser number of Outstanding
shares of Series D Stock to be determined as
set forth in subparagraph (b)(iii) of Section
5 of this Part II if such specified rate
shall be higher than the Maximum Rate and
Sufficient Clearing Bids do not exist.
(b)(ii) A Sell Order by an Existing Holder shall constitute an
irrevocable offer to sell:
(A) the number of Outstanding shares of
Series D Stock specified in such Sell Order;
or
(B) such number or a lesser number of
Outstanding shares of Series D Stock as set
forth in subparagraph (b)(iii) of Section 5
of this Part II if Sufficient Clearing Bids
do not exist.
(b)(iii) A Bid by a Potential Holder shall constitute an irrevocable
offer to purchase:
(A) the number of Outstanding shares of
Series D Stock specified in such Bid if the
Applicable Rate determined on such Auction
Date shall be higher than such specified
rate; or
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(B) such number or a lesser number
of Outstanding shares of Series D Stock
as set forth in subparagraph (a)(v) of
Section 5 of this Part II if the
Applicable Rate determined on such Auction
Date shall be equal to such specified rate.
3. Submission of Orders by Broker-Dealers to Trust Company.
(a) Each Broker-Dealer shall submit in writing to the Trust Company prior
to the Submission Deadline on each Auction Date all Orders obtained by such
Broker-Dealer and specifying with respect to each Order:
(i) the name of the Bidder placing such Order;
(ii) the aggregate number of shares of Series D Stock that are
the subject of such Order;
(iii) to the extent that such Bidder is an Existing Holder:
(A) the number of shares, if any, of Series
D Stock subject to any Hold Order placed by such
Existing Holder;
(B) the number of shares, if any, of Series D
Stock subject to any Bid placed by such Existing
Holder and the rate specified in such Bid; and
(C) the number of shares, if any, of Series D
Stock subject to any Sell Order placed by such
Existing Holder; and
(iv) to the extent such Bidder is a Potential Holder, the rate
specified in such Potential Holder's Bid.
(b) If any rate specified in any Bid contains more than three figures to
the right of the decimal point, the Trust Company shall round such rate up to
the next highest one thousandth (.001) of 1%.
(c) If an Order or Orders covering all of the outstanding shares of Series
D Stock held by any Existing Holder is not submitted to the Trust Company prior
to the Submission Deadline, the Trust Company shall deem a Hold Order to have
been submitted on behalf of such Existing Holder covering the number of
Outstanding shares of Series D Stock held by such Existing Holder and not
subject to Orders submitted to the Trust Company.
(d) If one or more Orders covering in the aggregate more than the number
of Outstanding shares of Series D Stock held by any Existing Holder are
submitted
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to the Trust Company, such Orders shall be considered valid as follows and in
the following order of priority:
(i) all Hold Orders shall be considered valid, but only up to and
including in the aggregate the number of shares of Series D Stock held by
such Existing Holder, and, solely for purposes of allocating compensation
among the Broker-Dealers submitting Hold Orders, if the number of shares
of Series D Stock held by such Existing Holder is less than the aggregate
number of shares that are the subject of such Existing Holder's Hold
Orders, the number of shares subject to each Hold Order shall be reduced
pro rata to cover the number of shares of Series D Stock held by such
Existing Holder;
(ii)(A) any Bid shall be considered valid up to and including the
excess of the number of outstanding shares of Series D Stock held by such
Existing Holder over the number of shares of Series D Stock subject to any
Hold Order referred to in subparagraph (i) above;
(ii)(B) subject to clause (A), if more than one Bid with the same rate
is submitted on behalf of such Existing Holder and the number of shares of
Series D Stock subject to such Bids is greater than such excess, such Bids
shall be considered valid up to the amount of such excess, and, solely for
purposes of allocating compensation among the Broker-Dealers submitting
Bids with the same rate, the number of shares of Series D Stock subject to
each Bid with the same rate shall be reduced pro rata to cover the number
of shares of Series D Stock equal to such excess;
(ii)(C) subject to clause (A), if more than one Bid with different
rates is submitted on behalf of such Existing Holder, such Bids shall be
considered valid in the ascending order of their respective rates up to the
amount of such excess; and
(ii)(D) in any such event the number, if any, of such shares subject
to Bids not valid under this subparagraph (ii) shall be treated as the
subject of a Bid by a Potential Holder; and
(iii) all Sell Orders shall be considered valid but only up to and
including in the aggregate the excess of the number of Outstanding shares
of Series D Stock held by such Existing Holder over the sum of the shares
of Series D Stock subject to Hold Orders referred to in subparagraph (i)
and valid Bids by Existing Holders referred to in subparagraph (ii) above.
(e) If more than one Bid is submitted on behalf of any Potential Holder,
each Bid submitted shall be a separate Bid with the rate therein specified.
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4. Determination of Sufficient Clearing Bids, Winning Bid Rate and
Applicable Rate.
(a) Not earlier than the Submission Deadline on each Auction Date, the
Trust Company shall assemble all Orders submitted or deemed submitted to it by
the Broker-Dealers (each such Order as submitted or deemed submitted by a
Broker-Dealer being hereinafter referred to individually as a "Submitted Hold
Order," a "Submitted Bid" or a "Submitted Sell Order," as the case may be, or as
a "Submitted Order" and collectively as "Submitted Hold Orders," "Submitted
Bids" or "Submitted Sell Orders," as the case may be, or as "Submitted Orders"
and shall determine:
(i) the excess of the total number of Series D Stock over the
number of Outstanding shares of Series D Stock that are the subject of
Submitted Hold Orders (such excess being hereinafter referred to as the
"Available Series D Stock");
(ii) from the Submitted Orders whether:
(A) the number of Outstanding shares of Series D Stock that
are the subject of Submitted Bids by Potential Holders specifying
one or more rates equal to or lower than the Maximum Rate exceeds or
is equal to the sum of:
(I) the number of Outstanding shares of Series D
Stock that are the subject of Submitted Bids by Existing
Holders specifying one or more rates higher than the Maximum
Rate, and
(II) the number of Outstanding shares of Series D
Stock that are subject to Submitted Sell Orders (in the
event of such excess or such equality (other than because
the sum of the number of shares of Series D Stock in clauses
(I) and (II) above is zero because all of the outstanding
shares of Series D Stock are the subject of Submitted Hold
Orders), such Submitted Bids in clause (A) above being
hereinafter referred to collectively as "Sufficient Clearing
Bids"); and
(iii) if Sufficient Clearing Bids exist, the lowest rate specified
in the Submitted Bids (the "Winning Bid Rate") which if:
(A)(I) each Submitted Bid from Existing Holders specifying
such lowest rate and (II) all other Submitted Bids from Existing
Holders specifying lower rates were accepted, thus entitling such
Existing Holders to continue to hold the shares of Series D
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<PAGE>
Stock that are the subject of such Submitted Bids; and
(B)(I) each Submitted Bid from Potential Holders
specifying such lowest rate and (II) all other Submitted
Bids from Potential Holders specifying lower rates were
accepted, thus entitling the Potential Holders to purchase
the shares of Series D Stock that are the subject of those
Submitted Bids, would result in such Existing Holders
described in clause (A) continuing to hold an aggregate
number of Outstanding shares of Series D Stock which, when
added to the number of Outstanding shares of Series D Stock
to be purchased by such Potential Holders described in
clause (B), would equal not less than the Available Series
D Stock.
(b) Promptly after the Trust Company has made the determinations pursuant
to paragraph (a) of this Section 4, the Trust Company shall advise the
Corporation of the Maximum Rate and, based on such determinations, the
Applicable Rate for the next succeeding Dividend Period as follows:
(i) if Sufficient Clearing Bids exist, that the
Applicable Rate for the next succeeding Dividend Period shall be
equal to the Winning Bid Rate so determined;
(ii) if Sufficient Clearing Bids do not exist (other than
because all of the Outstanding shares of Series D Stock are the
subject of Submitted Hold Orders), then (a) if the Term Selection
Agent has not given a Notice of Long-Term Dividend Period with
respect to the next succeeding Dividend Period or has given a
Notice of Revocation with respect thereto or such Notice of Long-
Term Dividend Period shall be deemed to have been revoked, the
Applicable Rate for such next succeeding Dividend Period shall be
the Maximum Rate on the Auction Date for a Short-Term Dividend
Period and (b) if the Term Selection Agent has given a Notice of
Long-Term Dividend Period with respect to the next succeeding
Dividend Period and has not given a Notice of Revocation with
respect thereto and such Notice of Long-Term Dividend Period
shall not have been deemed revoked, such next succeeding Dividend
Period shall, notwithstanding such Notice of Long-Term Dividend
Period, be a Short-Term Dividend Period, and the Applicable Rate
for such next succeeding Dividend Period shall be the greatest of
(i) the Applicable Rate in effect immediately prior to the
applicable Auction, (ii) the Maximum Rate on the Auction Date for
a Short-Term Dividend Period or (iii) the Maximum Rate on the
Auction Date for the specified Long-Term Dividend Period, or
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<PAGE>
(iii) if all the Outstanding shares of Series D Stock
are the subject of Submitted Hold Orders, that the
Applicable Rate for the next succeeding Dividend Period
shall (1) in the case of a Short-Term Dividend Period, be
equal to 59% of the 60-day "AA" Composite Commercial Paper
Rate in effect on the date of such Auction; and (2) in the
case of a Long-Term Dividend Period, 59% of the Reference
Rate in effect on the date of such Auction.
5. Acceptance and Rejection of Submitted Bids and Submitted Sell
Orders and Allocation of Shares.
