<PAGE>
FORM 8-B
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
REGISTRATION OF SECURITIES OF CERTAIN SUCCESSOR ISSUERS
FILED PURSUANT TO SECTION 12(B) OR (G) OF THE
SECURITIES EXCHANGE ACT OF 1934
AMAX GOLD INC.
(Exact name of registrant as specified in its charter)
Delaware 06-1199974
(State or other Jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
9100 East Mineral Circle
Englewood, Colorado 80112
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
<TABLE>
<CAPTION>
===========================================================================================================
Name of each exchange
Title of each class on which registered
- -----------------------------------------------------------------------------------------------------------
<S> <C>
Common Stock, $0.01 par value (81,305,349 shares New York Stock Exchange, Inc.
outstanding at May 26, 1995) The Toronto Stock Exchange
$3.75 Series B Convertible Preferred Stock, $1.00 par New York Stock Exchange, Inc.
value (1,840,000 shares outstanding
at May 26, 1995)
Warrants to Purchase Common Stock (4,066,649 American Stock Exchange
outstanding at May 26, 1995) The Toronto Stock Exchange
</TABLE>
Securities to be registered pursuant to Section 12(g) of the Act:
- ---------------------------------------------------------------------
(Title of class)
- ---------------------------------------------------------------------
(Title of class)
<PAGE>
ITEM 1. GENERAL INFORMATION.
(a) Amax Gold Inc., a Delaware corporation (the "Registrant"), was
organized on April 26, 1995 as a corporation under the laws of
the State of Delaware.
(b) The Registrant's fiscal year ends on December 31.
ITEM 2. TRANSACTION OF SUCCESSION.
(a) Amax Gold Inc., a Delaware corporation ("Oldco"), is the
predecessor entity to the Registrant which had securities
registered pursuant to Section 12(b) of the Securities Exchange
Act of 1934.
(b) The Registrant succeeded to the securities of Oldco in connection
with the reincorporation by Oldco in the State of Delaware by
means of a merger of Oldco into the Registrant, a wholly-owned
subsidiary of Oldco and incorporated to implement the merger.
The merger effected an election not to be governed by Section 203
of the Delaware General Corporation Law. Pursuant to an
Agreement and Plan of Merger, dated as of April 27, 1995, between
the Registrant and Oldco, upon the effective date of the merger,
each share of (1) common stock, par value $.01 per share ("Common
Stock"), (2) $2.25 Series A Convertible Preferred Stock, par
value $1.00 per share ("Series A Preferred Stock"), (3) $3.75
Series B Convertible Preferred Stock, par value $1.00 per share
("Series B Preferred Stock"), and (4) $2.25 Series C Convertible
Preferred Stock, par value $1.00 per share ("Series C Preferred
Stock") of Oldco issued and outstanding immediately prior to the
effective date of the merger will be changed and converted into
one fully paid and nonassessable share of Common Stock, Series A
Preferred Stock, Series B Preferred Stock or Series C Preferred
Stock, as applicable, of Newco. Additionally, upon the effective
date of the merger, Newco will assume and continue all of Oldco's
stock option plans and any other options, warrants or rights to
acquire Oldco stock.
Stockholders of the Registrant approved the Agreement and Plan of
Merger at the Annual Meeting of Stockholders held on June 2,
1995. The Certificate of Merger will be filed with the Secretary
of State of the State of Delaware on June 21, 1995.
-1-<PAGE>
ITEM 3. SECURITIES TO BE REGISTERED
<TABLE>
<CAPTION>
SECURITIES
AUTHORIZED SECURITIES HELD BY THE
SECURITY SECURITIES ISSUED<F1> REGISTRANT
- -------- ---------- ---------- -----------
<S> <C> <C> <C>
Common Stock, par value
$.01 per share . . . . . . . . . . . . . . . 200,000,000 81,305,349 0
$3.75 Series B Convertible
Preferred Stock, par value
$1.00 per share. . . . . . . . . . . . . . . 1,840,000 1,840,000 0
Warrants to Purchase Common Stock. . . . . . 4,066,649 4,066,649 0
<FN>
<F1> As of May 26, 1995.
</TABLE>
ITEM 4. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
A description of the Common Stock, the Series B Convertible
Preferred Stock and the Warrants is incorporated by reference to pages
49-55 of Amax Gold Inc.'s Proxy Statement, dated April 27, 1995.
ITEM 5. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial Statements.
Not applicable.
(b) Exhibits.
EXHIBIT
NUMBER EXHIBIT
2.1 Definitive Proxy Statement, dated April 27, 1995 (including
as Appendix D thereto the Agreement and Plan of Merger,
dated as of April 27, 1995, between Oldco and the
Registrant), filed with the Securities and Exchange
Commission on April 28, 1995 (File No. 1-9620) and
incorporated herein by reference.
3(i) Certificate of Incorporation of the Registrant, filed as
Appendix E to the definitive Proxy Statement, dated
April 27, 1995 (File No. 1-9620) and incorporated herein by
reference.
3(ii) By-Laws of the Registrant.
4.1 Certificate of Designations for the $2.25 Series A
Convertible Preferred Stock, par value $1.00 per share.
-2-<PAGE>
4.2 Certificate of Designations for the $3.75 Series B
Convertible Preferred Stock, par value $1.00 per share.
4.3 Certificate of Designations for the $2.25 Series C
Convertible Preferred Stock, par value $1.00 per share.
10.1 Put and Call Agreement, dated as of January 2, 1992, between
Amax Gold Inc. and AMAX Inc., filed as Exhibit 28(c) to
Registration Statement No. 33-43383 and incorporated herein
by reference.
10.2 Directors' Deferred Compensation Plan, filed as
Exhibit 10.14.2 to Registration Statement No. 33-22645 and
incorporated herein by reference.
10.3 Excess Benefit Plan, effective as of November 15, 1993,
filed as Exhibit EX-10(g) to Form 10-K for the year ended
December 31, 1993 (File No. 1-9620) and incorporated herein
by reference.
10.4 Deferred Compensation Plan, effective as of November 15,
1993, filed as Exhibit EX-10(h) to Form 10-K for the year
ended December 31, 1993 (File No. 1-9620) and incorporated
herein by reference.
10.5 1992 Stock Option Plan, filed as Exhibit A to the definitive
Proxy Statement for the 1993 Annual Meeting of Stockholders
(File No. 1-9620) and incorporated herein by reference.
10.6 Performance Share Plan, filed as Exhibit B to the definitive
Proxy Statement for the 1993 Annual Meeting of Stockholders
(File No. 1-9620) and incorporated herein by reference.
10.7 Mining Lease, dated as of April 2, 1987, between Amax
Exploration, Inc. and TMB Associates, relating to the Wind
Mountain mine, including Assignment to the Company and
related documents, filed as Exhibit 10.25 to Registration
Statement No. 33-22645 and Amendment to Mining Lease, dated
August 4, 1988, between TMB Associates and Amax Gold Inc.,
amending the Mining Lease, filed as Exhibit 46 to Annual
Report on Form 10-K for the year ended December 31, 1990
(File No. 1-9620), each incorporated herein by reference.
10.8 Bullion Loan Agreement, dated as of March 21, 1991, between
Lassen Gold Mining, Inc., Amax Gold Inc. and various banks
relating to the financing of the Hayden Hill mine, filed as
Exhibit 1 and Guarantee and Pledge Agreement, dated as of
March 21, 1991, between Amax Gold Inc. and The Chase
Manhattan Bank, N.A., as Agent for various banks, filed as
Exhibit 4, both to Form 10-Q for the quarter ended March 31,
1991 (File No. 1-9620) and incorporated herein by reference.
10.9 Term Loan Agreement among AGI Chile Credit Corp., Inc., N.M.
Rothschild & Sons Limited and Citibank, N.A., including
continuing Corporate Guaranty of Amax Gold Inc. and
continuing Corporate Guaranty of Cyprus Amax Minerals
Company, filed as Exhibit 10(c) to Form 10-Q for the quarter
ended March 31, 1994 (File No. 1-9620) and incorporated
herein by reference.
-3-<PAGE>
10.10 Exploration Joint Venture Agreement, effective January 1,
1994, between Amax Gold Inc. and Cyprus Amax, filed as
Exhibit 10.1 to Registration Statement No. 33-53963 and
incorporated herein by reference.
10.11 Revolving Credit Agreement, dated as of April 15, 1994,
between Amax Gold Inc. and Cyprus Amax, filed as Appendix A
to the definitive Proxy Statement for the Special Meeting of
Stockholders held July 26, 1994 (File No. 1-9620), and
incorporated herein by reference; and Amendment to Revolving
Credit Agreement, dated as of March 10, 1995, between Amax
Gold Inc. and Cyprus Amax, filed as Exhibit 10.11 to
Form 10-K for the year ended December 31, 1994 (File
No. 1-9620) and incorporated herein by reference.
10.12 Revolving Credit Agreement, dated as of March 10, 1995,
between Amax Gold Inc. and Cyprus Amax, filed as
Exhibit 10.12 to Form 10-K for the year ended December 31,
1994 (File No. 1-9620) and incorporated herein by reference.
10.13 Loan Agreement, dated as of November 23, 1994, among
Compania Minera Maricunga, as borrower, Amax Gold Inc. and
Bema Gold Corporation, as guarantors, and certain banks; and
related documents, filed as Exhibit 10.13 to Form 10-K for
the year ended December 31, 1994 (File No. 1-9620) and
incorporated herein by reference.
21.1 Subsidiaries of the Registrant (incorporated herein by
reference to Amax Gold Inc.'s Annual Report on Form 10-K for
the year ended December 31, 1995 (File No. 1-9620)).
-4-<PAGE>
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the Registrant has duly caused this application
for registration (or registration statement) to be signed on its
behalf by the undersigned, thereunto duly authorized.
AMAX GOLD INC.
Date: June 20, 1995 By: Deborah J. Friedman
--------------------------------
Deborah J. Friedman
Vice President, General Counsel
and Secretary
-5-
AMAX GOLD INC.
BY-LAWS
ARTICLE I.
STOCKHOLDERS
------------
SECTION 1.1 ANNUAL MEETINGS. An annual meeting of
---------------
stockholders shall be held for the election of directors at such date,
time and place either within or without the State of Delaware as may
be designated by the Board of Directors from time to time. Any other
proper business may be transacted at the annual meeting.
SECTION 1.2 SPECIAL MEETINGS. Special meetings of
----------------
stockholders may be called at any time by the Chairman of the Board,
if any; the Vice Chairman of the Board, if any; the President or the
Board of Directors, to be held at such date, time and place either
within or without the State of Delaware as may be stated in the notice
of the meeting. A special meeting of stockholders shall be called by
the Secretary upon the written request of stockholders who together
own of record a majority of the outstanding stock of each class
entitled to vote at such meeting. Such written request must state the
purpose of the meeting.
SECTION 1.3 NOTICE OF MEETINGS. Whenever stockholders
------------------
are required or permitted to take any action at a meeting, a written
notice of the meeting shall be given which shall state the place, date
and hour of the meeting, and, in the case of a special meeting, the
purpose or purposes for which the meeting is called. Unless otherwise
provided by law, the written notice of any meeting shall be given not
less than ten nor more than sixty days before the date of the meeting
to each stockholder entitled to vote at such meeting. If mailed, such
notice shall be deemed to be given when deposited in the United States
mail, postage prepaid, directed to the stockholder at his address as
it appears on the records of the Corporation.
SECTION 1.4 ADJOURNMENTS. Any meeting of stockholders,
------------
annual or special, may adjourn from time to time to reconvene at the
same or some other place, and notice need not be given of any such
adjourned meeting if the time and place thereof are announced at the
meeting at which the adjournment is taken. At the adjourned meeting,
the Corporation may transact any business which might have been
transacted at the original meeting. If the adjournment is for more
than thirty days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting
shall be given to each stockholder of record entitled to vote at the
meeting.
SECTION 1.5 QUORUM. At each meeting of stockholders,
------
except where otherwise provided by law or the certificate of
incorporation or these by-laws, the holders of a majority of the
outstanding shares of each class of stock entitled to vote at the
meeting, present in person or represented by proxy, shall constitute a
quorum. For purposes of the foregoing, two or more classes or series
of stock shall be considered a single class if the <PAGE>
holders thereof are entitled to vote together as a single class at the
meeting. In the absence of a quorum, the stockholders so present may,
by majority vote, adjourn the meeting from time to time in the manner
provided by Section 1.4 of these by-laws until a quorum shall attend.
Shares of its own capital stock belonging on the record date for the
meeting to the Corporation or to another corporation, if a majority of
the shares entitled to vote in the election of directors of such other
corporation is held, directly or indirectly, by the Corporation, shall
neither be entitled to vote nor be counted for quorum purposes;
provided, however, that the foregoing shall not limit the right of the
Corporation to vote stock, including but not limited to its own stock,
held by it in a fiduciary capacity.
SECTION 1.6 ORGANIZATION. Meetings of stockholders shall
------------
be presided over by the Chairman of the Board, if any; or in his
absence, by the Vice Chairman of the Board, if any; or in his absence
by the President, or in his absence by the Executive Vice President,
if any; or in his absence by a Vice President; or in the absence of
the foregoing persons, by a chairman designated by the Board of
Directors; or, in the absence of such designation, by a chairman
chosen at the meeting. The Secretary shall act as secretary of the
meeting, but in the absence of the Secretary, the Chairman of the
meeting may appoint any person to act as secretary of the meeting.
SECTION 1.7 VOTING; PROXIES. Unless otherwise provided
---------------
in the certificate of incorporation, each stockholder entitled to vote
at any meeting of stockholders shall be entitled to one vote for each
share of stock held by him or her which has voting power upon the
matter in question. Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to corporation action in
writing without a meeting may authorize another person or persons to
act for him or her by proxy, but no such proxy shall be voted or acted
upon after three years from its date, unless the proxy provides for a
longer period. A duly executed proxy shall be irrevocable if it
states that it is irrevocable and if, and only as long as, it is
coupled with an interest sufficient in law to support an irrevocable
power. A stockholder may revoke any proxy which is not irrevocable by
attending the meeting and voting in person or by filing an instrument
in writing revoking the proxy or another duly executed proxy bearing a
later date with the Secretary of the Corporation. Voting at meetings
of stockholders need not be by written ballot unless the holders of a
majority of the outstanding shares of all classes of stock entitled to
vote thereon present in person or by proxy at such meeting shall so
determine. At all meetings of stockholders for the election of
directors, a plurality of the votes cast shall be sufficient to elect.
All other elections and questions shall, unless otherwise provided by
law or by the certificate of incorporation or these by-laws, be
decided by the vote of the holders of a majority of the outstanding
shares of all classes of stock entitled to vote thereon present in
person or by proxy at the meeting, provided that (except as otherwise
required by law or by the certificate of incorporation) the Board of
Directors may require a larger vote upon any election or question.
SECTION 1.8 FIXING DATE FOR DETERMINATION OF STOCKHOLDERS
---------------------------------------------
OF RECORD. In order that the Corporation may determine the
- ---------
stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to consent to corporate
action in writing without a meeting, or entitled to receive payment of
any dividend or other distribution or allotment of any rights or
entitled to exercise any rights in respect of any
-2-<PAGE>
change, conversion or exchange of stock, or for the purpose of any
other lawful action, the Board of Directors may fix, in advance, a
record date, which shall not be more than sixty nor less than ten days
before the date of such meeting or more than sixty days prior to any
other action, as applicable. If no record date is fixed: (1) the
record date for determining stockholders entitled to notice of or to
vote at a meeting of stockholders shall be at the close of business on
the day next preceding the day on which notice is given; or, if notice
is waived, at the close of business on the day next preceding the day
on which the meeting is held; (2) the record date for determining
stockholders entitled to express consent to corporate action in
writing without a meeting, when no prior action by the Board is
necessary, shall be the day on which the first written consent is
expressed; and (3) the record date for determining stockholders for
any other purpose shall be at the close of business on the day on
which the Board adopts the resolution relating thereto. A
determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board may fix a new record
date for the adjourned meeting.
SECTION 1.9 LIST OF STOCKHOLDERS ENTITLED TO VOTE. The
-------------------------------------
Secretary shall prepare and make available, at least ten days before
every meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, and
showing the address of each stockholder and the number of shares
registered in the name of each stockholder. Such list shall be open
to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten
days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of
the meeting; or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time
and place of the meeting during the whole time thereof and may be
inspected by any stockholder who is present.
SECTION 1.10 CONSENT OF STOCKHOLDERS IN LIEU OF MEETING.
------------------------------------------
Unless otherwise provided in the certificate of incorporation, any
action required by law to be taken at any annual or special meeting of
stockholders of the Corporation, or any action which may be taken at
any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice and without a vote, if a
consent in writing, setting forth the action so taken, shall be signed
by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were
present and voted. Prompt notice of the taking of the corporate
action without a meeting by less than unanimous written consent shall
be given to those stockholders who have not consented in writing.
SECTION 1.11 INSPECTORS OF ELECTION. Prior to any meeting
----------------------
of stockholders, the Board of Directors or the President shall appoint
one or more inspectors to act at such meeting and make a written
report thereof and may designate one or more persons as alternate
inspectors to replace any inspector who fails to act. If no such
inspector or alternate is able to act at the meeting of stockholders,
the person presiding at the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before entering
upon the discharge of his or her duties, shall take and sign an oath
faithfully to execute the
-3-<PAGE>
duties of inspector with strict impartiality and according to the best
of his or her ability. The inspectors shall ascertain the number of
shares outstanding and the voting power of each, determine the shares
represented at the meeting and the validity of proxies and ballots,
count all votes and ballots, determine and retain for a reasonable
period a record of the disposition of any challenges made to any
determination by the inspectors and certify their determination of the
number of shares represented at the meeting and their count of all
votes and ballots. The inspectors may appoint or retain other persons
to assist them in the performance of their duties. The date and time
of the opening and closing of the polls for each matter upon which the
stockholders will vote at a meeting shall be announced at the meeting.
No ballot, proxy or vote, nor any revocation thereof or change
thereto, shall be accepted by the inspectors after the closing of the
polls. In determining the validity and counting of proxies and
ballots, the inspectors shall be limited to an examination of the
proxies, any envelopes submitted therewith, any information provided
by a stockholder who submits a proxy by telegram, cablegram or other
electronic transmission from which it can be determined that the proxy
was authorized by the stockholder, ballots and the regular books and
records of the Corporation; and, they may also consider other reliable
information for the limited purpose of reconciling proxies and ballots
submitted by or on behalf of banks, brokers, their nominees or similar
persons which represent more votes than the holder of a proxy is
authorized by the record owner to cast or more votes than the
stockholder holds of record. If the inspectors consider other
reliable information for such purpose, they shall, at the time they
make their certification, specify the precise information considered
by them, including the person or persons from whom they obtained the
information, when the information was obtained, the means by which the
information was obtained and the basis for the inspectors' belief that
such information is accurate and reliable.
ARTICLE II.
BOARD OF DIRECTORS
------------------
SECTION 2.1 POWERS; NUMBER; QUALIFICATIONS. The business
------------------------------
and affairs of the Corporation shall be managed by the Board of
Directors, except as may be otherwise provided by law or in the
certificate of incorporation. The Board shall consist of one or more
members, the number thereof to be determined from time to time by the
Board or by the stockholders. Directors need not be stockholders.
SECTION 2.2 ELECTION; TERM OF OFFICE; RESIGNATION;
--------------------------------------
REMOVAL; VACANCIES. Each director shall hold office until the annual
- ------------------
meeting of stockholders next succeeding his election and until his
successor is elected and qualified or until his earlier resignation or
removal. Subject to the rights of holders of any class or series of
stock having a preference over the Common Stock of the Corporation as
to dividends or upon liquidation, nominations for the election of
directors may be made by the Board of Directors or the Nominating
Committee of the Board of Directors or by any stockholder entitled to
vote in the election of directors generally. However, any stockholder
entitled to vote in the election of directors generally may nominate
one or more persons for election as director at a meeting only if
written notice of such stockholder's intent to make such nomination or
nominations has been timely given to the Secretary of the Corporation.
To be timely, a stockholder's notice must be received at the principal
executive office of the Corporation not later than (i) with respect
-4-<PAGE>
to an election to be held at an annual meeting of stockholders, ninety
days prior to the anniversary date of the immediately preceding annual
meeting, and (ii) with respect to an election to be held at a special
meeting of stockholders for the election of directors, the close of
business on the tenth day following the date on which notice of such
meeting is first given to stockholders. Each such notice shall set
forth: (a) the name and address of the stockholder who intends to
make the nomination and of the person or persons to be nominated; (b)
a representation that the stockholder is a holder of record of stock
of the Corporation entitled to vote at such meeting and intends to
appear in person or by proxy at the meeting to nominate the person or
persons specified in the notice; (c) the number of shares of the
Corporation owned of record and beneficially by the stockholder; (d) a
description of all arrangements or understandings between the
stockholder and each nominee and any other person or persons (naming
such person or persons) pursuant to which the nomination or
nominations are to be made by the stockholder; (e) such other
information regarding each nominee proposed by such stockholder as
would be required to be included in a proxy statement filed pursuant
to the proxy rules of the Securities and Exchange Commission; and (f)
the consent of each nominee to serve as a director of the Corporation
if so elected. The presiding officer of the meeting may refuse to
acknowledge the nomination of any person not made in compliance with
the foregoing procedure.
Any director may resign at any time upon written notice to
the Board of Directors or to the President or Secretary of the
Corporation. Such resignation shall take effect at the time specified
therein, and unless otherwise specified therein, no acceptance of such
resignation shall be necessary to make it effective. The stockholders
may remove any director with or without cause at any time. Unless
otherwise provided in the certificate of incorporation or these by-
laws, vacancies and newly created directorships resulting from any
increase in the authorized number of directors or from any other cause
may be filled by a majority of the directors then in office, although
less than a quorum, or by the sole remaining director.
SECTION 2.3 REGULAR MEETINGS. Regular meetings of the
----------------
Board of Directors may be held at such places within or without the
State of Delaware and at such times as the Board may from time to time
determine, and if so determined, notice thereof need not be given.
SECTION 2.4 SPECIAL MEETINGS. Special meetings of the
----------------
Board of Directors may be held at any time or place within or without
the State of Delaware whenever called by the Chairman of the Board, if
any; by the Vice Chairman of the Board, if any; by the President or by
any two directors. Reasonable notice thereof shall be given by the
person or persons calling the meeting.
SECTION 2.5 TELEPHONIC MEETINGS PERMITTED. Unless
-----------------------------
otherwise restricted by the certificate of incorporation or these by-
laws, members of the Board of Directors, or any committee designated
by the Board, may participate in a meeting of the Board or of such
committee, as the case may be, by means of conference telephone or
similar communications equipment by means of which all persons
participating in the meeting can hear each other,
-5-<PAGE>
and participation in a meeting pursuant to this by-law shall
constitute presence in person at such meeting.
SECTION 2.6 QUORUM; VOTE REQUIRED FOR ACTION. At all
--------------------------------
meetings of the Board of Directors, one-third of the entire Board
shall constitute a quorum for the transaction of business. The vote
of a majority of the directors present at a meeting at which a quorum
is present shall be the act of the Board unless the certificate of
incorporation or these by-laws shall require a vote of a greater
number. In case at any meeting of the Board a quorum shall not be
present, the members of the Board present may adjourn the meeting from
time to time until a quorum shall attend.
SECTION 2.7 ORGANIZATION. Meetings of the Board of
------------
Directors shall be presided over by the Chairman of the Board, if any;
or in his absence by the Vice Chairman of the Board, if any; or in his
absence by the President, or in his absence by the Executive Vice
President, if any; or in their absence by a chairman chosen at the
meeting. The Secretary shall act as secretary of the meeting, but in
the absence of the Secretary, the chairman of the meeting may appoint
any person to act as secretary of the meeting.
SECTION 2.8 INFORMAL ACTION BY DIRECTORS. Unless
----------------------------
otherwise restricted by the certificate of incorporation or these by-
laws, any action required or permitted to be taken at any meeting of
the Board of Directors, or of any committee thereof, may be taken
without a meeting if all members of the Board or of such committee, as
the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board or
committee.
SECTION 2.9 POWERS OF ATTORNEY. The Board of Directors
------------------
may authorize any officer or officers of the Corporation to confer all
kinds of powers of attorney upon any person, persons or entities
(including power of attorney in favor of lawyers, solicitors or
judicial agents, in order to enable them to carry on and perform the
legal representation of the Corporation or any of its subsidiaries in
connection with any judicial process), with all the faculties and
powers that he, she or they may deem necessary or advisable, and also
to revoke the same in whole or in part.
ARTICLE III.
COMMITTEES
----------
SECTION 3.1 COMMITTEES. The Board of Directors may, by
----------
resolution passed by a majority of the whole Board, 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. 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, she or they constitute a quorum, may (but
are not required to) unanimously appoint another member of the Board
to act at the meeting in place of any such absent or disqualified
member. Any such committee, to the extent
-6-<PAGE>
provided in the resolution of the Board, shall have and may exercise
all the powers and authority of the Board 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 committees shall have power or authority in reference to
amending the 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 dissolution, removing or
indemnifying directors or amending these by-laws; and, unless the
resolution expressly so provides, no such committee shall have the
power or authority to declare a dividend or to authorize the issuance
of stock.
SECTION 3.2 COMMITTEE RULES. Unless the Board of
---------------
Directors otherwise provides, each committee designated by the Board
may make, alter and repeal rules for the conduct of its business. In
the absence of a provision by the Board or a provision in the rules of
such committee to the contrary, a majority of the entire authorized
number of members of such committee shall constitute a quorum for the
transaction of business, the vote of a majority of the members present
at a meeting at the time of such vote if a quorum is then present
shall be the act of such committee, and in other respects each
committee shall conducts its business in the same manner as the Board
conducts its business pursuant to Article II of these by-laws.
SECTION 3.3 AUDIT COMMITTEE. The Board of Directors
---------------
shall, by resolution passed by a majority of the entire Board of
Directors, designate an Audit Committee to consist of not less than
two nor more than five Directors. The Audit Committee shall be
comprised solely of directors of the Corporation who are independent
of management and free from any relationship that, in the opinion of
the Corporation's Board of Directors, would interfere with the
exercise of independent judgment as a committee member. No director
who is also an Officer or employee of the Corporation or of any direct
or indirect subsidiary of the Corporation, shall be a member of the
Audit Committee. The Board of Directors shall designate one of the
members of the Audit Committee as Chairman of the Audit Committee.
The Audit Committee shall recommend to the Board the firm of
independent public accountants which shall conduct the annual audit of
the accounts of the Corporation and the nature and scope of the audit,
which shall be in accordance with generally accepted auditing
practices; and it shall f}rnish the Board of Directors with a written
report at least annually containing its recommendations and any
comments it may desire to make about the financial organization or
accounting practices of the Corporation and the qualifications or
performance of its past or proposed auditing firm. The Board of
Directors shall have power at any time to fill vacancies in, to change
the membership of, or to dissolve the Audit Committee and the Audit
Committee shall not have power to fill any vacancies in such
Committee. The Audit Committee shall elect its secretary and may
designate such other assistants as it shall from time to time deem
necessary. Two members of the Audit Committee shall constitute a
quorum for meetings. The Audit Committee shall keep minutes of its
meetings, in which minutes shall be recorded all action taken, and
such action shall be reported to the Board at the meeting next
succeeding such action.
-7-<PAGE>
SECTION 3.4 NOMINATING COMMITTEE. The Board of Directors
--------------------
shall, by resolution passed by a majority of the entire Board,
designate a Nominating Committee to consist of two or more Directors.
The Board of Directors shall designate one of the members of the
Nominating Committee as Chairman of the Committee. The Nominating
Committee shall recommend to the Board prospective members of the
Board of Directors. The Board shall have the power at any time to
fill vacancies in, to change the membership of, or to dissolve the
Nominating Committee and the Nominating Committee shall not have the
power to fill any vacancies in such Committee. The Nominating
Committee shall elect its secretary and may designate such other
assistants as it may from time to time deem necessary. A majority of
the members of the Nominating Committee shall constitute a quorum.
The Nominating Committee shall keep minutes of its meetings, in which
shall be recorded all action taken, and all action of the Nominating
Committee shall be reported to the Board at the meeting next
succeeding such action.
ARTICLE IV.
OFFICERS
--------
SECTION 4.1 OFFICERS; ELECTION; QUALIFICATION; TERM OF
------------------------------------------
OFFICE; RESIGNATION; REMOVAL; VACANCIES. As soon as practicable after
- ---------------------------------------
the annual meeting of stockholders in each year, the Board of
Directors shall elect a President and a Secretary, and it may, if it
so determines, elect from among its members a Chairman of the Board
and a Vice Chairman of the Board. The Board may also elect a Chief
Executive Officer, a Chief Financial Officer, an Executive Vice
President, one or more Vice Presidents, one or more Assistant Vice
Presidents, one or more Assistant Secretaries, a Treasurer, one or
more Assistant Treasurers, a Controller and one or more Assistant
Controllers, and may give any of them such further designations or
alternate titles as it considers desirable. Each such officer shall
hold office until the first meeting of the Board after the annual
meeting of stockholders next succeeding his or her election, and until
his or her successor is elected and qualified or until his or her
earlier resignation or removal. Any officer may resign at any time
upon written notice to the Board or to the President or the Secretary
of the Corporation. Such resignation shall take effect at the time
specified therein, and unless otherwise specified therein, no
acceptance of such resignation shall be necessary or without cause at
any time. Any such removal shall be without prejudice to the
contractual rights of such officer, if any, with the Corporation, but
the election or appointment of an officer shall not of itself create
contractual rights. Any number of offices may be held by the same
person. Any vacancy occurring in any office of the Corporation by
death, resignation, removal or otherwise may be filled for the
unexpired portion of the term by the Board at any regular or special
meeting.
SECTION 4.2 CHAIRMAN OF THE BOARD. The Chairman of the
---------------------
Board, if any, shall preside at all meetings of the Board of Directors
and of the stockholders at which he or she shall be present and shall
have and may exercise such powers as are, from time to time, assigned
by the Board and as may be provided by law.
SECTION 4.3 VICE CHAIRMAN OF THE BOARD. In the absence
--------------------------
of the Chairman of the Board, the Vice Chairman of the Board, if any,
shall preside at all meetings
-8-<PAGE>
of the Board of Directors and of the stockholders at which he or she
shall be present. He or she shall have and may exercise such powers
as are, from time to time, assigned by the Board and as may be
provided by law.
SECTION 4.4 PRESIDENT. In the absence of the Chairman of
---------
the Board and Vice Chairman of the Board, the President shall preside
at all meetings of the Board of Directors and of the stockholders at
which he or she shall be present. The President shall have general
charge and supervision of the business of the Corporation and, in
general, shall perform all duties incident to the office of president
of a corporation, and such other duties as, from time to time, may be
assigned by the Board or as may be provided by law.
SECTION 4.5 EXECUTIVE VICE PRESIDENT. The Executive Vice
------------------------
President, if any, shall, under the direction of the President, share
the general charge of the operations of the Corporation. In the
absence or inability to act of the President, the Executive Vice
President shall act in place of and instead of the President during
such absence or inability.
SECTION 4.6 VICE PRESIDENTS. The Vice President or Vice
---------------
Presidents, at the request of the President or in the absence of the
President and the Executive Vice President (if any) or during their
inability to act, shall perform the duties of the President, and when
so acting shall have the powers of the President. If there be more
than one Vice President, the Board of Directors may determine which
one or more of the Vice Presidents shall perform any of such duties;
or, if such determination is not made by the Board, the President may
make such determination; otherwise, any of the Vice Presidents may
perform any of such duties. The Vice President or Vice Presidents
shall have such other powers and perform such other duties as may be
assigned by the Board or the President, or as may be provided by law.
SECTION 4.7 SECRETARY. The Secretary shall record all
---------
the proceedings of the meetings of the stockholders and the Board of
Directors and of any committees in a book to be kept for that purpose;
shall see that all notices are duly given in accordance with the
provisions of these by-laws or as required by law; shall be custodian
of the records of the Corporation; may affix the corporate seal to any
document the execution of which, on behalf of the Corporation, is duly
authorized, and when so affixed may attest the same; and, in general,
shall perform all duties incident to the office of secretary of a
corporation, and such other duties as, from time to time, may be
assigned by the Board or the President, or as may be provided by law.
SECTION 4.8 ASSISTANT SECRETARIES. Any one of the
---------------------
Assistant Secretaries may, in the absence or disability of the
Secretary, perform the duties and exercise the powers of the
Secretary. Each Assistant Secretary shall perform such other duties as
the Board of Directors may prescribe or as the President may delegate.
SECTION 4.9 TREASURER. The Treasurer shall have charge
---------
of and be responsible for all funds, securities, receipts and
disbursements of the Corporation, and shall deposit or cause to be
deposited, in the name of the Corporation, all moneys or other
valuable effects in such banks, trust companies or other depositories
as shall, from time to
-9-<PAGE>
time, be selected by or under authority of the Board of Directors. If
required by the Board, the Treasurer shall give a bond for the
faithful discharge of his duties, with such surety or sureties as the
Board may determine; shall keep or cause to be kept full and accurate
records of all receipts and disbursements in books of the corporation
and shall render to the President and to the Board, whenever
requested, an account of the financial condition of the Corporation;
and, in general, shall perform all the duties incident to the office
of treasurer of a corporation, and such other duties as may be
assigned by the Board or the President, or as may be provided by law.