Based on the determinations made pursuant to paragraph (a) of Section
4 of this Part II, the Submitted Bids and Submitted Sell Orders shall be
accepted or rejected and the Trust Company shall take such other action as set
forth below:
(a) If Sufficient Clearing Bids have been made, subject to the
provisions of paragraphs (c), (d) and (e) of this Section 5, Submitted
Bids and Submitted Sell Orders shall be accepted or rejected as
follows in the following order of priority and all other Submitted
Bids shall be rejected:
(i) the Submitted Sell Orders of Existing Holders shall
be accepted and the Submitted Bid of each of the Existing
Holders specifying any rate that is higher than the Winning
Bid Rate shall be rejected, thus requiring each such
Existing Holder to sell the shares of Series D Stock that
are the subject of such Submitted Bid;
(ii) the Submitted Bid of each of the Existing Holders
specifying any rate that is lower than the Winning Bid Rate
shall be accepted, thus entitling each such Existing Holder
to continue to hold the shares of Series D Stock that are
the subject of each Submitted Bid;
(iii) the Submitted Bid of each of the Potential
Holders specifying any rate that is lower than the Winning
Bid Rate shall be accepted;
(iv) the Submitted Bid of each of the Existing Holders
specifying a rate that is equal to the Winning Bid Rate
shall be accepted, thus entitling each such Existing Holder
to continue to hold the shares of Series D Stock that are
the subject of such Submitted Bid, unless the number of
outstanding shares of Series D Stock subject to all such
Submitted Bids shall be greater than the number of shares of
Series D Stock ("remaining shares") equal to the excess of
the Available Series D Stock over the number of shares of
Series D Stock subject to Submitted Bids described in
subparagraphs (ii) and (iii) of this paragraph (a), in which
event the Submitted Bids of each such Existing Holder shall
be rejected, and each such Existing Holder shall be required
to sell shares of Series D Stock but only in
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an amount equal to the difference between (A) the number of
outstanding shares of Series D Stock then held by such
Existing Holder subject to such Submitted Bid and (B) the
number of shares of Series D Stock obtained by multiplying
the number of remaining shares by a fraction the numerator
of which shall be the number of Outstanding shares of Series
D Stock held by such Existing Holder subject to such
Submitted Bid and the denominator of which shall be the sum
of the number of Outstanding shares of Series D Stock
subject to such Submitted Bids made by all such Existing
Holders that specified a rate equal to the Winning Bid Rate;
and
(v) the Submitted Bid of each of the Potential Holders
specifying a rate that is equal to the Winning Bid Rate
shall be accepted but only in an amount equal to the number
of shares of Series D Stock obtained by multiplying the
difference between the Available Series D Stock and the
number of shares of Series D Stock subject to Submitted Bids
described in subparagraphs (ii), (iii) and (iv) of this
paragraph (a) by a fraction the numerator of which shall be
the number of Outstanding shares of Series D Stock subject
to such Submitted Bid and the denominator of which shall be
the sum of the number of outstanding shares of Series D
Stock subject to such Submitted Bids made by all such
Potential Holders that specified a rate equal to the Winning
Bid Rate.
(b) If Sufficient Clearing Bids have not been made (other than
because all of the Outstanding shares of Series D Stock are subject to
Submitted Hold Orders), subject to the provisions of paragraphs (c),
(d) and (e) of this Section 5, Submitted Orders shall be accepted or
rejected as follows in the following order of priority and all other
Submitted Bids shall be rejected:
(i) the Submitted Bid of each Existing Holder
specifying any rate that is equal to or lower than the
Maximum Rate shall be accepted, thus entitling such Existing
Holder to continue to hold the shares of Series D Stock that
are the subject of such Submitted Bid;
(ii) the Submitted Bid of each Potential Holder
specifying any rate that is equal to or lower than the
Maximum Rate shall be accepted; and
(iii) the Submitted Bids of each Existing Holder
specifying any rate that is higher than the Maximum Rate
shall be rejected and the Submitted Sell Orders of each
Existing Holder shall be accepted, in both cases only in an
amount equal to the difference between (A) the number of
Outstanding shares of Series D Stock then held by such
Existing Holder subject to such Submitted Bid or Submitted
Sell Order and (B) the number of shares of Series D Stock
obtained by multiplying the difference between the Available
Series D Stock and the aggregate number of shares of Series
D Stock subject to
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<PAGE>
Submitted Bids described in subparagraphs (i) and (ii) of this
paragraph (b) by a fraction the numerator of which shall be the
number of Outstanding shares of Series D Stock held by such
Existing Holder subject to such Submitted Bid or Submitted Sell
Order and the denominator of which shall be the number of
Outstanding shares of Series D Stock subject to all such
Submitted Bids and Submitted Sell Orders.
(c) If all of the Outstanding shares of Series D Stock are the subject of
Submitted Hold Orders, all Submitted Bids shall be rejected.
(d) If, as a result of the procedures described in paragraph (a) or (b) of
this Section 5, any Existing Holder would be entitled or required to sell, or
any Potential Holder would be entitled or required to purchase, a fraction of a
share of Series D Stock on any Auction Date, the Trust Company, in such manner
as it shall determine in its sole discretion, shall round up or down the number
of shares of Series D Stock to be purchased or sold by any Existing Holder or
Potential Holder on such Auction Date so that the number of shares purchased or
sold by each Existing Holder or Potential Holder on such Auction Date shall be
whole shares of Series D Stock.
(e) If, as a result of the procedures described in paragraph (a) of this
Section 5, any Potential Holder would be entitled or required to purchase less
than a whole share of Series D Stock on any Auction Date, the Trust Company, in
such manner as it shall determine in its sole discretion, shall allocate shares
for purchase among Potential Holders so that only whole shares of Series D Stock
are purchased on such Auction Date by any Potential Holder, even if such
allocation results in one or more of such Potential Holders not purchasing
shares of Series D Stock on such Auction Date.
(f) Based on the results of each Auction, the Trust Company shall
determine the aggregate number of shares of Series D Stock to be purchased and
the aggregate number of shares of Series D Stock to be sold by Potential Holders
and Existing Holders on whose behalf each Broker-Dealer submitted Bids or Sell
Orders and, with respect to each Broker-Dealer, to the extent that such
aggregated number of shares to be purchased and such aggregate number of shares
to be sold differ, determine to which other Broker-Dealer or Broker-Dealers
acting for one or more purchasers such Broker-Dealer shall deliver, or from
which other Broker-Dealer or Broker-Dealers acting for one or more sellers such
Broker-Dealer shall receive, as the case may be, shares of Series D Stock.
6. Miscellaneous.
(a) The Board of Directors may interpret the provisions of this Part II to
resolve any inconsistency or ambiguity which may arise or be revealed in
connection which the Auction Procedures provided for herein, and if such
inconsistency or ambiguity reflects an inaccurate provision hereof, the Board of
Directors may, in
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appropriate circumstances, authorize the filing of a Certificate of
Correction or Certificate of Amendment.
(b) So long as the Applicable Rate is based on the results of an
Auction, an Existing Holder (i) may sell, transfer or otherwise dispose of
shares of Series D Stock only pursuant to a Bid or Sell Order in accordance
with the procedures described in this Part II or to or through a Broker-
Dealer or to a Person that has delivered a signed copy of a Purchaser's
Letter to the Trust Company, provided that in the case of all transfers
other than pursuant to Auctions such Existing Holder or its Broker-Dealer
advises the Trust Company of such transfer, and (ii) shall have the
ownership of the shares of Series D Stock held by it maintained in book
entry form by the Securities Depository in the account of its Agent Member,
which in turn will maintain records of such Existing Holder's beneficial
ownership.
(c) Neither the Corporation nor any Affiliate thereof may submit an
Order in any Auction. Any Broker-Dealer that is an Affiliate of the
Corporation may not submit Bids to purchase shares of Series D Stock in
Auctions for its own account, and if such affiliated Broker-Dealer has
otherwise acquired shares for its own account, it must submit a Sell Order
in the next Auction with respect to such shares.
(d) The Trust Company shall reject any Submitted Order of the
Corporation or an Affiliate, except for Sell Orders of affiliated Broker-
Dealers.
(e) From and after the occurrence of a Rate Adjustment Event, shares
of Series D Stock shall be registered for transfer or exchange and new
certificates issued upon surrender of the old certificates deemed by the
Trust Company (or any other transfer agent or registrar appointed by the
Corporation) properly endorsed for transfer with all necessary endorsers'
signatures guaranteed in such manner and form as the Trust Company (or such
other transfer agent or registrar) may require by a guarantor reasonably
believed by the Trust Company (or such other transfer agent or registrar)
to be responsible, accompanied by such assurances as the Trust Company (or
such other transfer agent or registrar) shall deem necessary or appropriate
to evidence the genuineness and effectiveness of each necessary endorsement
and satisfactory evidence of compliance with all applicable laws relating
to the collection of taxes or funds necessary for the payment of such
taxes.
(d) 6.25% Cumulative Convertible Preferred Stock, Series E
1. Designation.
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<PAGE>
The designation of said series of Preferred Stock shall be 6.25% Cumulative
Convertible Preferred Stock, Series E (the "Series E Stock"). The maximum number
of shares of Series E Stock shall be 50,000. The Series E Stock shall be without
par value (stated value of $1,000.00 per share).
2. Dividends.
(a) The Series E Stock shall be entitled to receive dividends at an annual
rate of $62.50 per share. Such dividends shall accrue and be cumulative
from the date of original issuance of the Series E Stock and shall be
payable, when and as declared by the Board, on the 15th day of February,
May, August and November of each year commencing the 15th day of May 1992.
Each such dividend shall be paid to the holders of record of the Series E
Stock as they appear on the stock register of the Corporation at the close
of business on the applicable record date, which shall be the last day of
the month preceding the month in which the dividend payment date of such
dividend occurs, provided that no dividend shall be paid on shares of
Series E Stock redeemed on a redemption date which is between a dividend
payment record date and the corresponding dividend payment date (an amount
equal to such dividend being payable with the redemption price pursuant to
Section 4(a)). Dividends on account of arrears or any past dividend periods
may be declared and paid at any time, without reference to any regular
dividend payment date, to holders of record on such date, not exceeding 45
days preceding the payment date thereof, as may be fixed by the Board.