SECTION 4.10 ASSISTANT TREASURERS. Any one of the
--------------------
Assistant Treasurers may, in the absence or disability of the
Treasurer, perform the duties and exercise the powers of the
Treasurer. Each Assistant Treasurer shall perform such other duties
as the Board of Directors may prescribe or as the President may
delegate.
SECTION 4.11 CONTROLLER. The Controller shall be the
---------
chief accounting officer of the Corporation. The Controller shall
keep adequate records of all assets, liabilities and transactions of
the Corporation and shall have adequate audits thereof currently and
regularly made. In conjunction with other officers, the Controller
shall initiate and enforce measures and procedures whereby the
business of the Corporation shall be conducted with maximum safety,
efficiency and economy. The Controller shall perform all duties
incident to the office of Controller and such other duties as the
Board of Directors may prescribe or as the President may delegate.
SECTION 4.12 ASSISTANT CONTROLLERS. Any one of the
---------------------
Assistant Controllers may, in the absence or disability of the
Controller, perform the duties and exercise the power of the
Controller. Each Assistant Controller shall perform such other duties
as the Board of Directors may prescribe or as the President may
delegate to him.
SECTION 4.13 OTHER OFFICERS. The Board of Directors may
--------------
from time to time elect such other officers, agents or employees, and
may delegate to them such powers and duties as it may deem desirable.
ARTICLE V.
STOCK
-----
SECTION 5.1 CERTIFICATES. Every holder of stock in the
------------
Corporation shall be entitled to have a certificate signed by or in
the name of the Corporation by the Chairman or Vice Chairman of the
Board of Directors, if any; or the President or a Vice President, and
by the Treasurer or an Assistant Treasurer, or the Secretary or an
Assistant Secretary of the Corporation, certifying the number of
shares owned by the holder in the Corporation. If such certificate is
manually signed by one officer or manually countersigned by a transfer
agent or by a registrar, any other signature on the certificate may be
a facsimile. In case any officer, transfer agent or registrar who has
signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the corporation
with the same effect as if he or she were such officer, transfer agent
or registrar at the date of issue.
-10-<PAGE>
SECTION 5.2 LOST, STOLEN OR DESTROYED STOCK CERTIFICATES;
--------------------------------------------
ISSUANCE OF NEW CERTIFICATES. The corporation may issue a new
- ----------------------------
certificate of stock in the place of any certificate theretofore
issued by it, alleged to have been lost, stolen or destroyed, and the
Corporation may require the owner of the lost, stolen or destroyed
certificate, or the legal representative of the owner, to give the
Corporation a bond sufficient to indemnify it against any claim that
may be made against it on account of the alleged loss, theft or
destruction of any such certificate or the issuance of such new
certificate.
ARTICLE VI.
INDEMNIFICATION AND INSURANCE
-----------------------------
SECTION 6.1 RIGHT TO INDEMNIFICATION. Each person who
------------------------
was or is a party or is threatened to be made a party to or is
involved in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or
a person of whom he or she is the legal representative, is or was a
director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer,
employee or agent of another corporation or of a partnership, joint
venture, trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such proceeding is
alleged action or inaction in an official capacity or in any other
capacity while serving as a director, officer, employee or agent,
shall be indemnified and held harmless by the Corporation to the
fullest extent permitted by the laws of Delaware, as the same exist or
may hereafter be amended, against all costs, charges, expenses,
liabilities and losses (including attorneys' fees, judgments, fines,
ERISA excise taxes or penalties and amounts paid or to be paid in
settlement) actually and reasonably incurred or suffered by such
person in connection therewith, and such indemnification shall
continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of his or her heirs,
executors and administrators; provided, however, that, except as
provided in Section 6.2 hereof, the Corporation shall indemnify any
such person seeking indemnification in connection with a proceeding
(or part thereof) initiated by such person only if such proceeding (or
part thereof) was authorized by the Board of Directors of the
Corporation. The right to indemnification conferred in this Article
shall be a contract right and shall include the right to be paid by
the Corporation the expenses incurred in defending any such proceeding
in advance of its final disposition; provided, however, that, if the
Delaware General Corporation Law requires, the payment of such
expenses incurred by a director, officer or employee in his or her
capacity as a director or officer (and not in any other capacity in
which service was or is rendered by such person while a director or
officer, including, without limitation, service to an employee benefit
plan) in advance of the final disposition of a proceeding, shall be
made only upon delivery to the Corporation of an undertaking by or on
behalf of such director, officer or employee to repay all amounts so
advanced if it shall ultimately be determined that such director,
officer or employee is not entitled to be indemnified under this
Section or otherwise. The Corporation may, by action of its Board of
Directors, provide indemnification to agents of the Corporation with
the same scope and effect as the foregoing indemnification of
directors, officers and employees. For purposes of this Article VI,
the term "Corporation" shall include any predecessor of the
-11-<PAGE>
Corporation and any constituent corporation (including any constituent
of a constituent) absorbed by the Corporation in a consolidation or
merger.
SECTION 6.2 RIGHT OF CLAIMANT TO BRING SUIT. If a claim
-------------------------------
under Section 6.1 of this Article is not paid in full by the
Corporation within thirty days after written claim has been received
by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim;
and, if successful in whole or in part, the claimant shall be entitled
to be paid also the expense of prosecuting such claim. It shall be a
defense to any such action (other than an action brought to enforce a
claim for expenses incurred in defending any proceeding in advance of
its final disposition where the required undertaking, if any is
required, has been tendered to the Corporation) that the claimant has
failed to meet a standard of conduct which makes it permissible under
Delaware law for the Corporation to indemnify the claimant for the
amount claimed. Neither the failure of the Corporation (including its
Board of Directors, independent legal counsel, or its stockholders) to
have made a determination prior to the commencement of such action
that indemnification of the claimant is permissible in the
circumstances because he or she has met such standard of conduct, nor
an actual determination by the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) that the
claimant has not met such standard of conduct, shall be a defense to
the action or create a presumption that the claimant has failed to
meet such standard of conduct.
SECTION 6.3 NON-EXCLUSIVITY OF RIGHTS. The right to
-------------------------
indemnification and the payment of expenses incurred in defending a
proceeding in advance of its final disposition conferred in this
Article shall not be exclusive of any other right which any person may
have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, by-law, agreement, vote of stockholders
or disinterested directors or otherwise.
SECTION 6.4 INSURANCE. The Corporation may purchase and
---------
maintain insurance, at its expense, to protect itself, any director,
officer, employee or agent of the Corporation and any person serving
at the request of the Corporation as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust
or other enterprise against any such expense, liability or loss,
whether or not the Corporation would have the power to indemnify such
person against such expense, liability or loss under the Delaware
General Corporation Law.
SECTION 6.5 EXPENSES AS A WITNESS. To the extent that
---------------------
any director, officer, employee or agent of the Corporation is by
reason of such position, or a position with another entity at the
request of the Corporation, a witness in any action, suit or
proceeding, he or she shall be indemnified against all costs and
expenses actually and reasonably incurred by him or her or on his or
her behalf in connection therewith.
SECTION 6.6 INDEMNITY AGREEMENTS. The corporation may
--------------------
enter into agreements with any director, officer, employee or agent of
the corporation providing for indemnification to the full extent
permitted by the laws of Delaware.
-12-<PAGE>
ARTICLE VII.
MISCELLANEOUS
-------------
SECTION 7.1 FISCAL YEAR. The fiscal year of the
-----------
corporation shall be determined by the Board of Directors.
SECTION 7.2 SEAL. The Corporation may have a corporate
----
seal which shall have the name of the Corporation inscribed thereon
and shall be in such form as may be approved from time to time by the
Board of Directors. The corporate seal may be used by causing it or a
facsimile thereof to be impressed or affixed or in any other manner
reproduced.
SECTION 7.3 WAIVER OF NOTICE OF MEETINGS OF STOCKHOLDERS,
---------------------------------------------
DIRECTORS AND COMMITTEES. Whenever notice is required to be given by
- ------------------------
law or under any provision of the certificate of incorporation or
these by-laws, a written waiver thereof, signed by the person entitled
to notice, whether before or after the time stated therein, shall be
deemed equivalent to notice. Attendance of a person at a meeting
shall constitute a waiver of notice of such meeting, except when the
person attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because
the meeting is not lawfully called or convened. Neither the business
to be transacted at, nor the purpose of, any regular or special
meeting of the stockholders, directors, or members of a committee of
directors need be specified in any written waiver of notice unless so
required by the certificate of incorporation or these by-laws.
SECTION 7.4 INTERESTED DIRECTORS; QUORUM. 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 of Directors 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 relationship or interest and as to the
contract or transaction are disclosed or are known to the Board or the
committee, and the Board or committee in good faith authorizes the
contract or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested directors be
less than a quorum; or (2) the material facts as to his relationship
or 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 (3) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified, by
the Board, a committee thereof or the stockholders. Common or
interested directors may be counted in determining the presence of a
quorum at a meeting of the Board or of a committee which authorizes
the contract or transaction.
SECTION 7.5 FORM OF RECORDS. Any records maintained by
---------------
the Corporation in the regular course of its business, including its
stock ledger, books of account and minute books, may be kept on, or be
in the form of, punch cards, magnetic tape,
-13-<PAGE>
photographs, microphotographs or any other information storage device,
provided that the records so kept can be converted into clearly
legible form within a reasonable time. The Corporation shall so
convert any records so kept upon the request of any person entitled to
inspect the same.
SECTION 7.6 VOTING OTHER STOCKS. Unless otherwise
-------------------
directed by the Board of Directors, the President or the Executive
Vice President or any Vice President or the Secretary or Treasurer may
vote any shares of stock issued by another corporation and owned by
the Corporation at any stockholders' meeting of such other corporation
and the President, the Executive Vice President, any Vice President or
the Secretary or Treasurer shall have the authority in behalf of the
Corporation to execute and deliver a proxy or proxies for any
stockholders' meeting or give any stockholders' consent in respect of
the shares of stock of such other corporation owned by the
Corporation.
SECTION 7.7 AMENDMENT OF BY-LAWS. These by-laws may be
--------------------
altered or repealed and new by-laws made by the Board of Directors,
but the stockholders may make additional by-laws and may alter or
repeal any by-law whether or not adopted by them.
-14-
CERTIFICATE OF DESIGNATIONS
$2.25 SERIES A CONVERTIBLE PREFERRED STOCK
OF
NEW AGI CORPORATION
PAR VALUE $1.00 PER SHARE
LIQUIDATION VALUE $50 PER SHARE
PURSUANT TO SECTION 151 OF THE GENERAL
CORPORATION LAW OF THE STATE OF DELAWARE
The undersigned duly authorized officer of New AGI
Corporation, a corporation organized and existing under the laws of
the State of Delaware (the "Corporation"), in accordance with the
provisions of Section 103 of the General Corporation Law of the State
of Delaware (the "DGCL"), and pursuant to Section 151 thereof, hereby
certifies as follows:
FIRST: The Certificate of Incorporation, as amended, of the
Corporation authorizes the issuance of up to 210,000,000 shares of
capital stock, of which 200,000,000 shares shall be shares of common
stock, par value $.01 per share ("Common Stock"); and 10,000,000
shares shall be shares of preferred stock, par value $1.00 per share
("Preferred Stock").
SECOND: The Certificate of Incorporation, as amended, of
the Corporation, authorizes the Board of Directors of the Corporation
to provide for the issuance of Preferred Stock in one or more series,
with such designation, powers, preferences and relative,
participating, optional or other special rights, and qualifications,
limitations or restrictions thereof, as shall be stated and expressed
in the resolution or resolutions providing for the issue of such
series adopted by the Board of Directors of the Corporation, subject
to the limitations prescribed by law and except as otherwise provided
in the Certificate of Incorporation or any amendment thereto.
THIRD: Pursuant to authority conferred upon the Board of
Directors of the Corporation by the Certificate of Incorporation, as
amended, of the Corporation under the provisions of Section 151 of the
DGCL, the Board of Directors of the Corporation, at a meeting duly
held on April 26, 1995, adopted the following resolutions providing
for an issue of a series of the Corporation's Preferred Stock, which
resolutions are still in full force and effect and are not in conflict
with any provision of the Certificate of Incorporation, as amended, or
the By-Laws of the Corporation:
"RESOLVED, that pursuant to the authority vested in the
Board of Directors of the Corporation by Section 151 of the DGCL and
the provisions of its Certificate of Incorporation, as amended, an
issue of a series of the Preferred Stock, par value $1.00 per
<PAGE>
share, of the Corporation is hereby created, consisting of 2,000,000
shares, with the designations, powers, preferences and relative,
participating, optional or other special rights, and qualifications,
limitations or restrictions thereof, of the shares of such series as
follows:
(1) Designation, Number of Shares and Rank. The
designation of such series shall be "$2.25 Series A Convertible
Preferred Stock" (hereinafter referred to as the "Convertible
Preferred Stock"). Each share of Convertible Preferred Stock shall be
identical in all respects with the other shares of Convertible
Preferred Stock.
All shares of Convertible Preferred Stock shall rank prior,
both as to payment of dividends and as to distributions of assets upon
liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, to all of the Corporation's now or hereafter
issued Common Stock.
The number of shares of Convertible Preferred Stock shall
initially be 2,000,000, which number may from time to time be
increased or decreased (but not below the number then outstanding) by
further resolution of the Board of Directors of the Corporation or any
duly authorized committee thereof and by the filing of a certificate
pursuant to the provisions of Section 151 of the DGCL stating that
such increase or reduction has been so authorized. Shares of
Convertible Preferred Stock redeemed, purchased by the Corporation or
converted into Common Stock shall be cancelled and shall revert to
authorized but unissued shares of Preferred Stock undesignated as to
series.
(2) Dividends. The holders of shares of Convertible
Preferred Stock shall be entitled to receive, when, as and if declared
by the Board of Directors of the Corporation, but only out of funds
legally available therefor, dividends at the annual rate of $2.25 per
share, and no more, which shall be fully cumulative, shall accrue
without interest from the date of first issuance and shall be payable
in cash in equal semi-annual installments on the 1st day of January
and July of each year, commencing on July 1, 1994 or the first January
1 or July 1 thereafter that any of the Convertible Preferred Stock has
been issued and is outstanding (except that if any such date is not a
business day, then such dividend shall be payable on the next
succeeding business day) (each, a "Dividend Payment Date"), to
stockholders of record as they appear on the stock transfer books of
the Corporation on such record dates, not more than 60 nor less than
10 days preceding such Dividend Payment Date, as are fixed by the
Board of Directors of the Corporation. For the purposes hereof, the
term "business day" shall mean each Monday, Tuesday, Wednesday,
Thursday or Friday which is not a day on which banking institutions
are authorized or obligated by law or executive order to close in New
York, New York or in Denver, Colorado. Subject to the next paragraph
of this Section 2, dividends on account of arrears for any past
dividend periods may be declared and paid at any time, without
reference to any Dividend Payment Date, to holders of record on such
date, not exceeding 45 days preceding the payment date thereof, as may
be fixed by the Board of Directors of the Corporation. The amount of
dividends payable per share of Convertible Preferred Stock for each
semi-annual dividend period shall be computed by dividing the annual
amount by two. The amount of dividends payable on the Convertible
Preferred Stock for the initial dividend period and for any period
less than a full semi-annual dividend period shall be computed on the
basis of a 360 day year consisting of twelve 30-day
-2-<PAGE>
months. Holders of shares of Convertible Preferred Stock shall not be
entitled to any dividend whether payable in cash, property or stock,
in excess of the full cumulative dividends on such shares of
Convertible Preferred Stock.
On each Dividend Payment Date all dividends which shall have
accrued on each share of Convertible Preferred Stock outstanding on
such Dividend Payment Date shall accumulate and be deemed to become
"due" whether or not declared and whether or not there shall be funds
legally available for the payment thereof. Any dividend which shall
not be paid on the Dividend Payment Date on which it shall become due
shall be deemed to be "past due" until such dividend shall be paid or
until the share of Convertible Preferred Stock with respect to which
such dividend became due shall no longer be outstanding, whichever is
the earlier to occur. No interest or sum of money or other property
or securities in lieu of interest shall be payable in respect of any
dividend payment or payments which are past due. Dividends paid on
shares of Convertible Preferred Stock in an amount less than the total
amount of such dividends at the time accumulated 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 Corporation may, at its option exercised by written
notice by first class mail, postage prepaid, to each holder of record
of the Convertible Preferred Stock given at least 10 business days
prior to the applicable Dividend Payment Date, elect to pay any
dividend due and payable hereunder in shares of Common Stock in lieu
of a dividend payment in cash; provided, however, that the Corporation
-------- -------
may not pay any such dividend in shares of Common Stock in lieu of
cash to any holder of record of the Convertible Preferred Stock that
delivers written notice to the Corporation no more than 5 business
days prior to the applicable Dividend Payment Date stating that such
holder elects to receive such dividend payment in cash. The number of
shares of Common Stock issuable to each holder of Convertible
Preferred Stock pursuant to this paragraph on each such Dividend
Payment Date shall equal the amount of dividends payable per share of
Convertible Preferred Stock on such Dividend Payment Date divided by
the average Closing Price per share of the Common Stock as calculated
for the last 10 trading days (the "Trading Period") ending on the
fifth trading day prior to the date that such dividend is declared
multiplied by the total number of shares of Convertible Preferred
Stock registered in the name of each such holder of the Convertible
Preferred Stock on the record date for the payment of the dividend.
As used herein, the term "Closing Price" for any day in question shall
be the last reported sale price regular way or, in case no such
reported sales take place on such day, the average of the closing bid
and asked prices regular way for such day, in each case on the New
York Stock Exchange Composite Tape or, if not listed on the New York
Stock Exchange, on the principal national securities exchange on which
the shares of Common Stock are listed or admitted to trading or, if
not listed or admitted to trading on a national securities exchange,
the last sale price regular way for the Common Stock as published by
the National Association of Securities Dealers Automated Quotation
System ("NASDAQ"), or if such last sale price is not so published by
NASDAQ or if no such sale takes place on such day, the average between
the closing bid and asked prices for the Common Stock as published by
NASDAQ. The term "trading day" shall mean a day on which the market
used for calculating the Closing Price is open for the transaction of
business or, if the shares of such security are not so listed or
admitted to trading, a business day. No fractional shares or
-3-<PAGE>
scrip representing fractions of shares of Common Stock shall be issued
in respect of the payment of any dividend in shares of Common Stock.
In lieu of any fractional interest in a share of Common Stock which
otherwise would be deliverable in respect of the payment of any
dividend in shares of Common Stock, the Corporation shall pay to the
holder of such shares an amount in cash (computed to the nearest cent)
equal to the average Closing Price per share of the Common Stock as
calculated for the Trading Period ending on the fifth trading day
prior to the date that such dividend is declared multiplied by the
fractional interest that otherwise would have been deliverable in
respect of the payment of such dividend in shares of Common Stock.
No dividends or other distributions, other than dividends
payable solely in shares of Common Stock, shall be paid, or declared
and set apart for payment in respect of, and no purchase, redemption
or other acquisition for any consideration shall be made by the
Corporation of and no sinking fund or other analogous fund payments
shall be made in respect of any shares of Common Stock or other
capital stock of the Corporation ranking junior as to dividends or as
to liquidation rights to the Convertible Preferred Stock (the "Junior
Dividend Stock") unless and until all accrued and unpaid dividends on
the Convertible Preferred Stock, including the full dividend for the
then current dividend period, shall have been paid or declared and set
apart for payment and the Corporation is not in default in respect of
the optional redemption of any shares of Convertible Preferred Stock.
No dividends or other distributions shall be paid or
declared and set apart for payment and no purchase, redemption or
other acquisition for any consideration shall be made by the
Corporation of, and no sinking fund or other analogous fund payments
shall be made in respect of, any class or series of the Corporation's
capital stock ranking, as to dividends, on a parity with the
Convertible Preferred Stock (the "Parity Dividend Stock") for any
period unless full cumulative dividends have been, or
contemporaneously are, paid or declared and set apart for such payment
on the Convertible Preferred Stock for all dividend payment periods
terminating on or prior to the date of payment of such full cumulative
dividends. No dividends shall be paid or declared and set apart for
payment on the Convertible Preferred Stock for any period unless full
cumulative dividends have been, or contemporaneously are, paid or
declared and set apart for payment on the Parity Dividend 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
upon the Convertible Preferred Stock and the Parity Dividend Stock,
all dividends paid or declared and set apart for payment upon shares
of Convertible Preferred Stock and the Parity Dividend Stock shall be
paid or declared and set apart for payment pro rata so that the amount
of dividends paid or declared and set apart for payment per share on
the Convertible Preferred Stock and the Parity Dividend Stock shall in
all cases bear to each other the same ratio that accrued and unpaid
dividends per share on the shares of Convertible Preferred Stock and
the Parity Dividend Stock bear to each other.
The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any
shares of stock of the Corporation or any Parity Dividend Stock unless
the Corporation could, under this Section 2, purchase or otherwise
acquire such shares at such time and in such manner.
-4-<PAGE>
Any reference to "distribution" contained in this Section 2
shall not be deemed to include any distribution made in connection
with any liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary.
(3) Liquidation Preference. In the event of any
liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, the holders of shares of Convertible
Preferred Stock shall be entitled to receive out of the assets of the
Corporation, whether such assets are stated capital or surplus of any
nature, an amount equal to the dividends accrued and unpaid thereon to
the date of final distribution to such holders, whether or not
declared, without interest, and a sum equal to $50.00 per share, and
no more, before any payment shall be made or any assets distributed to
the holders of Common Stock or any other class or series of the
Corporation's capital stock ranking junior as to liquidation rights to
the Convertible Preferred Stock (the "Junior Liquidation Stock"). In
the event the assets of the Corporation available for distribution to
stockholders upon any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, shall be insufficient
to pay in full the amounts payable with respect to the Convertible
Preferred Stock and any other class or series of the Corporation's
capital stock which has been or may hereafter be created ranking on a
parity as to liquidation rights with the Convertible Preferred Stock
(the "Parity Liquidation Stock"), the holders of the Convertible
Preferred Stock and the holders of the Parity Liquidation Stock shall
share ratably in any distribution of assets of the Corporation in
proportion to the full respective preferential amounts to which they
are entitled (but only to the extent of such preferential amounts).
After payment in full of the liquidation preferences of the shares of
Convertible Preferred Stock, the holders of such shares shall not be
entitled to any further participation in any distribution of assets by
the Corporation. Neither a consolidation, merger or other business
combination of the Corporation with or into another corporation or
other entity nor a sale or transfer of all or part of the
Corporation's assets for cash, securities or other property shall be
considered a liquidation, dissolution or winding up of the Corporation
for purposes of this Section 3 (unless in connection therewith the
liquidation of the Corporation is specifically approved).
The holder of any shares of Convertible Preferred Stock
shall not be entitled to receive any payment owed for such shares
under this Section 3 until such holder shall cause to be delivered to
the Corporation (i) the certificate(s) representing such shares of
Convertible Preferred Stock and (ii) transfer instrument(s)
satisfactory to the Corporation and sufficient to transfer such shares
of Convertible Preferred Stock to the Corporation free of any liens or
encumbrances thereon or rights of third parties thereto. As in the
case of the Redemption Price referred to below, no interest shall
accrue on any payment upon liquidation after the due date thereof.
(4) Redemption at the Option of the Corporation.
(a) Right of Redemption. Subject to and upon compliance
with the provisions of this Section 4, the Corporation, at its option,
may at any time redeem the Convertible Preferred Stock, in whole or
from time to time in part, on any date set by the Board of Directors
of the Corporation, for that number of fully paid and non-assessable
shares of Common Stock (calculated as to each redemption to the
nearest 1/100th of a share)
-5-<PAGE>
obtained by dividing $50.00 by the lesser of the Call Price (as
defined in paragraph (e)) and the Conversion Price (as defined in
Section 5(d)), as the same may be in effect at such time, plus accrued
and unpaid dividends, whether or not declared or due, to the date
fixed for redemption (such shares of Common Stock and dividends,
together with any cash in lieu of Common Stock pursuant to
paragraph (d), being hereinafter referred to herein as the "Redemption
Price"), subject to the right of the holder of record of shares of
Convertible Preferred Stock on a record date for the payment of a
dividend on the Convertible Preferred Stock to receive the dividend
due on such shares of Convertible Preferred Stock on the corresponding
Dividend Payment Date.
In case of the redemption of less than all of the then
outstanding Convertible Preferred Stock, the shares of Convertible
Preferred Stock to be redeemed shall be redeemed pro rata or by lot or
in such other equitable manner as the Board of Directors of the
Corporation reasonably may determine. Notwithstanding the foregoing,
the Corporation shall not redeem less than all of the Convertible
Preferred Stock at any time outstanding until all dividends accrued
and in arrears upon all Convertible Preferred Stock and Parity
Dividend Stock then outstanding shall have been paid for all past
dividend periods.
(b) Manner of Exercise of Redemption Option. In order to
exercise its redemption option, the Corporation must give written
notice in person or by first class mail, postage prepaid, of such
redemption to each holder of record of the shares of Convertible
Preferred Stock to be redeemed, at such holder's address as it shall
appear upon the stock transfer books of the Corporation not more than
60 days nor less than 30 days prior to the redemption date. Each such
notice of redemption shall state, as appropriate: (1) the date fixed
for redemption; (2) the number of shares of Convertible Preferred
Stock to be redeemed and, if fewer than all of the shares held by such
holder are to be redeemed, the number of such shares to be redeemed
from such holder; (3) the Redemption Price per share of Convertible
Preferred Stock; (4) the place or places of payment that payment of
the Redemption Price will be made upon presentation and surrender of
the certificate or certificates evidencing the shares of Convertible
Preferred Stock to be redeemed; (5) that on and after the redemption
date, dividends will cease to accrue on such shares; and (6) the then
effective Conversion Price pursuant to Section 5 and that the right of
holders to convert shall terminate at the close of business on the
redemption date (unless the Corporation defaults in the payment of the
Redemption Price).
Any notice that is delivered or mailed as herein provided
shall be conclusively presumed to have been duly given, whether or not
the holder of the Convertible Preferred Stock receives such notice;
and failure to give such notice, or any defect in such notice, to the
holders of any shares designated for redemption shall not affect the
validity of the proceedings for the redemption of any other shares of
Convertible Preferred Stock. On or after the date fixed for
redemption as stated in such notice, each holder of the shares of
Convertible Preferred Stock called for redemption shall surrender the
certificate or certificates evidencing such shares to the Corporation
at the place designated in such notice and shall thereupon be entitled
to receive payment of the Redemption Price as herein provided. If
less than all the shares represented by any such surrendered
certificate are redeemed, a new certificate shall be issued
representing the unredeemed shares. If, on the
-6-<PAGE>
date fixed for redemption, shares of Common Stock and cash necessary
for the redemption shall be available for such purpose and
irrecoverably shall have been deposited or set apart, then,
notwithstanding that the certificates evidencing any shares so called
for redemption shall not have been surrendered, the dividends with
respect to the shares so called shall cease to accrue after the date
fixed for redemption, the shares no longer shall be deemed
outstanding, the holders thereof shall cease to be holders of
Convertible Preferred Stock, and all rights whatsoever with respect to
the shares so called for redemption (except the right of the holders
to receive payment of the Redemption Price as herein provided, without
interest, upon surrender of their certificates therefor) shall
terminate. Shares of Common Stock and any cash necessary for the
redemption of shares of Convertible Preferred Stock shall be deemed to
be available therefor for purposes of the preceding sentence and for
purposes of Section 7, on or before the date fixed for redemption, the
Company shall deposit with a bank or trust company that has an office
in the Borough of Manhattan, City of New York, and that has, or is an
affiliate of a bank that has, a capital surplus of at least
$50,000,000, shares of Common Stock and any cash necessary for such
redemption, in trust, with irrevocable instructions that such shares
of Common Stock and cash be applied to the redemption of the shares of
the Convertible Preferred Stock and any Parity Dividend Stock so
called for redemption. At the close of business on the redemption
date, each holder of shares of Convertible Preferred Stock to be
redeemed (unless the Corporation defaults in the delivery of the
shares of Common Stock or cash payable on such redemption date) shall
be deemed to be the record holder of the number of shares of Common
Stock into which such shares of Convertible Preferred Stock are to be
redeemed, regardless of whether such holder has surrendered the
certificates representing such shares of Convertible Preferred Stock.
No interest shall accrue for the benefit of the holders of shares of
Convertible Preferred Stock to be redeemed on any cash so set apart by
the Corporation. Subject to applicable escheat laws, any such cash
unclaimed at the end of six years from the redemption date shall
revert to the general funds of the Corporation, after which reversion
the holders of such shares so called for redemption shall look only to
the general funds of the Corporation for the payment of such cash.
The holder of any shares of Convertible Preferred Stock
redeemed upon any exercise of the Corporation's redemption right shall
not be entitled to receive payment of the Redemption Price for such
shares until such holder shall cause to be delivered to the place
specified in the notice given with respect to such redemption (i) the
certificate or certificates representing such shares of Convertible
Preferred Stock redeemed and (ii) transfer instruments satisfactory to
the Corporation and sufficient to transfer such shares of Convertible
Preferred Stock to the Corporation free of any adverse interest. No
interest shall accrue on the Redemption Price of any share of
Convertible Preferred Stock after its redemption date.
In the event that any shares of Convertible Preferred Stock
shall be converted into Common Stock pursuant to Section 5, then
(i) the Corporation shall not have the right to redeem such shares and
(ii) any funds which shall have been deposited for the payment of the
Redemption Price for such shares of Convertible Preferred Stock shall
be returned to the Corporation immediately after such conversion
(subject to declared dividends payable to holders of shares of
Convertible Preferred Stock on the record date for such dividends, to
the
-7-<PAGE>
extent set forth in Section 5 hereof, regardless whether such shares
are converted subsequent to such record date and prior to the related
Dividend Payment Date).
(c) Cash Payments in Lieu of Fractional Shares. No
fractional shares or scrip representing fractions of shares of Common
Stock shall be issued upon redemption of Convertible Preferred Stock.
If more than one share of Convertible Preferred Stock shall be
surrendered for redemption at one time by the same holder, the number
of full shares of Common Stock issuable upon redemption thereof shall
be computed on the basis of the aggregate of $50.00 for each such
share so surrendered. In lieu of any fractional interest in a share
of Common Stock which otherwise would be deliverable upon the
redemption of any share of Convertible Preferred Stock, the
Corporation shall pay to the holder of such shares an amount in cash
(computed to the nearest cent) equal to the lesser of the Call Price
and the Conversion Price, as the same may be in effect at such time,
multiplied by the fractional interest in a share of Common Stock that
otherwise would have been deliverable upon conversion of such share.
(d) Limitation on Number of Shares Issuable Upon
Redemption. The maximum number of shares of Common Stock that the
Corporation may issue upon redemption of the Convertible Preferred
Stock shall be 12,099,213 shares, as such amount shall be increased or
decreased from time to time by the Board of Directors of the
Corporation in connection with any adjustment to the Conversion Price
pursuant to Section 5(d) and as such amount further may be reduced in
accordance with this paragraph. In the case of the redemption of
shares of Convertible Preferred Stock that would result in the
issuance of shares of Common Stock that, when added to the number of
shares of Common Stock issued (i) in connection with the redemption of
any shares of Convertible Preferred Stock previously redeemed in
accordance with this Section 4, (ii) in connection with the conversion
of any shares Convertible Preferred Stock previously converted in
accordance with Section 5, and (iii) as a dividend on the shares of
Convertible Preferred Stock previously paid pursuant to Section 2,
would be greater than 12,099,213 shares, the Corporation shall pay an
amount of cash in lieu of such shares of Common Stock in excess of
12,099,213 shares equal to the lesser of the Call Price and the
Conversion Price, as the same may be in effect at such time,
multiplied by the number of shares of Common Stock in excess of
12,099,213 shares that otherwise would have been issuable but for this
paragraph. The shares of Convertible Preferred Stock that shall be
redeemed for cash in lieu of Common Stock pursuant to this paragraph
shall be selected pro rata or by lot or in such other equitable manner
as the Board of Directors of the Corporation reasonably may determine.
Each such cash payment shall be made in twelve consecutive
substantially equal quarterly payments, commencing on the last
business day of the calendar quarter immediately subsequent to the
applicable redemption date.
(e) Call Price. The "Call Price" with respect to a
redemption of Convertible Preferred Stock pursuant to this Section 4
shall be equal to the greater of (i) $5.854, as such amount shall be
adjusted from time to time by the Board of Directors of the
Corporation in connection with any adjustment to the Conversion Price
pursuant to Section 5(d) by applying the Conversion Price adjustment
formula set forth in such Section 5(d) to the Call Price, and (ii) the
average Closing Price per share of the Common
-8-<PAGE>
Stock as calculated for the Trading Period ending on the fifth trading
day prior to the date that the notice of redemption with respect to
such redemption is mailed pursuant to paragraph (b).