(b) No full dividends shall be declared or paid or set aside for payment on
Preferred Stock of any series ranking, as to dividends, on a parity with or
junior to the Series E 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 E Stock for all dividend payment periods terminating on or prior
to the date of payment of such full cumulative dividends. When dividends
are not paid in full, as aforesaid, upon the Series E Stock and any other
Preferred Stock ranking on a parity as to dividends with the Series E
Stock, all dividends declared upon the Series E Stock and any other
Preferred Stock ranking on a parity as to dividends with the Series E Stock
shall be declared pro rata so that the amount of dividends declared per
share on the Series E Stock and such other Preferred Stock shall in all
cases bear to each other the same ratio that accrued dividends per share on
the Series E Stock and such other Preferred Stock bear to each other.
Holders of Series E Stock shall not be entitled to any dividend, whether
payable in cash, property or stocks, in excess of the full cumulative
dividends, as herein provided, on the Series E Stock. No interest, or sum
of money in lieu of interest, shall be payable in respect of any dividend
payment on the Series E Stock which may be in arrears.
(c) So long as any shares of Series E Stock are outstanding, no dividend
(other than a dividend in Common Stock or in any other stock ranking junior
to the Series E Stock as to dividends and upon liquidation and other than
as provided in paragraph (b) of this Section 2) shall be declared or paid
or set aside for payment or other distribution declared or made upon the
Common Stock or upon any other stock ranking junior to or on a parity with
the Series E Stock as to dividends or
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<PAGE>
upon liquidation, nor shall any Common Stock or any other stock of the
Corporation ranking junior to or on a parity with the Series E Stock as to
dividends or upon liquidation, or any depositary shares representing such
stock, be redeemed, purchased or otherwise acquired for any consideration
(or any moneys paid to or made available for a sinking fund or for the
redemption of any such stock) by the Corporation (except by conversion into
or exchange for stock of the Corporation ranking junior to the Series E
Stock as to dividends and upon liquidation) unless, in each case, the full
cumulative dividends on all outstanding shares of the Series E Stock shall
have been paid for all past dividend payment periods.
(d) Dividends payable on the Series E Stock for any period less than a
full quarterly dividend period, and for the dividend period beginning on
the date of issuance of the Series E Stock, shall be computed on the basis
of a 360-day year consisting of twelve 30-day months.
3. Voting.
(a) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of a least
66-2/3% of all of the shares of the Series E Stock and all other series of
Preferred Stock ranking on a parity with the Series E Stock, either as to
dividends or upon liquidation, at the time outstanding, given in person or
by proxy, either in writing or by a vote at a meeting called for the
purpose at which the holders of shares of Series E Stock and shares of
Preferred Stock ranking on a parity with the Series E Stock, either as to
dividends or upon liquidation, shall vote together as a separate class,
shall be necessary for authorizing, effecting or validating the amendment,
alteration or repeal of any of the provisions of this Restated Certificate
of Incorporation or of any certificate amendatory thereof or supplemental
thereto (including any Certificate of Designations or any similar document
relating to the Series E Stock or any series of Preferred Stock ranking on
a parity with the Series E Stock, either as to dividends or upon
liquidation) which would adversely affect the powers, preferences, rights
or privileges of the Series E Stock or the Preferred Stock ranking on a
parity with the Series E Stock, either as to dividends or upon liquidation;
provided, however, that if any such amendment, alteration or repeal would
adversely affect the powers, preferences, rights or privileges of the
Series E Stock or one or more series of the Preferred Stock ranking on a
parity with the Series E Stock, either as to dividends or upon liquidation,
but shall not so affect the entire class, then only the shares of the one
or more series so affected shall be considered to be a separate class
entitled to vote upon or consent to such amendment, alteration or repeal;
(b) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of at
least 66-2/3% of all of the shares of the Series E Stock and all other
series of Preferred Stock ranking on a parity with the Series E Stock,
either as to dividends or upon liquidation, at the time outstanding, given
in person or by proxy, either in writing or by a vote at a meeting called
for the purpose at which the holders of shares of the Series E Stock and
such
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other series of Preferred Stock ranking on a parity with the Series E
Stock, either as to dividends or upon liquidation, shall vote together as a
single class without regard to series, shall be necessary for authorizing,
effecting or validating the creation, authorization or issue of any shares
of any class of stock of the Corporation ranking prior to the shares of the
Series E Stock and such other series of Preferred Stock ranking on a parity
with the Series E Stock, either as to dividends or upon liquidation, as to
dividends or upon liquidation, or the reclassification of any authorized
stock of the Corporation into any such prior shares, or the creation,
authorization or issue of any obligation or security convertible into or
evidencing the right to purchase any such prior shares; and
(c) If at the time of any annual meeting of stockholders for the election
of directors a default in preference dividends on the Series E Stock or the
Preferred Stock ranking on a parity with the Series E Stock, either as to
dividends or upon liquidation, shall exist, the number of directors
constituting the Board of Directors shall be increased by two, and the
holders of the Series E Stock and the Preferred Stock of all series ranking
on a parity with the Series E Stock, either as to dividends or upon
liquidation, shall have the right at such meeting, voting together as a
single class without regard to series, to the exclusion of the holders of
Common Stock, to elect two directors of the Corporation to fill such newly
created directorships. Such right shall continue until there are no
dividends in arrears upon the Series E Stock and the Preferred Stock
ranking on a parity with the Series E Stock, either as to dividends or upon
liquidation. Each director elected by the holders of shares of Series E
Stock and Preferred Stock ranking on a parity with the Series E Stock,
either as to dividends or upon liquidation, (herein called a "Preferred
Director") shall continue to serve as such director for the full term for
which he shall have been elected, notwithstanding that prior to the end of
such term a default in preference dividends shall cease to exist. Any
Preferred Director may be removed without cause by, and shall not be
removed without cause except by, the vote of the holders of record of the
outstanding shares of Series E Stock and Preferred Stock ranking on a
parity with the Series E Stock, either as to dividends or upon liquidation,
voting together as a single class without regard to series, at a meeting of
the stockholders, or of the holders of shares of Series E Stock and
Preferred Stock ranking on a parity with the Series E Stock, either as to
dividends or upon liquidation, called for that purpose. So long as a
default in preference dividends on the Series E stock or the Preferred
Stock ranking on a parity with the Series E Stock, either as to dividends
or upon liquidation, shall exist, (A) any vacancy in the office of
Preferred Director may be filled (except as provided in the following
clause (B)) by an instrument in writing signed by the remaining Preferred
Director and filed with the Corporation and (B) in the case of the removal
of any Preferred Director, the vacancy may be filled by the vote of the
holders of the outstanding shares of Series E Stock and Preferred Stock
ranking on a parity with the Series E Stock, either as to dividends or upon
liquidation, voting together as a single class without regard to series, at
the same meeting at which such removal shall be voted. Each director
appointed as aforesaid by the remaining Preferred Director shall be deemed,
for all purposes hereof, to be a Preferred Director. Whenever the term of
office of the Preferred Directors shall end and a default in preference
dividends shall no longer exist, the number of directors constituting the
Board of Directors shall be reduced by two.
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For the purposes hereof, a "default in preference dividends" on the Series
E Stock or the Preferred Stock ranking on a parity with the Series E Stock,
either as to dividends or upon liquidation, shall be deemed to have
occurred whenever the amount of accrued dividends upon the Series E Stock
or any series of the Preferred Stock ranking on a parity with the Series E
Stock, either as to dividends or upon liquidation, shall be equivalent to
six full quarterly dividends (which, with respect to any Series E Stock or
any Preferred Stock ranking on a parity with the Series E Stock, either as
to dividends or upon liquidation, providing for other than quarterly
dividend periods, shall be deemed to be dividends in respect of a number of
dividend periods containing not less than 540 days) or more, and, having so
occurred, such default shall be deemed to exist thereafter until, but only
until, all accrued dividends on all shares of Series E Stock and Preferred
Stock ranking on a parity with the Series E Stock, either as to dividends
or upon liquidation, of each and every series then outstanding shall have
been paid to the end of the last preceding dividend period.
(d) Whenever the holders of the Series E stock shall be entitled to vote
pursuant to this resolution, such holders shall have one vote for each
whole share of Series E Stock.
4. Redemption.
(a) The Corporation may, at its option, but only with prior approval of
the Board of Governors of the Federal Reserve System, redeem the Series E
Stock, as a whole or in part, at any time or from time to time prior to the
conversion thereof pursuant to Section 5, at the redemption price indicated
below if such redemption is during the periods indicated plus, in each
case, accrued and unpaid dividends thereon through the day preceding the
date fixed for redemption, whether or not earned or declared:
<TABLE>
<CAPTION>
Redemption Price
(as a Percentage of
Year liquidation preference)
---- ----------------------
<S> <C>
February 15, 1995 through February 14, 1996 104.375%
February 15, 1996 through February 14, 1997 103.750%
February 15, 1997 through February 14, 1998 103.125%
February 15, 1998 through February 14, 1999 102.500%
February 15, 1999 through February 14, 2000 101.875%
February 15, 2000 through February 14, 2001 101.250%
February 15, 2001 through February 14, 2002 100.625%
February 15, 2002 and thereafter 100.000%
</TABLE>
provided, however, that the Series E Stock may not be so redeemed prior to
February 15, 1995.
(b) In the event that fewer than all the outstanding shares of Series E
Stock are to be redeemed, the number of shares of Series E Stock to be
redeemed shall be
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determined by the Board and the shares of Series E Stock to be redeemed
shall be selected by lot or pro rata as may be determined by the Board or
by any other method as may be determined by the Board in its sole
discretion to be equitable.