(f) Covenant as to Common Stock. The Corporation covenants
that all shares of Common Stock which may be delivered upon redemption
of shares of Convertible Preferred Stock will upon delivery be duly
and validly issued and fully paid and nonassessable, free of all liens
and charges and not subject to any preemptive rights.
If permitted by the rules of the New York Stock Exchange,
the Corporation will list and keep listed so long as the Common Stock
shall be so listed on such exchange, all shares of Common Stock
issuable upon redemption of the shares of Convertible Preferred Stock.
(5) Conversion.
(a) Right of Conversion. Subject to and upon compliance
with the provisions of this Section 5, each share of Convertible
Preferred Stock shall, at the option of the holder thereof, be
convertible at any time (unless such share is called for redemption,
then to and including but not after 5:00 p.m. (New York City time) on
the business day immediately prior to the date fixed for such
redemption, unless the Corporation shall default in payment due upon
redemption thereof), into that number of fully paid and non-assessable
shares of Common Stock (calculated as to each conversion to the
nearest 1/100th of a share) obtained by dividing $50.00 by the
Conversion Price (as defined in Section 5(d)) in effect at such time
and by surrender of such share so to be converted in the manner
provided in Section 5(b).
(b) Manner of Exercise of Conversion Privilege. In order
to exercise the conversion privilege, the holder of one or more shares
of Convertible Preferred Stock to be converted shall surrender such
shares at any of the offices or agencies to be maintained for such
purpose by the Corporation accompanied by the funds, if any, required
by the last paragraph of this Section 5(b) and shall give written
notice of conversion in the form provided on such shares of
Convertible Preferred Stock (or such other notice as is reasonably
acceptable to the Corporation) to the Corporation at such office or
agency that the holder elects to convert the shares of Convertible
Preferred Stock specified in said notice. Such notice shall also
state the name or names, together with address or addresses, in which
the certificate or certificates for shares of Common Stock which shall
be issuable on such conversion shall be issued. Each share of
Convertible Preferred Stock surrendered for conversion, unless the
shares issuable on conversion are to be issued in the same name as the
name in which such share of Convertible Preferred Stock is registered,
shall be accompanied by instruments of transfer, in form satisfactory
to the Corporation, duly executed by the holder or such holder's duly
authorized attorney and an amount sufficient to pay any transfer or
similar tax. As promptly as practicable after the surrender of such
shares of Convertible Preferred Stock and the receipt of such notice,
instruments of transfer and funds, if any, as aforesaid, the
Corporation shall issue and shall deliver at such office or agency to
such holder, or on his written order, a certificate or certificates
for the number of full shares of
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Common Stock issuable upon the conversion of such shares of
Convertible Preferred Stock in accordance with the provisions of this
Section 5 and a check or cash in respect of any fractional interest in
a share of Common Stock arising upon such conversion, as provided in
Section 5(c).
Each conversion shall be deemed to have been effected
immediately prior to the close of business on the business day
following the date on which such shares of Convertible Preferred Stock
shall have been surrendered and such notice (and any applicable
instruments of transfer and any required taxes) received by the
Corporation as aforesaid, and the person or persons in whose name or
names any certificate or certificates for shares of Common Stock shall
be issuable upon such conversion shall be deemed to have become the
holder or holders of record of the shares represented thereby at such
time on such date, and such conversion shall be at the Conversion
Price in effect at such time on such date, unless the stock transfer
books of the Corporation shall be closed on that date, in which event
such person or persons shall be deemed to have become such holder or
holders of record at the close of business on the next succeeding day
on which such stock transfer books are open, but such conversion shall
be at the Conversion Price in effect on the twentieth business day
following the date upon which such shares of Convertible Preferred
Stock shall have been surrendered and such notice received by the
Corporation.
Any shares of Convertible Preferred Stock surrendered for
conversion during the period from the close of business on the record
date for any dividend payment to the opening of business on the
related Dividend Payment Date (unless such shares of Convertible
Preferred Stock shall have been called for redemption on a date in
such period) shall be accompanied by payment, in funds acceptable to
the Corporation, of an amount equal to the dividend otherwise payable
on such Dividend Payment Date; provided, however, that no such payment
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need be made if there shall exist at the time of conversion a default
in the payment of dividends on the shares of Convertible Preferred
Stock. An amount of cash equal to such payment shall be paid by the
Corporation on such Dividend Payment Date to the holder of such shares
of Convertible Preferred Stock at the close of business on such record
date, notwithstanding any election by the Corporation to pay such
dividend in Common Stock in lieu of cash and notwithstanding the
conversion of such shares of Convertible Preferred Stock; provided,
--------
however, that if the Corporation shall default in the payment of
- -------
dividends on such Dividend Payment Date, such amount shall be paid to
the person who made such required payment. Except as provided for
above in this Section, no adjustment shall be made for dividends
accrued on any shares of Convertible Preferred Stock converted or for
dividends on any shares issued upon the conversion of such shares as
provided in this Section.
(c) Cash Payments in Lieu of Fractional Shares. No
fractional shares or scrip representing fractions of shares of Common
Stock shall be issued upon conversion of Convertible Preferred Stock.
If more than one share of Convertible Preferred Stock shall be
surrendered for conversion at one time by the same holder, the number
of full shares of Common Stock issuable upon conversion thereof shall
be computed on the basis of the aggregate of $50.00 for each such
share so surrendered. In lieu of any fractional interest in a share
of Common Stock which would otherwise be deliverable upon the
conversion of any
-10-<PAGE>
share of Convertible Preferred Stock, the Corporation shall pay to the
holder of such shares an amount in cash (computed to the nearest cent)
equal to the average Closing Price per share of Common Stock as
calculated for the Trading Period ending on the fifth trading day
prior to the day of conversion multiplied by the fractional interest
in a share of Common Stock that otherwise would have been deliverable
upon conversion of such share.
(d) Adjustment of Conversion Price. The "Conversion Price"
shall mean and be $8.265, subject to adjustment from time to time by
the Corporation as follows:
(i) In case the Corporation shall (A) pay a dividend or
make a distribution on its Common Stock in shares of Common Stock
(other than pursuant to a dividend reinvestment or similar plan),
(B) subdivide its outstanding shares of Common Stock into a
greater number of shares, (C) combine its outstanding shares of
Common Stock into a smaller number of shares, or (D) issue by
reclassification of its Common Stock any shares of capital stock
of the Corporation, then in each such case the Conversion Price
in effect immediately prior to such action shall be adjusted so
that the holder of any share of Convertible Preferred Stock
thereafter surrendered for conversion shall be entitled to
receive the number of shares of Common Stock or other capital
stock of the Corporation which he would have owned or been
entitled to receive immediately following such action had such
share been converted immediately prior to the occurrence of such
event. An adjustment made pursuant to this subsection (i) shall
become effective immediately after the record date, in the case
of a dividend or distribution, or immediately after the effective
date, in the case of a subdivision, combination or
reclassification. If, as a result of an adjustment made pursuant
to this subsection (i), the holder of any share of Convertible
Preferred Stock thereafter surrendered for conversion shall
become entitled to receive shares of two or more classes of
capital stock or shares of Common Stock and other capital stock
of the Corporation, the Audit Committee of the Board of Directors
of the Corporation (whose reasonable determination shall be
conclusive, except for arithmetic errors, and shall be described
in a statement filed by the Corporation with the stock transfer
or conversion agent, as appropriate) shall determine the
equitable allocation of the adjusted Conversion Price between or
among shares of such classes of capital stock or shares of Common
Stock and other capital stock.
(ii) In case the Corporation shall issue rights, options or
warrants to all holders of its outstanding shares of Common Stock
entitling them to subscribe for or purchase shares of Common
Stock at a price per share less than the current market price per
share (as determined pursuant to subsection (iv) of this
Section 5(d)) of the Common Stock (other than pursuant to any
stock option, restricted stock or other incentive or benefit plan
or stock ownership or purchase plan for the benefit of employees,
directors or officers or any dividend reinvestment plan of the
Corporation in effect at the time hereof or any other similar
plan adopted or implemented hereafter), then with respect to any
conversion prior to the expiration of such rights, options or
warrants, the Conversion Price in effect immediately prior
thereto shall be adjusted so that it shall equal the price
determined by multiplying the Conversion Price in effect
immediately prior to the date of issuance of such rights, options
or
-11-<PAGE>
warrants by a fraction of which the numerator shall be the number
of shares of Common Stock outstanding on the date of issuance of
such rights, options or warrants (immediately prior to such
issuance) plus the number of shares which the aggregate offering
price of the total number of shares so offered would purchase at
such current market price, and of which the denominator shall be
the number of shares of Common Stock outstanding on the date of
issuance of such rights, options or warrants (immediately prior
to such issuance) plus the number of additional shares of Common
Stock offered for subscription or purchase. Such adjustment
shall be made successively whenever any rights, options or
warrants are issued, and shall become effective immediately after
the record date for the determination of stockholders entitled to
receive such rights, options or warrants; provided, however, in
-------- -------
the event that all the shares of Common Stock offered for
subscription or purchase are not delivered upon the exercise of
such rights, options or warrants, upon the expiration of such
rights, options or warrants the Conversion Price shall be
readjusted to the Conversion Price which would have been in
effect had the numerator and the denominator of the foregoing
fraction and the resulting adjustment been made based upon the
number of shares of Common Stock actually delivered upon the
exercise of such rights, options or warrants rather than upon the
number of shares of Common Stock offered for subscription or
purchase. In determining whether any rights, options or warrants
entitle the holders to subscribe for or purchase shares of Common
Stock at less than such current market price, and in determining
the aggregate offering price of such shares of Common Stock,
there shall be taken into account any consideration received by
the Corporation for such rights, options or warrants, the value
of such consideration, if other than cash, to be determined by
the Audit Committee of the Board of Directors of the Corporation
(whose reasonable determination shall be conclusive, except for
arithmetic errors, and shall be described in a statement filed by
the Corporation with the stock transfer or conversion agent, as
appropriate).
(iii) In case the Corporation shall, by dividend or
otherwise, distribute to all holders of its outstanding Common
Stock, evidences of its indebtedness or assets (including
securities and cash, but excluding any cash dividend of the
Corporation paid out of retained earnings and dividends or
distributions payable in stock pursuant to a dividend
reinvestment or similar plan or for which adjustment is made
pursuant to subsection (i) of this Section 5(d)) or rights,
options or warrants to subscribe for or purchase securities of
the Corporation (excluding those referred to in
subsection (ii) of this Section 5(d)), then in each such case 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 record date of such distribution
by a fraction of which the numerator shall be the current market
price per share of the Common Stock as determined pursuant to
subsection (iv) of this Section 5(d) less the fair market value
on such record date (as determined by the Audit Committee of the
Board of Directors of the Corporation, whose reasonable
determination shall be conclusive, except for arithmetic errors,
and shall be described in a statement filed by the Corporation
with the stock transfer or conversion agent, as appropriate) of
the portion of the capital
-12-<PAGE>
stock or assets or the evidences of indebtedness or assets so
distributed to the holder of one share of Common Stock or of such
subscription rights, options or warrants applicable to one share
of Common Stock, and of which the denominator shall be such
current market price per share of Common Stock. Such adjustment
shall become effective immediately after the record date for the
determination of stockholders entitled to receive such
distribution.
(iv) For the purpose of any computation under
subsections (ii) and (iii) of this Section 5(d), the current
market price per share of Common Stock on any date shall be
deemed to be the average of the Closing Price for the shorter of
(A) 30 consecutive trading days ending on the last full trading
day prior to the Time of Determination or (B) the period
commencing on the date next succeeding the first public
announcement of the issuance of such rights, options or warrants
or such distribution through such last full trading day prior to
the Time of Determination. For purposes of the foregoing, the
term "Time of Determination" shall mean the time and date of the
earlier of (I) the record date for determining stockholders
entitled to receive the rights, options, warrants or
distributions referred to in Section 5(d) (ii) and (iii) or
(II) the commencement of "ex-dividend" trading on the exchange or
market referred to in the definition of "Closing Price" in
Section 2.
(v) In any case in which this Section 5(d) shall require
that an adjustment be made immediately following a record date or
an effective date, the Corporation may elect to defer (but only
until the filing by the Corporation with the stock transfer or
conversion agent, as the case may be, of the certificate required
by subsection (vii) of this Section 5(d)) issuing to the holder
of any share of Convertible Preferred Stock converted after such
record date or effective date the shares of Common Stock issuable
upon such conversion over and above the shares of Common Stock
issuable upon such conversion on the basis of the Conversion
Price prior to adjustment, and paying to such holder any amount
of cash in lieu of a fractional share.
(vi) No adjustment in the Conversion Price shall be required
to be made unless such adjustment would require an increase or
decrease of at least 1% of such price; provided, however, that
-------- -------
any adjustments which by reason of this subsection (vi) are not
required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under
this Section 5(d) shall be made to the nearest cent or to the
nearest 1/100th of a share, as the case may be. Anything in this
Section 5(d) to the contrary notwithstanding, the Corporation
shall be entitled to make such reduction in the Conversion Price,
in addition to those required by this Section 5(d), as it in its
discretion shall determine to be advisable in order that any
stock dividend, subdivision of shares, distribution of rights to
purchase stock or securities, or distribution of securities
convertible into or exchangeable for stock hereafter made by the
Corporation to its stockholders shall not be taxable to the
recipients. Except as set forth in subsections (i), (ii) and
(iii) above, the Conversion Price shall not be adjusted for any
such event including, without limitation, the issuance of Common
Stock, or any securities convertible into or exchangeable for
-13-<PAGE>
Common Stock or carrying the right to purchase any of the
foregoing, in exchange for cash, property or services.
COL\D Whenever the Conversion Price is adjusted as herein
provided, (A) the Corporation promptly shall file with the stock
transfer or conversion agent, as appropriate, a certificate
setting forth the Conversion Price after such adjustment and a
brief statement of the facts requiring such adjustment and the
manner of computing the same, which certificate shall be
conclusive evidence of the correctness of such adjustment, except
for arithmetic errors, and (B) the Corporation also shall deliver
or mail, or cause to be delivered or mailed by first class mail,
postage prepaid, as soon as practicable to each holder of record
of shares of Convertible Preferred Stock a notice stating that
the Conversion Price has been adjusted and setting forth the
adjusted Conversion Price. The stock transfer or conversion
agent, as the case may be, shall not be under any duty or
responsibility with respect to the certificate required by this
subsection (vii) except to exhibit the same to any holder of
shares of Convertible Preferred Stock who requests to inspect it.
(viii) In the event that at any time, as a result of an
adjustment made pursuant to subsection (i) of this Section 5(d),
the holder of any share of Convertible Preferred Stock thereafter
surrendered for conversion shall become entitled to receive any
shares of the Corporation other than shares of Common Stock,
thereafter the Conversion Price of such other shares so
receivable upon conversion of any share of Convertible Preferred
Stock shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the
provisions with respect to Common Stock contained in this
Section.
(ix) The Corporation from time to time may decrease the
Conversion Price by any amount for any period of time if the
period is at least 20 days and if the decrease is irrevocable
during the period. Whenever the Conversion Price is so
decreased, the Corporation shall deliver or mail to holders of
record of shares of Convertible Preferred Stock a notice of the
decrease at least 15 days before the date the decreased
Conversion Price takes effect, and such notice shall state the
decreased Conversion Price and the period it will be in effect.
(e) Notice to Holders Prior to Certain Corporate Actions.
In case:
(i) the Corporation shall take any action which would
require an adjustment in the Conversion Price pursuant to
Section 5(d)(iii); or
(ii) the Corporation shall authorize the granting to the
holders of its Common Stock generally of rights, options or
warrants to subscribe for or purchase any shares of stock of any
class or of any other rights; or
(iii) there shall be any reorganization or reclassification
of the Common Stock (other than a subdivision or combination of
the outstanding Common Stock and
-14-<PAGE>
other than a change in the par value of the Common Stock), or any
consolidation or merger to which the Corporation is a party or
any statutory exchange of securities with another corporation and
for which approval of any stockholders of the Corporation is
required, or any sale, lease or transfer of all or substantially
all of the assets of the Corporation; or
(iv) there shall be a voluntary or involuntary dissolution,
liquidation or winding-up of the Corporation; then in each such
case the Corporation shall cause to be delivered or mailed by
first class mail, postage prepaid, to the holders of shares of
Convertible Preferred Stock and the stock transfer or conversion
agent, as appropriate, as promptly as possible, but in any event
at least 20 days prior to the applicable date hereinafter
specified, a written notice stating (i) the date on which a
record is to be taken for the purpose of such action or granting
of rights, options or warrants, or, if a record is not to be
taken, the date as of which the holders of Common Stock of record
to be entitled to such distribution, rights, options or warrants
are to be determined, or (ii) the date on which such
reorganization, reclassification, consolidation, merger,
statutory exchange, sale, lease, transfer, dissolution,
liquidation or winding-up is expected to become effective or
occur, and the date as of which it is expected that holders of
Common Stock of record shall be entitled to exchange their shares
of Common Stock for securities, cash or other property
deliverable upon such reorganization, reclassification,
consolidation, merger, statutory exchange, sale, lease, transfer,
dissolution, liquidation or winding-up. Failure to give such
notice or any defect therein shall not affect the legality or
validity or the proceedings described in subsection (i), (ii),
(iii) or (iv) of this Section 5(e).
(f) Reservation of Shares of Common Stock. The Corporation
covenants that it will, at all times, reserve and keep available, free
from preemptive rights, out of the aggregate of its authorized but
unissued shares of Common Stock for the purpose of effecting
conversions of shares of Convertible Preferred Stock, the full number
of shares of Common Stock deliverable upon the conversion of all
outstanding shares of Convertible Preferred Stock not theretofore
converted and on or before (and as a condition of) taking any action
that would cause an adjustment of the Conversion Price resulting in an
increase in the number of shares of Common Stock deliverable upon
conversion above the number thereof previously reserved and available
therefor, the Corporation shall take all such action so required. For
purposes of this Section 5(f), the number of shares of Common Stock
which shall be deliverable upon the conversion of all outstanding
shares of Convertible Preferred Stock shall be computed as if at the
time of computation all outstanding shares of Convertible Preferred
Stock were held by a single holder.
Before taking any action that would cause an adjustment
reducing the Conversion Price below the then par value (if any) of the
shares of Common Stock deliverable upon conversion of the shares of
Convertible Preferred Stock, the Corporation shall take any corporate
action which may, in the opinion of its counsel, be necessary in order
that the Corporation may validly and legally issue fully paid and non-
assessable shares of Common Stock at such adjusted Conversion Price.
-15-<PAGE>
(g) Transfer Taxes, Etc. The Corporation shall pay any and
all documentary stamp, issue or transfer taxes, and any other similar
taxes payable in respect of the issue or delivery of shares of Common
Stock upon conversion of shares of Convertible Preferred Stock
pursuant hereto; provided, however, that the Corporation shall not be
-------- -------
required to pay any tax that may be payable in respect of any transfer
involved in the issue or delivery of shares of Common Stock in a name
other than that of the holder of the shares of Convertible Preferred
Stock to be converted and no such issue or delivery shall be made
unless and until the person requesting such issue or delivery has paid
to the Corporation the amount of any such tax or has established, to
the satisfaction of the Corporation, that such tax has been paid.
(h) Consolidation or Merger or Sale of Assets.
Notwithstanding any other provision herein to the contrary, in case of
any consolidation or merger to which the Corporation is a party (other
than a merger or consolidation in which the Corporation is the
continuing corporation and in which the Common Stock outstanding
immediately prior to the merger or consolidation is not exchanged for
cash, or the securities or other property of another corporation), or
in case of any sale, lease or transfer to another corporation of the
property of the Corporation as an entirety or substantially as an
entirety, then lawful provision shall be made by the corporation
formed by such consolidation or the corporation whose securities, cash
or other property immediately after the merger or consolidation will
be owned, by virtue of the merger or consolidation, by the holders of
Common Stock immediately prior to the merger or consolidation, or the
corporation which shall have acquired such assets or securities of the
Corporation (collectively the "Formed, Surviving or Acquiring
Corporation"), as the case may be, providing that the holder of each
share of Convertible Preferred Stock then outstanding shall have the
right thereafter to convert such share into the kind and amount of
securities, cash or other property receivable upon such consolidation,
merger, sale, lease or transfer by a holder of the number of shares of
Common Stock into which such share of Convertible Preferred Stock
might have been converted immediately prior to such consolidation,
merger, sale, lease or transfer assuming such holder of Common Stock
did not exercise his rights of election, if any, as to the kind or
amount of securities, cash or other property receivable upon such
consolidation, merger, sale, lease or transfer (provided that, if the
kind or amount of securities, cash or other property receivable upon
such consolidation, merger, sale, lease or transfer is not the same
for each share of Common Stock in respect of which such rights of
election shall not have been exercised ("non-electing share"), then
for the purposes of this Section 5(h) the kind and amount of
securities, cash or other property receivable upon such consolidation,
merger, sale, lease or transfer for each non-electing share shall be
deemed to be the kind and amount so receivable per share by a
plurality of the non-electing shares). The Formed, Surviving or
Acquiring Corporation, as the case may be, shall make provision in its
certificate or articles of incorporation or other constituent
documents to the end that the provisions set forth in this
Section 5(h) shall thereafter correspondingly be made applicable, as
nearly as may reasonably be, in relation to any shares of stock or
other securities or property thereafter deliverable on the conversion
of the Convertible Preferred Stock.
-16-<PAGE>
The above provisions of this Section 5(h) shall similarly
apply to successive consolidations, mergers, sales, leases or
transfers.
(i) Covenant as to Common Stock. The Corporation covenants
that all shares of Common Stock which may be delivered upon
conversions of shares of Convertible Preferred Stock will upon
delivery be duly and validly issued and fully paid and nonassessable,
free of all liens and charges and not subject to any preemptive
rights.
If permitted by the rules of the New York Stock Exchange,
the Corporation will list and keep listed so long as the Common Stock
shall be so listed on such exchange, all Common Stock issuable upon
conversion of the shares of Convertible Preferred Stock.
(j) Limitation on Number of Shares Issuable Upon
Conversion. Notwithstanding any other provision of this Section 5 to
the contrary, the maximum number of shares of Common Stock that the
Corporation may issue upon conversion of the Convertible Preferred
Stock shall be 12,099,213 shares, as such amount shall be increased or
decreased from time to time by the Audit Committee of the Board of
Directors of the Corporation in connection with any adjustment to the
Conversion Price pursuant to Section 5(d) and as such amount further
may be reduced in accordance with this paragraph. In the case of the
conversion of shares of Convertible Preferred Stock that would result
in the issuance of shares of Common Stock that, when added to the
number of shares of Common Stock issued (i) in connection with the
redemption of any shares of Convertible Preferred Stock previously
redeemed in accordance with Section 4, (ii) in connection with the
conversion of any shares Convertible Preferred Stock previously
converted in accordance with this Section 5, and (iii) as a dividend
on the shares of Convertible Preferred Stock previously paid pursuant
to Section 2, would be greater than 12,099,213 shares, the Corporation
shall pay an amount of cash in lieu of such shares of Common Stock in
excess of 12,099,213 shares equal to the Conversion Price, as the same
may be in effect at such time, multiplied by the number of shares of
Common Stock in excess of 12,099,213 shares that would otherwise have
been issuable but for this paragraph. Each such cash payment shall be
made in twelve consecutive substantially equal quarterly payments,
commencing on the last business day of the calendar quarter
immediately subsequent to the date such shares of Convertible
Preferred Stock have been surrendered for conversion.
(6) Voting Rights.
(a) General. The holders of Convertible Preferred Stock
shall not have any voting rights except as set forth below or as
otherwise from time to time required by law. In connection with any
right to vote, each holder of Convertible Preferred Stock will have
one vote for each share held. Any shares of Convertible Preferred
Stock held by the Corporation or any entity controlled by the
Corporation shall not have voting rights hereunder and shall not be
counted in determining the presence of a quorum.
-17-<PAGE>
(b) Default Voting Rights. Whenever dividends on the
Convertible Preferred Stock shall be in arrears in an amount equal to
at least three semi-annual dividend payments (whether or not
consecutive), (i) the number of members of the Board of Directors of
the Corporation shall be increased by two, effective as of the time of
election of such directors as hereinafter provided, and (ii) the
holders of the Convertible Preferred Stock (voting separately as a
class) will have the exclusive right to vote for and elect such two
additional directors of the Corporation at any meeting of stockholders
of the Corporation at which directors are to be elected held during
the period such dividends remain in arrears. The right of the holders
of the Convertible Preferred Stock to vote for such two additional
directors shall terminate when all accrued and unpaid dividends on the
Convertible Preferred Stock have been declared and paid or set apart
for payment. The term of office of all directors so elected shall
terminate immediately upon the termination of the right of the holders
of the Convertible Preferred Stock to vote for such two additional
directors.
The foregoing right of the holders of the Convertible
Preferred Stock with respect to the election of two directors may be
exercised at any annual meeting of stockholders or at any special
meeting of stockholders held for such purpose. If the right to elect
directors shall have accrued to the holders of the Convertible
Preferred Stock more than 90 days preceding the date established for
the next annual meeting of stockholders, the President of the
Corporation shall, within 20 days after the delivery to the
Corporation at its principal office of a written request for a special
meeting signed by the holders of at least ten percent (10%) of the
Convertible Preferred Stock then outstanding, call a special meeting
of the holders of the Convertible Preferred Stock to be held within 60
days after the delivery of such request for the purpose of electing
such additional directors.
The holders of the Convertible Preferred Stock voting
separately as a class shall have the right to remove without cause at
any time and replace any directors such holders have elected pursuant
to this Section 6.
(c) Class Voting Rights. So long as the Convertible
Preferred Stock is outstanding, the Corporation shall not, without the
affirmative vote or consent of the holders of at least 66 2/3 percent
of all outstanding shares of Convertible Preferred Stock (unless the
vote or consent of a greater percentage is required by applicable law
or the Certificate of Incorporation, as amended, of the Corporation),
voting separately as a class, (i) amend, alter or repeal (by merger,
consolidation or otherwise) any provision of the Certificate of
Incorporation, as amended, or the Bylaws of the Corporation, as
amended, so as to affect adversely the relative rights, preferences,
qualifications, limitations or restrictions of the Convertible
Preferred Stock, (ii) authorize or issue, or increase the authorized
amount of, any additional class or series of stock, or any security
convertible into stock of such class or series, ranking prior to the
Convertible Preferred Stock in respect of the payment of dividends or
upon liquidation, dissolution or winding up of the Corporation or
(iii) effect any reclassification of the Convertible Preferred Stock.
A class vote on the part of the Convertible Preferred Stock, without
limitation, specifically shall not be deemed to be required (except as
otherwise required by law or resolution of the Board of Directors of
the Corporation) in connection with: (a) the authorization, issuance
or increase in the authorized
-18-<PAGE>
amount of any shares of any other class or series of stock that ranks
junior to, or on a parity with, the Convertible Preferred Stock in
respect of the payment of dividends and upon liquidation, dissolution
or winding up of the Corporation; or (b) the authorization, issuance
or increase in the amount of any notes, bonds, mortgages, debentures
or other obligations of the Corporation not convertible into or
exchangeable, directly or indirectly, for stock ranking prior to the
Convertible Preferred Stock in respect of the payment of dividends or
upon liquidation, dissolution or winding up of the Corporation.
(7) Outstanding Shares. For purposes of this Certificate
of Designations, all shares of Convertible Preferred Stock shall be
deemed outstanding except (i) from the date fixed for redemption
pursuant to Section 4, all shares of Convertible Preferred Stock that
have been so called for redemption under Section 4 if shares of Common
Stock or cash necessary for payment of the Redemption Price
irrevocably have been set aside; (ii) from the date of surrender of
certificates representing shares of Convertible Preferred Stock, all
shares of Convertible Preferred Stock converted into Common Stock; and
(iii) from the date of registration of transfer, all shares of
Convertible Preferred Stock held of record by the Corporation or any
subsidiary of the Corporation.
(8) No Other Rights and Powers. The shares of Convertible
Preferred Stock shall not have any relative, participating, optional
or other special rights and powers other than as set forth herein.
(9) Preemptive Rights. The Convertible Preferred Stock is
not entitled to any preemptive or subscription rights in respect of
any securities of the Corporation.
(10) Transfer Restrictions.
(a) Legends on Convertible Preferred Stock.
(i) The certificates evidencing shares of Convertible
Preferred Stock shall, until the third anniversary of the date of
original issuance of such shares, unless otherwise agreed by the
Corporation and the holders of any such certificates, bear a legend
substantially to the following effect:
"This Security (or its predecessor) is subject to, and is
transferable only upon compliance with, the provisions of a Revolving
Credit Agreement, dated as of April 15, 1994 among Amax Gold Inc. and
Cyprus Amax Minerals Company. A copy of the above referenced
Revolving Credit Agreement is on file at the offices of Amax Gold Inc.
This Security (or its predecessor) has not been registered under the
Securities Act of 1933, as amended, or any similar state securities
laws, and this Security and any shares of common stock issued upon
conversion or redemption hereof may not be transferred except pursuant
to an effective registration statement, or an exemption from
registration, under said act and laws. Amax Gold Inc. will furnish
without charge to the holder hereof, upon request, the powers,
designations, preferences and relative participating, optional or
other special rights
-19-<PAGE>
of the class of capital stock represented hereby, and the
qualifications limitations or restrictions of such preferences and/or
rights."
Until the third anniversary of the date of original issuance
of the shares of Convertible Preferred Stock, certificates
representing the shares of Common Stock issued upon conversion or
redemption of Convertible Preferred Stock and not otherwise registered
pursuant to an effective registration statement under the Securities
Act shall bear a comparable legend. The shares of Convertible
Preferred Stock and the shares of Common Stock issued upon conversion
or redemption thereof and not otherwise registered pursuant to an
effective registration statement under the Securities Act shall be
subject to the restrictions on transfer set forth in the legends
referred to above until the third anniversary of the date of original
issuance of such shares of Convertible Preferred Stock; provided,
however, and notwithstanding the foregoing, such shares of Convertible
Preferred Stock and such shares of Common Stock may be resold under
and pursuant to the terms and conditions of Regulation S of the
Securities Act, prior to the end of the third anniversary date of the
issuance of such shares.
(ii) The certificates evidencing shares of Convertible
Preferred Stock (and shares of Common Stock issued upon conversion
thereof and not otherwise registered pursuant to an effective
registration statement under the Securities Act) issued to any
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3)
or (7) under the Securities Act that is not a "qualified institutional
buyer" within the meaning of Rule 144A under the Securities Act shall
bear, until such time as the Corporation and the transfer agent for
the Convertible Preferred Stock or Common Stock shall have received
evidence satisfactory to each of them that the transfer of such shares
of Convertible Preferred Stock or Common Stock has been effected in
accordance with the limitations on transfer set forth in
paragraph (a)(1) above, the following additional legend:
"In connection with any transfer, the holder will deliver to
the registrar and transfer agent such certificates, opinions of
counsel and other information as it may reasonably require to confirm
that the transfer complies with the foregoing restrictions."
(b) Transfer Agent Requirements. The transfer agent and
registrar for the Convertible Preferred Stock and the transfer agent
and registrar for the Common Stock shall not be required to accept for
registration of transfer any Convertible Preferred Stock or Common
Stock bearing the legend contained in paragraph (a)(ii) above, except
upon presentation of satisfactory evidence that the restrictions on
transfer of the Convertible Preferred Stock or Common Stock referred
to in the legend in paragraph (a)(i) have been complied with, all in
accordance with such reasonable regulations and procedures as the
Corporation may from time to time agree with the transfer agent and
registrar for the Convertible Preferred Stock and the transfer agent
and registrar for the Common Stock.
-20-<PAGE>
(11) Severability of Provisions. Whenever possible, each
provision hereof shall be interpreted in a manner as to be effective
and valid under applicable law, but if any provision hereof is held to
be prohibited by or invalid under applicable law, such provision shall
be ineffective only to the extent of such prohibition or invalidity,
without invalidating or otherwise adversely affecting the remaining
provisions hereof. If a court of competent jurisdiction should
determine that a provision hereof would be valid or enforceable if a
period of time were extended or shortened or a particular percentage
were increased or decreased, then such court may make such change as
shall be necessary to render the provision in question effective and
valid under applicable law.
"FURTHER RESOLVED, that each officer of the Corporation
hereby is authorized, in the name and on behalf of the Corporation, to
prepare, execute, seal and file, or cause to be prepared, executed,
sealed and filed, the Certificate of Designations relating to the
Convertible Preferred Stock in accordance with the Delaware General
Corporation Law and to take any and all such action with respect
thereto that such officer of the Corporation shall deem necessary or
advisable; and
"FURTHER RESOLVED, that each officer of the Corporation
hereby is authorized, in the name and on behalf of the Corporation, to
execute and deliver, or cause to be made, executed and delivered, all
such officers' certificates and such other agreements, undertakings,
documents or instruments and to perform such other acts as such
officer may deem necessary or appropriate in order to effectuate the
purpose and intent of these resolutions;
IN WITNESS WHEREOF, the Corporation has caused this
Certificate to be executed in its name by Mark A. Lettes, its Vice
President, and attested by its Secretary, this 2nd day of June, 1995.