(c) In the event the Corporation shall redeem the Series E Stock, notice
of such redemption shall be given by first class mail, postage prepaid,
mailed not less than 20 nor more than 60 days prior to the redemption date,
to each holder of record of the Series E Stock to be redeemed, at such
holder's address as the same appears on the stock register of the
Corporation. Each such notice shall state: (i) the redemption date; (ii)
the number of shares of Series E Stock to be redeemed and, if fewer than
all the shares of Series E Stock held by such holder are to be redeemed,
the number of shares of Series E Stock to be redeemed from such holder;
(iii) the redemption price; (iv) the Conversion Price then in effect; (v)
the place or places where certificates for such shares of Series E Stock
are to be surrendered for payment of the redemption price; and (vi) that
dividends on the shares of Series E Stock to be redeemed will cease to
accrue on such redemption date.
(d) Notice having been mailed as aforesaid, from and after the redemption
date (unless default shall be made by the Corporation in providing money
for the payment of the redemption price) dividends on the shares of Series
E Stock so called for redemption shall cease to accrue, and said shares of
Series E Stock shall no longer be deemed to be outstanding, and all rights
of the holders thereof as stockholders of the Corporation (except the right
to receive from the Corporation the redemption price) shall cease. Upon
surrender in accordance with said notice of the certificates for any shares
of Series E Stock so redeemed (properly endorsed or assigned for transfer,
if the Board shall so require and the notice shall so state), such shares
of Series E Stock shall be redeemed by the Corporation at the redemption
price aforesaid. In case fewer than all the shares of Series E Stock
represented by any such certificate are redeemed, a new certificate shall
be issued representing the unredeemed shares of Series E Stock without cost
to the holder thereof.
(e) Notwithstanding the foregoing provisions of this Section 4, if any
dividends on Series E Stock are in arrears, no Series E Stock shall be
redeemed unless all outstanding shares of Series E Stock are simultaneously
redeemed, and the Corporation shall not purchase or otherwise acquire any
Series E Stock or any depositary shares representing Series E Stock;
provided, however, that the foregoing shall not prevent the purchase or
acquisition of Series E Stock or any depositary shares representing Series
E Stock (i) upon the conversion of Series E Stock into shares of Common
Stock pursuant to Section 5, (ii) in exchange for shares of Common Stock or
any other class of stock ranking junior to the Series E Stock as to
dividends or upon liquidation or (iii) pursuant to a purchase or exchange
offer made on the same terms to holders of all outstanding shares of Series
E Stock (treating holders of any depositary shares representing Series E
Stock as holders of a proportionate number of shares of Series E Stock for
these purposes).
5. Conversion.
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(a) Subject to the provisions for adjustment hereinafter set forth, each share
of Series E Stock shall be convertible at the option of the holder thereof, in
the manner hereinafter set forth, into fully paid and nonassessable shares of
Common Stock at the conversion price, determined as hereinafter provided, in
effect on the date of conversion, each share of Series E Stock being credited at
its stated value; provided that if any of the Series E Stock is called for
redemption, the conversion rights pertaining thereto will terminate at the close
of business on the redemption date. The price at which shares of Common Stock
shall be delivered upon conversion of shares of Series E Stock (hereinafter
referred to as the "Conversion Price") shall be initially $62.25 per share of
Common Stock. The Conversion Price shall be adjusted in certain instances as
provided in paragraph (b) of this Section 5.
Any holder of Series E Stock desiring to convert such stock into shares of
Common Stock shall surrender the certificate or certificates for the shares of
Series E Stock being converted, duly endorsed or assigned to the Corporation or
in blank, at the principal office of the Corporation or at a bank or trust
company appointed by the Corporation for that purpose, accompanied by a written
notice of conversion specifying the number of shares of Series E Stock to be
converted and the name or names in which such holder wishes the certificate or
certificates for shares of Common Stock to be issued; in case such notice shall
specify a name or names other than that of such holder, such notice shall be
accompanied by payment of all transfer taxes payable upon the issue of shares of
Common Stock in such name or names. In case less than all of the shares of
Series E Stock represented by a certificate are to be converted by a holder,
upon such conversion the Corporation shall issue and deliver or cause to be
issued and delivered to such holder a certificate or certificates for the shares
of Series E Stock not so converted. The holders of shares of Series E Stock at
the close of business on a dividend payment record date shall be entitled to
receive the dividend payable on such shares of Series E Stock (except shares of
Series E Stock redeemed on a redemption date between such record date and the
dividend payment date) on the corresponding dividend payment date
notwithstanding the subsequent conversion thereof or the Corporation's default
in payment of the dividend due on such dividend payment date. However, shares of
Series E Stock surrendered for conversion during the period from the close of
business on any dividend payment record date for the Series E Stock to the
opening of business on the corresponding dividend payment date (except shares of
Series E Stock called for redemption on a redemption date during such period)
must be accompanied by payment of an amount equal to the dividend payable on
such shares of Series E Stock on such dividend payment date. A holder of shares
of Series E Stock on a dividend payment record date who (or whose transferee)
converts shares of Series E Stock on a dividend payment date will receive the
dividend payable on such shares of Series E Stock by the Corporation on such
date, and the converting holder need not include payment in the amount of such
dividend upon surrender of shares of Series E Stock for conversion. Except as
provided above, no payment or adjustment will be made on account of accrued or
unpaid dividends upon the conversion of Series E Stock.
As promptly as practicable after the surrender of certificates for shares of
Series E Stock as aforesaid, the Corporation shall issue and shall deliver at
such office to
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such holder, or on his or her written order, a certificate or certificates for
the number of full shares of Common Stock issuable upon the conversion of such
shares in accordance with the provisions of this Section (5), and any fractional
interest in respect of a share of Common Stock arising upon such conversion
shall be promptly settled as provided in paragraph (k) of this Section (5).
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 E
Stock shall have been surrendered and such notice received by the Corporation as
aforesaid; the shares of Series E Stock so surrendered for conversion shall no
longer be deemed to be outstanding and all rights with respect to such shares of
Series E Stock shall cease, except the right of the holders thereof to receive
full shares of Common Stock in exchange therefor and payment for any fractional
shares; 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. All shares of Common
Stock delivered upon conversions of the Series E Stock will upon delivery be
duly and validly issued and fully paid and nonassessable.
(b) The Conversion Price shall be adjusted from time to time as follows:
(i) In case the Corporation shall pay or make a dividend or other
distribution on any class of capital stock of the Corporation in shares of
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 other distribution shall be reduced by
multiplying such Conversion Price by a fraction of which the numerator
shall be the number of shares of Common Stock outstanding at the close of
business on the date fixed for such determination and the denominator shall
be the sum of such number of shares and the total number of shares
constituting such dividend or other distribution, such reduction to become
effective immediately after the opening of business on the day following
the date fixed for such determination.
(ii) In case the Corporation shall issue rights or warrants to all holders
of its shares of Common Stock entitling them to subscribe for or purchase
Common Stock at a price per share less than the current market price per
share (determined as provided in paragraph (c)) of the Common Stock on the
date fixed for the determination of stockholders entitled to receive such
rights or warrants, the Conversion Price in effect at the opening of
business on the day following the date fixed for such determination shall
be reduced by multiplying such Conversion Price by a fraction of which the
numerator shall be the number of shares of Common Stock outstanding at the
close of business on the date fixed for such determination plus the number
of shares of Common Stock which the aggregate offering price of the total
number of shares of Common Stock so offered for subscription or purchase
would
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purchase at such current market price and the denominator shall be the
number of shares of Common Stock outstanding at the close of business on
the date fixed for such determination plus the number of shares of Common
Stock so offered for subscription or purchase, such reduction to become
effective immediately after the opening of business on the day following
the date fixed for such determination.
(iii) In case the Corporation shall, by dividend or otherwise, distribute
to all holders of shares of Common Stock evidences of indebtedness or
assets (including securities, but excluding any rights or warrants referred
to in paragraph (b)(ii), any dividend or distribution paid in cash out of
the surplus of the Corporation and any dividend or distribution referred to
in paragraph (b)(i)), the Conversion Price shall be adjusted so that the
same shall equal the price determined by multiplying the Conversion Price
in effect immediately prior to the close of business on the date fixed for
the determination of stockholders entitled to receive such distribution by
a fraction of which the numerator shall be the current market price per
share (determined as provided in paragraph (c)) of the Common Stock on the
date fixed for such determination, less the then fair market value (as
determined by the Board, whose determination shall be conclusive) of the
portion of the assets or evidences of indebtedness so distributed allocable
to one share of Common Stock, and the denominator shall be such current
market price per share of Common Stock, such adjustment to become effective
immediately prior to the opening of business on the day following the date
fixed for the determination of stockholders entitled to receive such
distribution. Notwithstanding the foregoing, in the event that the
Corporation shall distribute or shall have distributed any rights or
warrants to acquire capital stock ("Rights") pursuant to this subparagraph
(iii), the distribution of separate certificates representing the Rights
subsequent to their initial distribution (whether or not the initial
distribution of the Rights shall have occurred prior to the date of the
issuance of the Series E Stock) shall be deemed to be the distribution of
the Rights for purposes of this subparagraph (iii); provided that the
Corporation may, in lieu of making any adjustment pursuant to this
subparagraph (iii) upon a distribution of separate certificates
representing the Rights, make proper provision so that each holder of
Series E Stock who converts such Series E Stock (or any portion thereof)
(A) before the record date for such distribution of separate certificates
shall be entitled to receive upon conversion shares of Common Stock issued
with Rights and (B) after such record date and prior to the expiration,
redemption or termination of the Rights shall be entitled to receive upon
conversion, in addition to the shares of Common Stock issuable upon
conversion, the same number of Rights as would a holder of the number of
shares of Common Stock that such Series E Stock so converted would have
entitled the holder thereof to purchase in accordance with the terms and
provisions applicable to the Rights if such Series E Stock were converted
immediately prior to the record date for such distribution. Common Stock
owned by or held for the account of the Corporation or any
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majority owned subsidiary shall not be deemed outstanding for the purpose
of any adjustment required under this subparagraph (iii).
(iv) In case the outstanding shares of Common Stock shall be subdivided
into a greater number of shares, the Conversion Price in effect at the
opening of business on the day following the day upon which such
subdivision becomes effective shall be proportionately reduced, and,
conversely, in case outstanding shares of Common Stock shall each be
combined into a smaller number of shares, the Conversion Price in effect at
the opening of business on the day following the day upon which such
combination becomes effective shall be proportionately increased, such
reduction or increase, as the case may be, to become effective immediately
after the opening of business on the day following the day upon which such
subdivision or combination becomes effective.
(v) The reclassification of Common Stock into securities other than
Common Stock (other than any reclassification upon a consolidation or
merger to which paragraph (f) applies) shall be deemed to involve (i) a
distribution of such securities other than Common Stock to all holders of
Common Stock (and the effective date of such reclassification shall be
deemed to be "the date fixed for the determination of stockholders entitled
to receive such distribution" and the "date fixed for such determination"
within the meaning of paragraph (b)(iii)), and (ii) a subdivision or
combination, as the case may be, of the number of shares of Common Stock
outstanding immediately prior to such reclassification into the number of
shares of Common Stock outstanding immediately thereafter (and the
effective date of such reclassification shall be deemed to be "the day upon
which such subdivision becomes effective," or "the day upon which such
combination becomes effective," as the case may be, and "the day upon which
such subdivision or combination becomes effective" within the meaning of
paragraph (b)(iv) of this Section 5.
(c) For the purpose of any computation under paragraphs (b)(ii) and (b)(iii),
the current market price per share of Common Stock on any day shall be deemed to
be the average of the daily Closing Prices for any 15 consecutive Trading Days
selected by the Board commencing not less than 20 nor more than 30 Trading Days
before the day in question.
(d) Notwithstanding the provisions of paragraphs (b) above, no adjustment in
the Conversion Price shall be required unless such adjustment (plus any
adjustments not previously made by reason of this paragraph (d)) would require
an increase or decrease of at least 1% in such price; provided, however, that
any adjustments which by reason of this paragraph (d) are not required to be
made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Section 5 shall be made to the nearest
cent.
(e) The Corporation may make such reductions in the Conversion Price, in
addition to those required by this Section 5, as it considers to be advisable in
order
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to avoid or diminish any income tax to any holder of shares of Common Stock
resulting from any dividend or distribution of stock or issuance of rights or
warrants to purchase or subscribe for stock or from any event treated as such
for income tax purposes or for any other reasons. The Corporation shall have the
power to resolve any ambiguity or correct any error in this Section 5 and its
actions in so doing shall be final and conclusive.
(f) In case the Corporation shall effect any capital reorganization of the
Common Stock (other than a subdivision, combination, capital reorganization or
reclassification provided for in paragraph (b)) or shall consolidate, merge or
engage in a statutory share exchange with or into any other corporation (other
than a consolidation, merger or share exchange in which the Corporation is the
surviving corporation and each share of Common Stock outstanding immediately
prior to such consolidation or merger is to remain outstanding immediately after
such consolidation or merger) or shall sell or transfer all or substantially all
its assets to any other corporation, lawful provision shall be made as a part of
the terms of such transaction whereby the holders of Series E Stock shall
receive upon conversion thereof, in lieu of each share of Common Stock which
would have been issuable upon conversion of such stock if converted immediately
prior to the consummation of such transaction, the same kind and amount of stock
(or other securities, cash or property, if any) as may be issuable or
distributable in connection with such transaction with respect to each share of
Common Stock outstanding at the effective time of such transaction, subject to
subsequent adjustments for subsequent stock dividends and distributions,
subdivisions or combinations of shares, capital reorganizations,
reclassifications, consolidations, mergers or share exchanges, as nearly
equivalent as possible to the adjustments provided for in this Section 5.
(g) Whenever the Conversion Price is adjusted as herein provided:
(i) the Corporation shall compute the adjusted Conversion Price and
shall cause to be prepared a certificate signed by the chief financial
or accounting officer of the Corporation setting forth the adjusted
Conversion Price and showing in reasonable detail the facts upon which
such adjustment is based and the computation thereof and such
certificate shall forthwith be filed with each transfer agent for the
Series E Stock; and
(ii) a notice stating that the Conversion Price has been adjusted and
setting forth the adjusted Conversion Price shall, as soon as
practicable, be mailed to the holders of record of outstanding shares of
Series E Stock.
(h) In case:
(i) the Corporation shall declare a dividend or other distribution on
the Common Stock otherwise than in cash out of its surplus;
(ii) the Corporation shall authorize the granting to the holders of the
Common Stock of rights or warrants entitling them to subscribe for or
purchase any shares of capital stock of any class or of any other
rights;
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(iii) of any reclassification of the Common Stock (other than a
subdivision or combination of outstanding shares of Common Stock), or
of any consolidation, merger or share exchange to which the
Corporation is a party and for which approval of any stockholders of
the Corporation is required, or of the sale or transfer of all or
substantially all the assets of the Corporation; or
(iv) of the voluntary or involuntary liquidation, dissolution or
winding up of the Corporation;
then the Corporation shall cause to be mailed to each transfer agent for
the Series E Stock and to the holders of record of the outstanding shares
of Series E Stock, at least 20 days (or 10 days in any case specified in
paragraphs (i) or (ii) above) prior to the applicable record or effective
date hereinafter specified, a notice stating (i) the date as of which the
holders of record of shares of Common Stock to be entitled to such
dividend, distribution, rights or warrants are be determined, or (ii) the
date on which such reclassification, consolidation, merger, 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
record of Common Stock shall be entitled to exchange their shares for
securities or other property, if any, deliverable upon such
reclassification, consolidation, merger, share exchange, sale, transfer,
liquidation, dissolution or winding up. Such notice shall also state
whether such transaction will result in any adjustment in the Conversion
Price applicable to the Series E Stock and, if so, shall state what the
adjusted Conversion Price will be and when it will become effective.
Neither the failure to give the notice required by this paragraph (h), nor
any defect therein, to any particular holder shall affect the sufficiency
of the notice or the legality or validity of the proceedings described in
paragraphs (h)(i) through (h)(iv).
(i) The Corporation shall at all times reserve and keep available out of
its authorized but unissued shares of Common Stock, for the purpose of
issuance upon conversion of Series E Stock, the full number of shares of
Common Stock then issuable upon the conversion of all shares of Series E
Stock then outstanding and shall take all action necessary so that shares
of Common Stock so issued will be validly issued, fully paid and
nonassessable.
(j) The Corporation will pay any and all stamp or similar taxes that may
be payable in respect of the issuance or delivery of shares of Common Stock
on conversion of Series E Stock. The Corporation shall not, however, be
required to pay any tax which may be payable in respect of any transfer
involved in the issuance and delivery of shares of Common Stock in a name
other than that in which the Series E Stock so converted were registered,
and no such issuance or delivery shall be made unless and until the person
requesting such issuance has paid to the Corporation the amount of any such
tax or has established to the satisfaction of the Corporation that such tax
has been paid.
(k) No fractional shares or scrip representing fractional shares of
Common Stock shall be issued upon the conversion of Series E Stock. If any
such conversion would
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otherwise require the issuance of such a fractional share an amount equal
to such fraction multiplied by the Closing Price per share of Common Stock
on the day of conversion shall be paid to the holder in cash by the
Corporation.
(l) The certificate of any independent firm of public accountants of
recognized standing selected by the Board shall be presumptive evidence of
the correctness of any computation made under this Section 5.
6. Liquidation Rights.
(a) Upon the dissolution, liquidation or winding up of the Corporation,
the holders of the Series E Stock shall be entitled to receive out of the
assets of the Corporation, before any payment or distribution shall be made
on the Common Stock or on any other class of stock ranking junior to the
Preferred Stock upon liquidation, the amount of $1,000.00 per share, plus a
sum equal to all dividends (whether or not earned or declared) on such
shares accrued and unpaid thereon to the date of the final distribution.
(b) Neither the sale of all or substantially all the property or business
of the Corporation, nor the merger or consolidation of the Corporation into
or with any other corporation or the merger or consolidation of any other
corporation into or with the Corporation, shall be deemed to be a
dissolution, liquidation or winding up, voluntary or involuntary, for the
purposes of this Section 6.
(c) After the payment to the holders of the Series E Stock of the full
preferential amounts provided for in this Section 6, the holders of Series
E Stock as such shall have no right or claim to any of the remaining assets
of the Corporation.
(d) In the event the assets of the Corporation available for distribution
to the holders of Series E Stock upon any dissolution, liquidation or
winding up of the Corporation, whether voluntary or involuntary, shall be
insufficient to pay in full all amounts to which such holders are entitled
pursuant to paragraph (a) of this Section 6, no such distribution shall be
made on account of any shares of any other class or series of Preferred
Stock ranking on a parity with the Series E Stock upon such dissolution,
liquidation or winding up unless proportionate distributive amounts shall
be paid on account of the Series E Stock, ratably, in proportion to the
full distributable amounts for which holders of all such parity shares are
respectively entitled upon such dissolution, liquidation or winding up.
(e) Upon the dissolution, liquidation or winding up of the Corporation,
the holders of shares of Series E Stock then outstanding shall be entitled
to be paid out of the assets of the Corporation available for distribution
to its stockholders all amounts to which such holders are entitled pursuant
to paragraph (a) of this Section 6 before any payment shall be made to the
holders of any class or series of capital stock of the Corporation ranking
junior upon liquidation to the Series E Stock.