NEW AGI CORPORATION
By /s/ Mark A. Lettes
---------------------------------
Mark A. Lettes
Vice President
Attest:
By /s/ Deborah J. Friedman
-----------------------------
Deborah J. Friedman
Secretary
-21-
CERTIFICATE OF DESIGNATIONS
$3.75 SERIES B CONVERTIBLE PREFERRED STOCK
OF
NEW AGI CORPORATION
PAR VALUE $1.00 PER SHARE
LIQUIDATION VALUE $50 PER SHARE
PURSUANT TO SECTION 151 OF THE GENERAL
CORPORATION LAW OF THE STATE OF DELAWARE
The undersigned duly authorized officer of New AGI
Corporation, a corporation organized and existing under the laws of
the State of Delaware (the "Corporation"), in accordance with the
provisions of Section 103 of the General Corporation Law of the State
of Delaware (the "DGCL"), and pursuant to Section 151 thereof, hereby
certifies as follows:
FIRST: The Certificate of Incorporation, as amended, of the
Corporation authorizes the issuance of up to 210,000,000 shares of
capital stock, of which 200,000,000 shares shall be shares of common
stock, par value $.01 per share ("Common Stock"); and 10,000,000
shares shall be shares of preferred stock, par value $1.00 per share
("Preferred Stock").
SECOND: The Certificate of Incorporation, as amended, of
the Corporation, authorizes the Board of Directors of the Corporation
to provide for the issuance of Preferred Stock in one or more series,
with such designation, powers, preferences and relative,
participating, optional or other special rights, and qualifications,
limitations or restrictions thereof, as shall be stated and expressed
in the resolution or resolutions providing for the issue of such
series adopted by the Board of Directors of the Corporation, subject
to the limitations prescribed by law and except as otherwise provided
in the Certificate of Incorporation or any amendment thereto.
THIRD: Pursuant to authority conferred upon the Board of
Directors of the Corporation by the Certificate of Incorporation, as
amended, of the Corporation under the provisions of Section 151 of the
DGCL, the Board of Directors of the Corporation, at a meeting duly
held on April 26, 1995 adopted the following resolutions providing for
an issue of a series of the Corporation's Preferred Stock, which
resolutions are still in full force and effect and are not in conflict
with any provision of the Certificate of Incorporation, as amended, or
the By-Laws of the Corporation:
"RESOLVED, that pursuant to the authority vested in the
Board of Directors of the Corporation by Section 151 of the DGCL and
the provisions of its Certificate of
<PAGE>
Incorporation, as amended, an issue of a series of the Preferred
Stock, par value $1.00 per share, of the Corporation is hereby
created, consisting of 1,840,000 shares, with the designations,
powers, preferences and relative, participating, optional or other
special rights, and qualifications, limitations or restrictions
thereof, of the shares of such series as follows:
\DA Designation, Number of Shares and Rank. The
--------------------------------------
designation of such series shall be "$3.75 Series B Convertible
Preferred Stock" (hereinafter referred to as the "Series B Convertible
Preferred Stock"). Each share of Series B Convertible Preferred Stock
shall be identical in all respects with the other shares of Series B
Convertible Preferred Stock.
All shares of Series B Convertible Preferred Stock shall
rank prior, both as to payment of dividends and as to distributions of
assets upon liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, to all of the Corporation's now or
hereafter issued Common Stock.
(2) Dividends. The holders of shares of Series B
---------
Convertible Preferred Stock shall be entitled to receive, when, as and
if declared by the Board of Directors of the Corporation, but only out
of funds legally available therefor, dividends at the annual rate of
$3.75 per share, and no more, which shall be fully cumulative, shall
accrue without interest from the date of first issuance and shall be
payable in cash in equal quarterly installments on the 1st day of
August 15, November 15, February 15 and May 15 of each year,
commencing on November 15, 1994 (except that if any such date is not a
business day, then such dividend shall be payable on the next
succeeding business day) (each, a "Dividend Payment Date"), to
stockholders of record as they appear on the stock transfer books of
the Corporation on such record dates, not more than 60 nor less than
10 days preceding such Dividend Payment Date, as are fixed by the
Board of Directors of the Corporation. For the purposes hereof, the
term "business day" shall mean each Monday, Tuesday, Wednesday,
Thursday or Friday which is not a day on which banking institutions
are authorized or obligated by law or executive order to close in New
York, New York. Subject to the next paragraph of this Section 2,
dividends on account of arrears for any past dividend periods may be
declared and paid at any time, without reference to any Dividend
Payment Date, to holders of record on such date, not exceeding 45 days
preceding the payment date thereof, as may be fixed by the Board of
Directors of the Corporation. The amount of dividends payable per
share of Series B Convertible Preferred Stock for each quarterly
dividend period shall be computed by dividing the annual amount by
four. The amount of dividends payable on the Series B Convertible
Preferred Stock for the initial dividend period and for any period
less than a full quarterly dividend period shall be computed on the
basis of a 360-day year consisting of twelve 30-day months. Holders
of shares of Series B Convertible Preferred Stock shall not be
entitled to any dividend whether payable in cash, property or stock,
in excess of the full cumulative dividends on such shares of Series B
Convertible Preferred Stock.
On each Dividend Payment Date all dividends which shall have
accrued on each share of Series B Convertible Preferred Stock
outstanding on such Dividend Payment Date shall accumulate and be
deemed to become "due" whether or not declared and whether or not
there shall be funds legally available for the payment thereof. Any
dividend which
-2-<PAGE>
shall not be paid on the Dividend Payment Date on which it shall
become due shall be deemed to be "past due" until such dividend shall
be paid or until the share of Series B Convertible Preferred Stock
with respect to which such dividend became due shall no longer be
outstanding, whichever is the earlier to occur. No interest or sum of
money or other property or securities in lieu of interest shall be
payable in respect of any dividend payment or payments which are past
due. Dividends paid on shares of Series B Convertible Preferred Stock
in an amount less than the total amount of such dividends at the time
accumulated and payable on such shares shall be allocated pro rata on
a share-by-share basis among all such shares at the time outstanding.
No dividends or other distributions, other than dividends
payable solely in shares of Common Stock, shall be paid, or declared
and set apart for payment in respect of, and no purchase, redemption
or other acquisition for any consideration shall be made by the
Corporation of and no sinking fund or other analogous fund payments
shall be made in respect of any shares of Common Stock or other
capital stock of the Corporation ranking junior as to dividends or as
to liquidation rights to the Series B Convertible Preferred Stock (the
"Junior Dividend Stock") unless and until all accrued and unpaid
dividends on the Series B Convertible Preferred Stock, including the
full dividend for the then current dividend period, shall have been
paid or declared and set apart for payment and the Corporation is not
in default in respect of the optional redemption of any shares of
Series B Convertible Preferred Stock.
No dividends or other distributions shall be paid or
declared and set apart for payment and no purchase, redemption or
other acquisition for any consideration shall be made by the
Corporation of, and no sinking fund or other analogous fund payments
shall be made in respect of, any class or series of the Corporation's
capital stock ranking, as to dividends, on a parity with the Series B
Convertible Preferred Stock (the "Parity Dividend Stock"), including
any then outstanding $2.25 Series A Convertible Preferred Stock, par
value $1.00 per share (the "Series A Preferred Stock"), for any period
unless full cumulative dividends have been, or contemporaneously are,
paid or declared and set apart for such payment on the Series B
Convertible Preferred Stock for all dividend payment periods
terminating on or prior to the date of payment of such full cumulative
dividends. No dividends shall be paid or declared and set apart for
payment on the Series B Convertible Preferred Stock for any period
unless full cumulative dividends have been, or contemporaneously are,
paid or declared and set apart for payment on the Parity Dividend
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 upon the Series B Convertible Preferred Stock and the
Parity Dividend Stock, all dividends paid or declared and set apart
for payment upon shares of Series B Convertible Preferred Stock and
the Parity Dividend Stock shall be paid or declared and set apart for
payment pro rata so that the amount of dividends paid or declared and
set apart for payment per share on the Series B Convertible Preferred
Stock and the Parity Dividend Stock shall in all cases bear to each
other the same ratio that accrued and unpaid dividends per share on
the shares of Series B Convertible Preferred Stock and the Parity
Dividend Stock bear to each other.
-3-<PAGE>
The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any
shares of capital stock of the Corporation or any Parity Dividend
Stock unless the Corporation could, under this Section 2, purchase or
otherwise acquire such shares at such time and in such manner. Any
reference to "distribution" contained in this Section 2 shall not be
deemed to include any distribution made in connection with any
liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary.
(3) Liquidation Preference. In the event of any
----------------------
liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, the holders of shares of Series B
Convertible Preferred Stock shall be entitled to receive out of the
assets of the Corporation, whether such assets are stated capital or
surplus of any nature, an amount equal to the dividends accrued and
unpaid thereon to the date of final distribution to such holders,
whether or not declared, without interest, and a sum equal to $50.00
per share, and no more, before any payment shall be made or any assets
distributed to the holders of Common Stock or any other class or
series of the Corporation's capital stock ranking junior as to
liquidation rights to the Series B Convertible Preferred Stock (the
"Junior Liquidation Stock"). In the event the assets of the
Corporation available for distribution to stockholders upon any
liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, shall be insufficient to pay in full the
amounts payable with respect to the Series B Convertible Preferred
Stock and any other class or series of the Corporation's capital stock
which has been or may hereafter be created ranking on a parity as to
liquidation rights with the Series B Convertible Preferred Stock (the
"Parity Liquidation Stock"), including any then outstanding Series A
Preferred Stock, the holders of the Series B Convertible Preferred
Stock and the holders of the Parity Liquidation Stock shall share
ratably in any distribution of assets of the Corporation in proportion
to the full respective preferential amounts to which they are entitled
(but only to the extent of such preferential amounts). After payment
in full of the liquidation preferences of the shares of Series B
Convertible Preferred Stock, the holders of such shares shall not be
entitled to any further participation in any distribution of assets by
the Corporation. Neither a consolidation, merger or other business
combination of the Corporation with or into another corporation or
other entity nor a sale or transfer of all or part of the
Corporation's assets for cash, securities or other property shall be
considered a liquidation, dissolution or winding up of the Corporation
for purposes of this Section 3 (unless in connection therewith the
liquidation of the Corporation is specifically approved).
The holder of any shares of Series B Convertible Preferred
Stock shall not be entitled to receive any payment owed for such
shares under this Section 3 until such holder shall cause to be
delivered to the Corporation (i) the certificate(s) representing such
shares of Series B Convertible Preferred Stock and (ii) transfer
instrument(s) satisfactory to the Corporation and sufficient to
transfer such shares of Series B Convertible Preferred Stock to the
Corporation free of any liens or encumbrances thereon or rights of
third parties thereto. As in the case of the Redemption Price
referred to below, no interest shall accrue on any payment upon
liquidation after the due date thereof.
-4-<PAGE>
(4) Redemption at the Option of the Corporation.
-------------------------------------------
(a) Right of Redemption. Subject to and upon
-------------------
compliance with the provisions of this Section 4, the Corporation, at
its option, may at any time redeem the Series B Convertible Preferred
Stock, in whole or from time to time in part, on any date on or after
August 15, 1997 set by the Board of Directors of the Corporation, at
the following redemption prices per share, if redeemed during the
12-month period commencing on August 15, of the year indicated:
Price
Years per Share
----- ---------
1997 . . . . . . . . . . . . . . . . . . $52.625
1998 . . . . . . . . . . . . . . . . . . 52.250
1999 . . . . . . . . . . . . . . . . . . 51.875
2000 . . . . . . . . . . . . . . . . . . 51.500
2001 . . . . . . . . . . . . . . . . . . 51.125
2002 . . . . . . . . . . . . . . . . . . 50.750
2003 . . . . . . . . . . . . . . . . . . 50.375
2004 and thereafter. . . . . . . . . . . 50.000
plus in each case accrued and unpaid dividends to, but excluding, the
date of redemption.
In case of the redemption of less than all of the then
outstanding Series B Convertible Preferred Stock, the shares of
Series B Convertible Preferred Stock to be redeemed shall be redeemed
pro rata or by lot or in such other equitable manner as the Board of
Directors of the Corporation reasonably may determine.
Notwithstanding the foregoing, the Corporation shall not redeem less
than all of the Series B Convertible Preferred Stock at any time
outstanding until all dividends accrued and in arrears upon all
Series B Convertible Preferred Stock and Parity Dividend Stock then
outstanding shall have been paid for all past dividend periods.
(b) Manner of Exercise of Redemption Option. In order
---------------------------------------
to exercise its redemption option, the Corporation must give written
notice in person or by first class mail, postage prepaid, of such
redemption to each holder of record of the shares of Series B
Convertible Preferred Stock to be redeemed, at such holder's address
as it shall appear upon the stock transfer books of the Corporation
not more than 60 days nor less than 30 days prior to the redemption
date. Each such notice of redemption shall state, as appropriate:
(1) the date fixed for redemption; (2) the number of shares of
Series B Convertible Preferred Stock to be redeemed and, if fewer than
all of the shares held by such holder are to be redeemed, the number
of such shares to be redeemed from such holder; (3) the Redemption
Price per share of Series B Convertible Preferred Stock; (4) the place
or places of payment that payment of the Redemption Price will be made
upon presentation and surrender of the certificate or certificates
evidencing the shares of Series B Convertible Preferred Stock to be
redeemed; (5) that on and after the redemption date, dividends will
cease to accrue on such shares; and (6) the then effective Conversion
Price pursuant to Section 5 and that the right of
-5-<PAGE>
holders to convert shall terminate at the close of business on the
redemption date (unless the Corporation defaults in the payment of the
Redemption Price).
Any notice that is delivered or mailed as herein
provided shall be conclusively presumed to have been duly given,
whether or not the holder of the Series B Convertible Preferred Stock
receives such notice; and failure to give such notice, or any defect
in such notice, to the holders of any shares designated for redemption
shall not affect the validity of the proceedings for the redemption of
any other shares of Series B Convertible Preferred Stock. On or after
the date fixed for redemption as stated in such notice, each holder of
the shares of Series B Convertible Preferred Stock called for
redemption shall surrender the certificate or certificates evidencing
such shares to the Corporation at the place designated in such notice
and shall thereupon be entitled to receive payment of the Redemption
Price as herein provided. If less than all the shares represented by
any such surrendered certificate are redeemed, a new certificate shall
be issued representing the unredeemed shares. If, on the date fixed
for redemption, cash necessary for the redemption shall be available
for such purpose and irrecoverably shall have been deposited or set
apart, then, notwithstanding that the certificates evidencing any
shares so called for redemption shall not have been surrendered, the
dividends with respect to the shares so called shall cease to accrue
after the date fixed for redemption, the shares no longer shall be
deemed outstanding, the holders thereof shall cease to be holders of
Series B Convertible Preferred Stock, and all rights whatsoever with
respect to the shares so called for redemption (except the right of
the holders to receive payment of the Redemption Price as herein
provided, without interest, upon surrender of their certificates
therefor) shall terminate. Any cash necessary for the redemption of
shares of Series B Convertible Preferred Stock shall be deemed to be
available therefor for purposes of the preceding sentence and for
purposes of Section 7, if, on or before the date fixed for redemption,
the Company shall deposit with a bank or trust company that has an
office in the Borough of Manhattan, City of New York, and that has, or
is an affiliate of a bank that has, a capital surplus of at least
$50,000,000, the cash necessary for such redemption, in trust, with
irrevocable instructions that such cash be applied to the redemption
of the shares of the Series B Convertible Preferred Stock and any
Parity Dividend Stock so called for redemption. No interest shall
accrue for the benefit of the holders of shares of Series B
Convertible Preferred Stock to be redeemed on any cash so set apart by
the Corporation. Subject to applicable escheat laws, any such cash
unclaimed at the end of six years from the redemption date shall
revert to the general funds of the Corporation, after which reversion
the holders of such shares so called for redemption shall look only to
the general funds of the Corporation for the payment of such cash.
The holder of any shares of Series B Convertible
Preferred Stock redeemed upon any exercise of the Corporation's
redemption right shall not be entitled to receive payment of the
Redemption Price for such shares until such holder shall cause to be
delivered to the place specified in the notice given with respect to
such redemption (i) the certificate or certificates representing such
shares of Series B Convertible Preferred Stock redeemed and
(ii) transfer instruments satisfactory to the Corporation and
sufficient to transfer such shares of Series B Convertible Preferred
Stock to the Corporation free of any adverse interest. No interest
shall accrue on the Redemption Price of any share of Series B
Convertible Preferred Stock after its redemption date.