7. Sinking or Retirement Fund.
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The Series E Stock shall not be entitled to the benefit of a sinking or
retirement fund to be applied to the purchase or redemption of such stock.
8. Rank.
For purposes of this resolution, any stock of any class or classes of the
Corporation shall be deemed to rank:
(a) prior to the Series E Stock, either as to dividends or upon
liquidation, if the holders of such class or classes shall be entitled to
the receipt of dividends or of amounts distributable upon dissolution,
liquidation or winding up of the Corporation, as the case may be, in
preference or priority to the holders of Series E Stock;
(b) on a parity with the Series E Stock, either as to dividends or upon
liquidation, whether or not the dividend rates, dividend payment dates or
redemption or liquidation prices per share or sinking fund provisions, if
any, are different from those of the Series E Stock, if such stock is the
Corporation's Auction Preferred Stock, Series C, or Flexible Auction
Preferred Stock, Series D, or if the holders of such stock shall be
entitled to the receipt of dividends or of amounts distributable upon
dissolution, liquidation or winding up of the Corporation, as the case may
be, in proportion to their respective dividend rates or liquidation prices,
without preference or priority, one over the other, as between the holders
of such stock and the holders of Series E Stock; and
(c) junior to the Series E Stock, either as to dividends or upon
liquidation, if such class shall be the Corporation's Series A Junior
Participating Preferred Stock, Common Stock or if the holders of Series E
Stock shall be entitled to receipt of dividends or of amounts distributable
upon dissolution, liquidation or winding up of the Corporation, as the case
may be, in preference or priority to the holders of shares of such class or
classes.
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II
Common Stock
1. Dividends.
Subject to the preferential rights of the Preferred Stock, the holders of
the Common Stock are entitled to receive, to the extent permitted by law, such
dividends as may be declared from time to time by the Board of Directors.
2. Liquidation.
In the event of the voluntary or involuntary liquidation, dissolution,
distribution of assets or winding up of the Corporation, after distribution in
full of the preferential amounts, if any, to be distributed to the holders of
shares of Preferred Stock, holders of Common Stock shall be entitled to receive
all of the remaining assets of the Corporation of whatever kind available for
distribution to stockholders ratably in proportion to the number of shares of
Common Stock held by them respectively. The Board of Directors may distribute in
kind to the holders of Common Stock such remaining assets of the Corporation or
may sell, transfer or otherwise dispose of all or any part of such remaining
assets to any other corporation, trust or other entity and receive payment
therefor in cash, stock or obligations of such other corporation, trust or other
entity, or any combination thereof, and may sell all or any part of the
consideration so received and distribute any balance thereof in kind to holders
of Common Stock. The merger or consolidation of the Corporation into or with any
other corporation, or the merger of any other corporation into it, or any
purchase or redemption of shares of stock of the Corporation of any class, shall
not be deemed to be a dissolution, liquidation or winding up of the Corporation
for the purposes of this paragraph.
3. Voting Rights.
Except as may be otherwise required by law or this Restated Certificate of
Incorporation, each holder of Common Stock has one vote in respect of each share
of stock held by him of record on the books of the Corporation on all matters
voted upon by the Stockholders.
III
Other Provisions
1. Preemptive Rights.
No stockholder shall have any preemptive right to subscribe to an
additional issue of stock of any class or series or to any securities of the
Corporation convertible into such stock.
2. Changes in Authorized Capital Stock.
Subject to the protective conditions and restrictions of any outstanding
Preferred Stock, any amendment to this Restated Certificate of Incorporation
which increases or decreases the authorized capital stock of any class or
classes may be adopted by the affirmative vote of the holders of a majority of
the outstanding shares of the voting stock of the Corporation.
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ARTICLE FIFTH
Board of Directors
1. Powers of the Board.
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized:
(a) To make, alter or repeal the by-laws of the Corporation.
(b) To authorize and cause to be executed mortgages and liens upon
the real and personal property of the Corporation.
(c) To set apart out of any of the funds of the Corporation available
for dividends a reserve or reserves for any proper purpose and to abolish
any reserve in the manner in which it was created.
(d) By a majority of the whole board, to designate one or more
committees, each committee to consist of one or more of the directors of
the Corporation. The Board may designate one or more directors as alternate
members of any committee, who may replace any absent or disqualified member
at any meeting of the committee. The by-laws may provide that in the
absence or disqualification of a member of a committee, the member or
members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place
of any such absent or disqualified member. Any such committee, to the
extent provided in the resolution of the Board of Directors, or in the by-
laws of the Corporation, shall have and may exercise all the powers and
authority of the Board of Directors in the management of the business and
affairs of the Corporation and may authorize the seal of the Corporation to
be affixed to all papers which may require it; but no such committee shall
have the power or authority in reference to amending the Restated
Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange
of all or substantially all of the Corporation's property and assets,
recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution, or amending the by-laws of the Corporation;
and, unless the resolution or by-laws expressly so provide, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock.
(e) When and as authorized by the stockholders in accordance with
statute, to sell, lease or exchange all or substantially all of the
property and assets of the Corporation, including its good will and its
corporate franchises, upon such terms and conditions and for such
consideration, which may consist in whole or in part of money or property
including shares of stock in, and/or other securities of, any other
corporation or corporations, as the Board of Directors shall deem expedient
and for the best interests of the Corporation.
2. Terms and Number of Board Members.
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The number of members of the Board of Directors will be fixed from time to
time by the Board of Directors, but (subject to vacancies) in no event may there
be less than three directors. Each director shall serve until the next annual
meeting of stockholders or until his successor is elected.
If any vacancy occurs in the Board of Directors during a term, the
remaining directors, by affirmative vote of a majority thereof, may elect a
director to fill the vacancy until the next annual meeting of stockholders.
3. Cumulative Voting.
At all elections of directors of the Corporation, each stockholder entitled
generally to vote for the election of directors shall be entitled to as many
votes as shall equal the number of votes which (except for this provision as to
cumulative voting) he would be entitled to cast for the election of directors
with respect to his shares of stock multiplied by the number of directors to be
elected, and he may cast all of such votes for a single director or may
distribute them among the number to be voted for, or for any two or more of them
as he may see fit.
ARTICLE SIXTH
Records
The books of the Corporation may be kept (subject to any provisions
contained in the statutes) outside the State of Delaware at such place or places
as may be designated from time to time by the Board of Directors or in the
by-laws of the Corporation. Elections of directors need not be by written ballot
unless the by-laws of the Corporation shall so provide.
ARTICLE SEVENTH
Certain Contracts
No contract or transaction between the Corporation and one or more of its
directors or officers, or between the Corporation and any other corporation,
partnership, association, or other organization in which one or more of its
directors or officers are directors or officers, or have a financial interest,
shall be void or voidable solely for this reason, or solely because the director
or officer is present at or participates in the meeting of the board or
committee thereof which authorizes the contract or transaction, or solely
because his or their votes are counted for such purpose, if:
1. The material facts as to his interest and as to the contract or
transaction are disclosed or are known to the Board of Directors or the
committee, and the Board of Directors or committee in good faith authorizes
the contract or transaction by a vote sufficient for such purpose without
counting the vote of the interested director or directors: or
2. The material facts as to his interest and as to the contract or
transaction are disclosed or are known to the stockholders entitled to vote
thereon, and the contract or transaction is specifically approved in good
faith by vote of the stockholders: or
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3. The contract or transaction is fair as to the Corporation as of
the time it is authorized, approved or ratified, by the Board of Directors,
a committee thereof, or the stockholders.
Interested directors may be counted in determining the presence of a quorum at a
meeting of the Board of Directors or of a committee which authorizes the
contract or transaction.
ARTICLE EIGHTH
Indemnification
1. Claim Brought by Third Parties.
The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason of the
fact that he is or was or has agreed to become a director or officer of the
Corporation, or is or was serving or has agreed to serve at the request of the
Corporation as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise, or by reason of any action alleged to have
been taken or omitted by such person in such capacity, against costs, charges
and other expenses (including attorneys' fees) ("Expenses"), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon
a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
2. Claim By or in the Right of the Corporation.
The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Corporation to procure a judgement in its favor
by reason of the fact that he is or was or has agreed to become a director or
officer of the Corporation, or is or was serving or has agreed to serve at the
request of the Corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise, or by reason of any
action alleged to have been taken or omitted by such person in such capacity,
against Expenses actually and reasonably incurred by him in connection with the
investigation, defense or settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation and except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that the
Court of Chancery of the State of Delaware or the court in which such action or
suit was brought shall determine upon application that despite the adjudication
of liability
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<PAGE>
but in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such Expenses which the Court of Chancery
of the State of Delaware or such other court shall deem proper.
3. Additional Indemnification.
In addition to the indemnification provided for in paragraphs 1 and 2 of
this Article Eighth, the Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of another corporation, partnership,
joint venture, trust or other enterprise by reason of the fact that he is or was
serving or has agreed to serve at the request of the Corporation as a director
of such other corporation, partnership, joint venture, trust or other enterprise
against Expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding
for breach of fiduciary duty as such director, except for liability: (i) for
breach of the duty of loyalty to such other corporation, partnership, joint
venture, trust or other enterprise; (ii) for acts or omissions not in good faith
or which involve intentional misconduct or knowing violation of law; (iii) for
unlawful payment of a dividend or unlawful purchase or redemption of stock; or
(iv) for any transaction from which the director derived an improper personal
benefit.
4. Successful Defense.
To the extent that any person referred to in paragraphs 1, 2 or 3 of this
Article Eighth has been successful on the merits or otherwise, including,
without limitation, the dismissal of an action without prejudice, in defense of
any action, suit or proceeding referred to therein or in defense of any claim,
issue or matter therein, he shall be indemnified against Expenses actually and
reasonably incurred by him in connection therewith.
5. Determination of Conduct.
Any indemnification under paragraphs 1, 2 or 3 of this Article Eighth
(unless ordered by a court) shall be made by the Corporation only as authorized
in the specific case upon a determination that indemnification of the director
or officer is proper in the circumstances because he has met the applicable
standard of conduct set forth in said paragraphs 1, 2 or 3 of this Article
Eighth. Such determination shall be made (a) by the board of directors by a
majority vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, or (b) if such quorum is not obtainable, or, even if
obtainable and a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (c) by the stockholders.
6. Advance Payment.
Expenses incurred by any person referred to in paragraphs 1, 2 or 3 of this
Article Eighth in defending a civil or criminal action, suit or proceeding shall
be paid by the Corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of such person
to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Corporation as provided in this Article
Eighth.
7. Certificate of Incorporation Article Not Exclusive; Change in Law.
-78-
<PAGE>
The indemnification and advancement of Expenses provided by, or granted
pursuant to, this Article Eighth shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of Expenses may be
entitled under any law (common or statutory), by-law, agreement, vote of
stockholders or disinterested directors, or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director or
officer and shall inure to the benefit of the heirs, executors and
administrators of such a person. Notwithstanding the provisions of this Article
Eighth, the Corporation shall indemnify and make advancement of Expenses to any
person referred to in paragraphs 1, 2 or 3 of this Article Eighth to the
fullest extent permitted under the laws of the State of Delaware and any other
applicable laws, as they now exist or as they may be amended in the future.
8. Contract Rights.
All rights to indemnification and advancement of Expenses provided by this
Article Eighth shall be deemed to be a contract between the Corporation and each
person referred to in paragraphs 1, 2 or 3 of this Article Eighth. Any repeal or
modification of this Article Eighth or any repeal or modification of relevant
provisions of the Delaware General Corporation Law or any other applicable law
shall not in any way diminish any rights to indemnification or advancement of
Expenses with respect to any state of facts then or previously existing or any
action, suit or proceeding previously or thereafter brought or threatened based
in whole or in part on such state of facts.
9. Insurance.
The Corporation shall have power to purchase and maintain insurance on
behalf of any person referred to in paragraphs 1, 2 or 3 of this Article Eighth
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation
would have the power to indemnify him against such liability under the
provisions of this Article Eighth or of Section 145 of the Delaware General
Corporation Law.
10. Indemnification of Employees or Agents.
The Board of Directors may, by resolution, extend the indemnification and
advancement of Expenses provisions of this Article Eighth to any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding by reason of the fact that he is or was or
has agreed to become an employee or agent of the Corporation, or is or was
serving or has agreed to serve at the request of the Corporation as an employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise.
11. Definition of Corporation.
For purposes of this Article Eighth, references to the "Corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, employees or agents so that any
person who is or was or has agreed to become a director, officer, employee or
agent of such constituent corporation, or is or was serving or has agreed to
serve at the request of such constituent
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<PAGE>
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under the provisions of this Article Eighth with respect to the
resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
12. Employee Benefit Plans.
For purposes of this Article Eighth, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the Corporation" shall include any
service as a director or officer of the Corporation which imposes duties on, or
involves services by, such director or officer with respect to an employee
benefit plan, its participants, or beneficiaries; and a person who acted in good
faith and in a manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner "not opposed to the best interest of the Corporation" as
referred to in this Article Eighth.
ARTICLE NINTH
Stockholder Action by Consent
Any corporate action upon which a vote of stockholders is required or
permitted may be taken without a meeting or vote of stockholders with the
written consent of stockholders having not less than a majority of all of the
stock entitled to vote upon the action if a meeting were held; provided, that in
no case shall the written consent be by holders having less than the minimum
percent of the vote required by statute for the proposed corporate action and
provided that prompt notice be given to all stockholders of the taking of
corporate action without a meeting and by less than unanimous written consent.
ARTICLE TENTH
Amendment
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Restated Certificate of Incorporation, in the manner
now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
ARTICLE ELEVENTH
Limited Liability of Directors
No person who was or is a director of the Corporation shall be personally
liable to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for breach of the duty of
loyalty to the Corporation or its stockholders; (ii) for acts or omissions not
in good faith or which involve intentional misconduct or 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. For purposes hereof, "fiduciary duty as a director" shall include
fiduciary duties arising in serving at the request of the Corporation as
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<PAGE>
a director of another corporation, partnership, joint venture, trust or other
enterprise, and "personally liable to the Corporation" shall include liabilities
to such other corporations, partnerships, joint ventures, trusts or other
enterprises, and liabilities to the Corporation in its capacity as a security
holder, joint venturer, partner, beneficiary, creditor or investor of or in any
such other corporation, partnership, joint venture, trust or other enterprise.
_____________
4. This Restated Certificate of Incorporation was duly adopted in
accordance with provisions of Section 245 of the General Corporation Law of
the State of Delaware.
5. The capital of said Corporation will not be reduced under or by
reason of this Restated Certificate of Incorporation.
IN WITNESS WHEREOF, Northern Trust Corporation has caused its corporate
seal to be hereunto affixed and this Restated Certificate of Incorporation to
be signed by John B. Snyder, its Executive Vice President, and the same to be
attested by Victoria Antoni, its Assistant Secretary, this 29th day of
SEPTEMBER, 1992.
/s/ John B. Snyder
------------------------
(SEAL) John B. Snyder
Executive Vice President
/s/ Victoria Antoni
-------------------------
Victoria Antoni
Assistant Secretary
-81-
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE FIRST................................................................................. 1
ARTICLE SECOND................................................................................ 1
ARTICLE THIRD................................................................................. 2
ARTICLE FOURTH................................................................................ 2
I. Preferred Stock..................................................................... 2
Issuance in Series............................................................. 2
Authority of the Board with respect to Series.................................. 2
Dividends...................................................................... 3
Reacquired Shares.............................................................. 4
Voting Rights.................................................................. 4
Outstanding or Reserved for Issuance Preferred Stock........................... 4
Series A Junior Participating Preferred Stock (subject to Preferred
Stock purchase Rights).................................................. 5
Auction Preferred Stock, Series C......................................... 9
Flexible Auction Preferred Stock, Series D................................ 31
6.25% Cumulative Preferred Stock, Series E................................ 60
II. Common Stock........................................................................ 74
Dividends...................................................................... 74
Liquidation.................................................................... 74
Voting Rights.................................................................. 74
III. Other Provisions.................................................................... 74
Preemptive Rights.............................................................. 74
Changes in Authorized Capital Stock............................................ 74
ARTICLE FIFTH................................................................................. 75
Powers of the Board...................................................................... 75
Terms and Number of Board Members........................................................ 75
Cumulative Voting........................................................................ 75
ARTICLE SIXTH................................................................................. 76
ARTICLE SEVENTH............................................................................... 76
ARTICLE EIGHTH................................................................................ 77
Claim Brought by Third Parties........................................................... 77
Claim By or in the Right of the Corporation.............................................. 77
Additional Indemnification............................................................... 78
Successful Defense....................................................................... 78
</TABLE>
<PAGE>
<TABLE>
<S> <C>
Determination of Conduct.................................................................. 78
Advance payment........................................................................... 78
Certificate of Incorporation Article Not Exclusive; Change in Law......................... 78
Contract Rights........................................................................... 79
Insurance................................................................................. 79
Indemnification of Employees or Agents.................................................... 79
Definition of Corporation................................................................. 79
Employee.................................................................................. 80
ARTICLE NINTH.................................................................................. 80
ARTICLE TENTH.................................................................................. 80
ARTICLE ELEVENTH............................................................................... 80
</TABLE>
<PAGE>
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
NORTHERN TRUST CORPORATION
NORTHERN TRUST CORPORATION, a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "Corporation") does hereby
certify:
(1) The Corporation is regulated under the Bank Holding Company Act of
1956, 12 U.S.C., Section 1841, et seq., as that Act shall from time to time be
amended;
(2) At a meeting of the Board of Directors of the Corporation held on
February 16, 1993, a resolution was adopted setting forth a proposed amendment
of the Restated Certificate of Incorporation, declaring the amendment to be
advisable and directing that the amendment be considered at a meeting of
stockholders of the Corporation. The resolutions setting forth the proposed
amendment are as follows:
BE IT RESOLVED that the Board of Directors of Northern Trust
Corporation declares it advisable that the first sentence of Article Fourth
of the Restated Certificate of Incorporation be amended by (1) increasing
the total number of shares which the Corporation has the authority to
issue, referred to in the second line of Article Fourth, by 9,000,000
shares, and (2) revising the third line of Article Fourth to read in its
entirety as follows:
"10,000,000 shares of Preferred Stock (Preferred Stock) without par value,
and".
BE IT FURTHER RESOLVED that the foregoing proposed amendment be
submitted to the stockholders of the Corporation for their consideration
and approval at the next annual meeting of stockholders of the Corporation.
(3) At a meeting of the Board of Directors of the Corporation held on
February 16, 1993, resolutions were adopted setting forth a further proposed
amendment of the Restated Certificate of Incorporation, declaring the amendment
to be advisable and
<PAGE>
directing that the amendment be considered at a meeting of stockholders of the
Corporation. The resolutions setting forth the proposed amendment are as
follows:
BE IT RESOLVED that the Board of Directors of Northern Trust
Corporation declares it advisable that the first sentence of Article Fourth
of the Restated Certificate of Incorporation be amended by (1) increasing
the total number of shares which the Corporation has the authority to
issue, referred to in the second line of Article Fourth, by 70,000,000
shares, and (2) revising the fourth line of Article Fourth to read in its
entirety as follows:
"140,000,000 shares of Common Stock (Common Stock), $1.66 2/3 par value per
share."
BE IT FURTHER RESOLVED that the foregoing proposed amendment be
submitted to the stockholders of the Corporation for their consideration
and approval at the next annual meeting of stockholders of the Corporation.
(4) Thereafter, pursuant to such resolutions of its Board of Directors,
the stockholders of the Corporation, at a meeting held on April 20, 1993,
adopted both of the proposed amendments by voting the number of shares required
by the statute in favor of each of the proposed amendments;
(5) Each of the said amendments was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware; and
(6) Accordingly, there has now been given all corporate authorization
necessary to cause the first sentence of Article Fourth of the Restated
Certificate of Incorporation to provide as follows:
"The total number of shares of all classes of capital stock which the
Corporation has the authority to issue is 150,000,000 shares, which are
divided into two classes as follows:
10,000,000 shares of Preferred Stock (Preferred Stock) without par
value, and
140,000,000 shares of Common Stock (Common Stock), $1.66 2/3 par value
per share."
(7) The Capital of the Corporation will not be reduced under or by
reason of the aforesaid amendments.
--2--
<PAGE>
IN WITNESS WHEREOF, NORTHERN TRUST CORPORATION has caused this
Certificate to be signed and attested by its duly authorized officers, this 20th
day of April, 1993.
NORTHERN TRUST CORPORATION
By: /s/ David W. Fox
----------------------------
Chairman of the Board
Attest:
/s/ Peter L. Rossiter
------------------------------
Secretary
--3--
<PAGE>
CERTIFICATE OF ELIMINATION
OF NORTHERN TRUST CORPORATION
I, Peter L. Rossiter, Executive Vice President, General Counsel and
Secretary of Northern Trust Corporation, a corporation organized and existing
under the General Corporation Law of the State of Delaware, do hereby certify as
follows:
FIRST: That the Board of Directors of Northern Trust Corporation (the
"Corporation"), by resolutions adopted at a meeting on February 20, 1996,
determined to eliminate all of the 6.25% Cumulative Convertible Preferred Stock,
Series E, of the Corporation, said resolutions being as follows:
WHEREAS, the Corporation redeemed all of the
outstanding shares of its 6.25% Cumulative Convertible
Preferred Stock, Series E (the "Series E Preferred
Stock"), on January 26, 1996;
NOW, THEREFORE, BE IT RESOLVED, that the Series E
Preferred Stock be returned to the status of
"authorized but not issued," and that the Chairman of
the Board, the President or any Executive or Senior
Executive Vice President, or any one of them acting
alone, be, and each of them hereby is, authorized and
directed, in the name and on behalf of the
Corporation, to execute and cause to filed with the
Secretary of State of Delaware, a Certificate of
Elimination, and to execute all other instruments and
documents and to do and cause to be done all such
further acts and things, as may be necessary or
advisable to eliminate the Series E Preferred Stock and
that all actions of said officers are hereby ratified,
approved and confirmed in all respects; and
BE IT FURTHER RESOLVED, that none of the authorized
shares of the Series E Preferred Stock are outstanding
and none will be issued.
SECOND: In accordance with the provisions of Section 151 of the
General Corporation Law of the State of Delaware, the Restated Certificate of
Incorporation is
<PAGE>
hereby amended to eliminate all reference to the Series E Preferred Stock, and
the Series E Preferred Stock shall be returned to the status of "authorized but
not issued."
IN WITNESS WHEREOF, I have signed this Certificate, this 21st day of
February, 1996.
NORTHERN TRUST CORPORATION
By: /s/ Peter L. Rossiter
----------------------------------
Peter L. Rossiter
Executive Vice President, General
Counsel and Secretary
<PAGE>
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
NORTHERN TRUST CORPORATION
NORTHERN TRUST CORPORATION, a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "Corporation") does hereby
certify:
(1) The Corporation is regulated under the Bank Holding Company Act of
1956, 12 U.S.C., Section 1841, et seq., as that Act shall from time to time be
amended.
(2) At a meeting of the Board of Directors of the Corporation held on
February 18, 1997, resolutions were adopted setting forth a proposed amendment
of the Restated Certificate of Incorporation, declaring the amendment to be
advisable and directing that the amendment be considered at a meeting of
stockholders of the Corporation. The resolutions setting forth the proposed
amendment are as follows:
BE IT RESOLVED that the Board of Directors of Northern Trust
Corporation declares it advisable that the first sentence of Article Fourth
of the Restated Certificate of Incorporation be amended by (1) increasing
the total number of shares which the Corporation has the authority to
issue, referred to in the second line of Article Fourth, by 140,000,000
shares, and (2) revising the fourth line of Article Fourth to read in its
entirety as follows:
"280,000,000 shares of Common Stock (Common Stock), $1.66-2/3 par value per
share."
FURTHER RESOLVED that the foregoing proposed amendment be submitted to
the stockholders of the Corporation for their consideration and approval at
the 1997 annual meeting of stockholders of the Corporation.
(3) Thereafter, pursuant to such resolutions of its Board of Directors,
the stockholders of the Corporation, at a meeting held on April 15, 1997,
adopted the proposed amendment by voting the number of shares required by the
statute in favor of the proposed amendment.
(4) The amendment was duly adopted in accordance with the provisions of
Section 242 of the General Corporation Law of the State of Delaware.
<PAGE>
(5) Accordingly, there has now been given all corporate authorization
necessary to cause the first sentence of Article Fourth of the Restated
Certificate of Incorporation to provide as follows:
"The total number of shares of all classes of capital stock which the
Corporation has the authority to issue is 290,000,000 shares, which are
divided into two classes as follows:
10,000,000 shares of Preferred Stock (Preferred Stock) without par
value, and
280,000,000 shares of Common Stock (Common Stock), $1.66-2/3 par value
per share."
(6) The Capital of the Corporation will not be reduced under or by reason
of the amendment.
IN WITNESS WHEREOF, NORTHERN TRUST CORPORATION has caused this Certificate
to be signed and attested by its duly authorized officers, this 21st day of
April, 1997.
NORTHERN TRUST CORPORATION
By: /s/ William A. Osborn
_________________________________________
William A. Osborn
Chairman and Chief Executive Officer
Attest:
/s/ Peter L. Rossiter
-------------------------------
Peter L. Rossiter
Executive Vice President,
General Counsel and Secretary
<PAGE>
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
NORTHERN TRUST CORPORATION
NORTHERN TRUST CORPORATION, a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "Corporation") does hereby
certify that:
(1) The Corporation is regulated under the Bank Holding Company Act of
1956, 12 U.S.C., Section 1841, et seq., as that Act shall from time to time be
amended.
(2) At a meeting of the Board of Directors of the Corporation held on
January 18, 2000, resolutions were adopted setting forth a proposed amendment of
the Restated Certificate of Incorporation, declaring the amendment to be
advisable and directing that the amendment be considered at a meeting of
stockholders of the Corporation. The resolutions setting forth the proposed
amendment are as follows:
BE IT RESOLVED, that the Board of Directors of Northern Trust
Corporation declares it advisable that the first sentence of Article
FOURTH of the Restated Certificate of Incorporation be amended to
increase the number of shares of common stock and the total number of
shares which the Corporation has the authority to issue by 280,000,000
shares, so that the first sentence of Article FOURTH would read in its
entirety as follows:
"The total number of shares of all classes of capital stock which
the Corporation has the authority to issue is 570,000,000 shares,
which are divided into two classes as follows:
10,000,000 shares of Preferred Stock (Preferred Stock) without
par value, and
560,000,000 shares of Common Stock (Common Stock), $1.66 2/3 par
value per share."
<PAGE>
FURTHER RESOLVED, that the foregoing proposed amendment be
submitted to the stockholders of the Corporation for their
consideration and approval at the 2000 annual meeting of stockholders
of the Corporation.
FURTHER RESOLVED, that upon approval of the foregoing proposed
amendment by the stockholders of the Corporation, the proper officers
of the Corporation are authorized and directed to execute and
acknowledge, to file in the office of the Secretary of State of
Delaware, and to cause to be recorded, in the manner provided by law,
a Certificate of Amendment to the Restated Certificate of
Incorporation with respect to the foregoing amendment.
FURTHER RESOLVED, that the officers of the Corporation are hereby
authorized and directed to execute and deliver all such certificates,
agreements, statements, documents and other instruments, and to
perform any and all acts and things, which the officers or any of them
may deem necessary or advisable in order to carry out the purposes and
intent of these resolutions.
(3) Thereafter, pursuant to such resolutions of its Board of Directors,
the stockholders of the Corporation, at a meeting held on April 18, 2000,
adopted the proposed amendment by voting the number of shares required by the
statute in favor of the proposed amendment.
(4) The amendment was duly adopted in accordance with the provisions of
Section 242 of the General Corporation Law of the State of Delaware.
(5) Accordingly, there has now been given all corporate authorization
necessary to cause the first sentence of Article FOURTH of the Restated
Certificate of Incorporation to provide as follows:
"The total number of shares of all classes of capital stock which
the Corporation has the authority to issue is 570,000,000 shares,
which are divided into two classes as follows:
10,000,000 shares of Preferred Stock (Preferred Stock) without
par value, and
560,000,000 shares of Common Stock (Common Stock), $1.66 2/3 par
value per share."
(6) The Capital of the Corporation will not be reduced under or by reason
of the amendment.
<PAGE>
IN WITNESS WHEREOF, NORTHERN TRUST CORPORATION has caused this Certificate
to be signed and attested by its duly authorized officers, this 28th day of
April, 2000.
NORTHERN TRUST CORPORATION
By: /s/ William A. Osborn
------------------------------------
William A. Osborn
Chairman and Chief Executive Officer
Attest:
/s/ Peter L. Rossiter
Peter L. Rossiter
Executive Vice President,
General Counsel and Assistant Secretary