-6-<PAGE>
In the event that any shares of Series B Convertible
Preferred Stock shall be converted into Common Stock pursuant to
Section 5, then (i) the Corporation shall not have the right to redeem
such shares and (ii) any funds which shall have been deposited for the
payment of the Redemption Price for such shares of Series B
Convertible Preferred Stock shall be returned to the Corporation
immediately after such conversion (subject to declared dividends
payable to holders of shares of Series B Convertible Preferred Stock
on the record date for such dividends, to the extent set forth in
Section 5 hereof, regardless of whether such shares are converted
subsequent to such record date and prior to the related Dividend
Payment Date).
(c) Cash Payments in Lieu of Fractional Shares. No
------------------------------------------
fractional shares of Series B Convertible Preferred Stock shall be
issued upon any redemption of Series B Convertible Preferred Stock,
but, in lieu thereof, the Corporation shall pay to the holder of such
shares an appropriate amount in cash (computed to the nearest cent)
based on the value of the shares of Series B Convertible Preferred
Stock as determined in good faith by the Corporation's Board of
Directors.
(5) Conversion.
----------
(a) Right of Conversion. Subject to and upon
-------------------
compliance with the provisions of this Section 5, each share of
Series B Convertible Preferred Stock shall, at the option of the
holder thereof, be convertible at any time (unless such share is
called for redemption, then to and including but not after 5:00 p.m.
(New York City time) on the date fixed for such redemption, unless the
Corporation shall default in payment due upon redemption thereof),
into that number of fully paid and non-assessable shares of Common
Stock (calculated as to each conversion to the nearest 1/100th of a
share) obtained by dividing $50.00 by the Conversion Price (as defined
in Section 5(d)) in effect at such time and by surrender of such share
so to be converted in the manner provided in Section 5(b).
(b) Manner of Exercise of Conversion Privilege. In
------------------------------------------
order to exercise the conversion privilege, the holder of one or more
shares of Series B Convertible Preferred Stock to be converted shall
surrender such shares at any of the offices or agencies to be
maintained for such purpose by the Corporation accompanied by the
funds, if any, required by the last paragraph of this Section 5(b) and
shall give written notice of conversion in the form provided on such
shares of Series B Convertible Preferred Stock (or such other notice
as is reasonably acceptable to the Corporation) to the Corporation at
such office or agency that the holder elects to convert the shares of
Series B Convertible Preferred Stock specified in said notice. Such
notice shall also state the name or names, together with address or
addresses, in which the certificate or certificates for shares of
Common Stock which shall be issuable on such conversion shall be
issued. Each share of Series B Convertible Preferred Stock
surrendered for conversion, unless the shares issuable on conversion
are to be issued in the same name as the name in which such share of
Series B Convertible Preferred Stock is registered, shall be
accompanied by instruments of transfer, in form satisfactory to the
Corporation, duly executed by the holder or such holder's duly
authorized attorney. As promptly as practicable after the surrender
of such shares of Series B Convertible Preferred Stock and the receipt
of such notice, instruments of transfer
-7-<PAGE>
and funds, if any, as aforesaid, the Corporation shall issue and shall
deliver at such office or agency to such holder, or on his written
order, a certificate or certificates for the number of full shares of
Common Stock issuable upon the conversion of such shares of Series B
Convertible Preferred Stock in accordance with the provisions of this
Section 5 and a check or cash in respect of any fractional interest in
a share of Common Stock arising upon such conversion, as provided in
Section 5(c).
Each conversion shall be deemed to have been effected
immediately prior to the close of business on the business day
following the date on which such shares of Series B Convertible
Preferred Stock shall have been surrendered and such notice (and any
applicable instruments of transfer and any required taxes) received by
the Corporation as aforesaid, and the person or persons in whose name
or names any certificate or certificates for shares of Common Stock
shall be issuable upon such conversion shall be deemed to have become
the holder or holders of record of the shares represented thereby at
such time on such date, and such conversion shall be at the Conversion
Price in effect at such time on such date, unless the stock transfer
books of the Corporation shall be closed on that date, in which event
such person or persons shall be deemed to have become such holder or
holders of record at the close of business on the next succeeding day
on which such stock transfer books are open, and such conversion shall
be at the Conversion Price in effect on the close of business on such
next succeeding business day upon which such shares of Series B
Convertible Preferred Stock shall have been surrendered and such
notice received by the Corporation.
Any shares of Series B Convertible Preferred Stock
surrendered for conversion during the period from the close of
business on the record date for any dividend payment to the opening of
business on the related Dividend Payment Date (unless such shares of
Series B Convertible Preferred Stock shall have been called for
redemption on a date in such period) shall be accompanied by payment,
in funds acceptable to the Corporation, of an amount equal to the
dividend otherwise payable on such Dividend Payment Date. Except as
provided for above in this Section, no adjustment shall be made for
dividends accrued on any shares of Series B Convertible Preferred
Stock converted or for dividends on any shares issued upon the
conversion of such shares as provided in this Section.
(c) Cash Payments in Lieu of Fractional Shares. No
------------------------------------------
fractional shares or scrip representing fractions of shares of Common
Stock shall be issued upon conversion of Series B Convertible
Preferred Stock. If more than one share of Series B Convertible
Preferred Stock shall be surrendered for conversion at one time by the
same holder, the number of full shares of Common Stock issuable upon
conversion thereof shall be computed on the basis of the aggregate of
$50.00 for each such share so surrendered. In lieu of any fractional
interest in a share of Common Stock which would otherwise be
deliverable upon the conversion of any share of Series B Convertible
Preferred Stock, the Corporation shall pay to the holder of such
shares an amount in cash (computed to the nearest cent) equal to the
average Closing Price per share of Common Stock as calculated for the
ten day trading period ending on the fifth trading day prior to the
day of conversion multiplied by the fractional interest in a share of
Common Stock that otherwise would have been deliverable upon
conversion of such share.
-8-<PAGE>
(d) Adjustment of Conversion Price. The "Conversion Price"
------------------------------
shall mean and be $8.25, subject to adjustment from time to time by
the Corporation as follows:
(i) In case the Corporation shall (A) pay a dividend
or make a distribution on its Common Stock in shares of Common
Stock (other than pursuant to a dividend reinvestment or similar
plan), (B) subdivide its outstanding shares of Common Stock into
a greater number of shares, (C) combine its outstanding shares of
Common Stock into a smaller number of shares, or (D) issue by
reclassification of its Common Stock any shares of capital stock
of the Corporation, then in each such case the Conversion Price
in effect immediately prior to such action shall be adjusted so
that the holder of any share of Series B Convertible Preferred
Stock thereafter surrendered for conversion shall be entitled to
receive the number of shares of Common Stock or other capital
stock of the Corporation which he would have owned or been
entitled to receive immediately following such action had such
share been converted immediately prior to the occurrence of such
event. An adjustment made pursuant to this subsection (i) shall
become effective immediately after the record date, in the case
of a dividend or distribution, or immediately after the effective
date, in the case of a subdivision, combination or
reclassification.
(ii) In case the Corporation shall issue rights,
options or warrants to all holders of its outstanding shares of
Common Stock entitling them to subscribe for or purchase shares
of Common Stock at a price per share less than the current market
price per share (as determined pursuant to subsection (iv) of
this Section 5(d)) of the Common Stock (other than pursuant to
any stock option, restricted stock or other incentive or benefit
plan or stock ownership or purchase plan for the benefit of
employees, directors or officers or any dividend reinvestment
plan of the Corporation in effect at the time hereof or any other
similar plan adopted or implemented hereafter), then with respect
to any conversion prior to the expiration of such rights, options
or warrants, the Conversion Price in effect immediately prior
thereto shall be adjusted so that it shall equal the price
determined by multiplying the Conversion Price in effect
immediately prior to the date of issuance of such rights, options
or warrants by a fraction of which the numerator shall be the
number of shares of Common Stock outstanding on the date of
issuance of such rights, options or warrants (immediately prior
to such issuance) plus the number of shares which the aggregate
offering price of the total number of shares so offered would
purchase at such current market price, and of which the
denominator shall be the number of shares of Common Stock
outstanding on the date of issuance of such rights, options or
warrants (immediately prior to such issuance) plus the number of
additional shares of Common Stock offered for subscription or
purchase. Such adjustment shall be made successively whenever
any rights, options or warrants are issued, and shall become
effective immediately after the record date for the determination
of stockholders entitled to receive such rights, options or
warrants; provided, however, in the event that all the shares of
Common Stock offered for subscription or purchase are not
delivered upon the exercise of such rights, options or warrants,
upon the expiration of such rights, options or warrants the
Conversion Price shall be readjusted to the Conversion Price
which would have been in effect had the numerator and the
-9-<PAGE>
denominator of the foregoing fraction and the resulting
adjustment been made based upon the number of shares of Common
Stock actually delivered upon the exercise of such rights,
options or warrants rather than upon the number of shares of
Common Stock offered for subscription or purchase. In
determining whether any rights, options or warrants entitle the
holders to subscribe for or purchase shares of Common Stock at
less than such current market price, and in determining the
aggregate offering price of such shares of Common Stock, there
shall be taken into account any consideration received by the
Corporation for such rights, options or warrants, the value of
such consideration, if other than cash, to be determined by the
Audit Committee of the Board of Directors of the Corporation
(whose reasonable determination shall be conclusive, except for
arithmetic errors, and shall be described in a statement filed by
the Corporation with the stock transfer agent).
(iii) In case the Corporation shall, by dividend or
otherwise, distribute to all holders of its outstanding Common
Stock, evidences of its indebtedness or assets (including
securities and cash, but excluding any cash dividend of the
Corporation paid out of retained earnings and dividends or
distributions payable in stock pursuant to a dividend
reinvestment or similar plan or for which adjustment is made
pursuant to subsection (i) of this Section 5(d)) or rights,
options or warrants to subscribe for or purchase securities of
the Corporation (excluding those referred to in subsection (ii)
of this Section 5(d)), then in each such case 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 record date of such distribution by a
fraction of which the numerator shall be the current market price
per share of the Common Stock as determined pursuant to
subsection (iv) of this Section 5(d) less the fair market value
on such record date (as determined by the Audit Committee of the
Board of Directors of the Corporation, whose reasonable
determination shall be conclusive, except for arithmetic errors,
and shall be described in a statement filed by the Corporation
with the stock transfer agent) of the portion of the capital
stock or assets or the evidences of indebtedness or assets so
distributed to the holder of one share of Common Stock or of such
subscription rights, options or warrants applicable to one share
of Common Stock, and of which the denominator shall be such
current market price per share of Common Stock. Such adjustment
shall become effective immediately after the record date for the
determination of stockholders entitled to receive such
distribution.
(iv) For the purpose of any computation under
subsections (ii) and (iii) of this Section 5(d), the current
market price per share of Common Stock on any date shall be
deemed to be the average of the Closing Price for the shorter of
(A) 30 consecutive trading days ending on the last full trading
day prior to the Time of Determination or (B) the period
commencing on the date next succeeding the first public
announcement of the issuance of such rights, options or warrants
or such distribution through such last full trading day prior to
the Time of Determination. For purposes of the foregoing, the
term "Time of Determination" shall mean the time and date of the
earlier of (I) the record date for determining stockholders
entitled to receive the rights, options, warrants or
distributions referred to in Section 5(d)(ii)
-10-<PAGE>
and (iii) or (II) the commencement of "ex-dividend" trading on
the New York Stock Exchange or such other United States exchange
or market on which the Common Stock of the Corporation is then
listed or admitted for trading.
(v) In any case in which this Section 5(d) shall
require that an adjustment be made immediately following a record
date or an effective date, the Corporation may elect to defer
(but only until the filing by the Corporation with the stock
transfer agent of the certificate required by subsection (vii) of
this Section 5(d)) issuing to the holder of any share of Series B
Convertible Preferred Stock converted after such record date or
effective date the shares of Common Stock issuable upon such
conversion over and above the shares of Common Stock issuable
upon such conversion on the basis of the Conversion Price prior
to adjustment, and paying to such holder any amount of cash in
lieu of a fractional share.
(vi) No adjustment in the Conversion Price shall be
required to be made unless such adjustment would require an
increase or decrease of at least 1% of such price; provided,
however, that any adjustments which by reason of this
subsection (vi) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All
calculations under this Section 5(d) shall be made to the nearest
cent or to the nearest 1/100th of a share, as the case may be.
Anything in this Section 5(d) to the contrary notwithstanding,
the Corporation shall be entitled to make such reduction in the
Conversion Price, in addition to those required by this
Section 5(d), as it in its discretion shall determine to be
advisable in order that any stock dividend, subdivision of
shares, distribution of rights to purchase stock or securities,
or distribution of securities convertible into or exchangeable
for stock hereafter made by the Corporation to its stockholders
shall not be taxable to the recipients. Except as set forth in
subsections (i), (ii) and (iii) above, the Conversion Price shall
not be adjusted for any such event including, without limitation,
the issuance of Common Stock, or any securities convertible into
or exchangeable for Common Stock or carrying the right to
purchase any of the foregoing, in exchange for cash, property or
services.
(vii) Whenever the Conversion Price is adjusted as
herein provided, (A) the Corporation promptly shall file with the
stock transfer agent a certificate setting forth the Conversion
Price after such adjustment and a brief statement of the facts
requiring such adjustment and the manner of computing the same,
which certificate shall be conclusive evidence of the correctness
of such adjustment, except for arithmetic errors, and (B) the
Corporation also shall deliver or mail, or cause to be delivered
or mailed by first class mail, postage prepaid, as soon as
practicable to each holder of record of shares of Series B
Convertible Preferred Stock a notice stating that the Conversion
Price has been adjusted and setting forth the adjusted Conversion
Price. The stock transfer agent shall not be under any duty or
responsibility with respect to the certificate required by this
subsection (vii) except to exhibit the same to any holder of
shares of Series B Convertible Preferred Stock who requests to
inspect it.
-11-<PAGE>
(viii) In the event that at any time, as a result of
an adjustment made pursuant to subsection (i) of this
Section 5(d), the holder of any share of Series B Convertible
Preferred Stock thereafter surrendered for conversion shall
become entitled to receive any shares of the Corporation other
than shares of Common Stock, thereafter the Conversion Price of
such other shares so receivable upon conversion of any share of
Series B Convertible Preferred Stock shall be subject to
adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to
Common Stock contained in this Section.
(ix) The Corporation from time to time may decrease the
Conversion Price by any amount for any period of time if the
period is at least 20 days and if the decrease is irrevocable
during the period. Whenever the Conversion Price is so
decreased, the Corporation shall deliver or mail to holders of
record of shares of Series B Convertible Preferred Stock a notice
of the decrease at least 15 days before the date the decreased
Conversion Price takes effect, and such notice shall state the
decreased Conversion Price and the period it will be in effect.
(e) Notice to Holders Prior to Certain Corporate
--------------------------------------------
Actions. In case:
- -------
(i) the Corporation shall take any action which would
require an adjustment in the Conversion Price pursuant to
Section 5(d)(iii); or
(ii) the Corporation shall authorize the granting to
the holders of its Common Stock generally of rights, options or
warrants to subscribe for or purchase any shares of stock of any
class or of any other rights; or
(iii) there shall be any reorganization or
reclassification of the Common Stock (other than a subdivision or
combination of the outstanding Common Stock and other than a
change in the par value of the Common Stock), or any
consolidation or merger to which the Corporation is a party or
any statutory exchange of securities with another corporation and
for which approval of any stockholders of the Corporation is
required, or any sale, lease or transfer of all or substantially
all of the assets of the Corporation; or
(iv) there shall be a voluntary or involuntary
dissolution, liquidation or winding-up of the Corporation;
then in each such case the Corporation shall cause to be delivered or
mailed by first class mail, postage prepaid, to the holders of shares
of Series B Convertible Preferred Stock and the stock transfer agent,
as promptly as possible, but in any event at least 20 days prior to
the applicable date hereinafter specified, a written notice stating
(i) the date on which a record is to be taken for the purpose of such
action or granting of rights, options or warrants, or, if a record is
not to be taken, the date as of which the holders of Common Stock of
record to be entitled to such distribution, rights, options or
warrants are to be determined, or (ii) the date on which such
reorganization, reclassification, consolidation, merger, statutory
exchange, sale, lease, transfer, dissolution, liquidation or winding-
up is
-12-<PAGE>
expected to become effective or occur, and the date as of which it is
expected that holders of Common Stock of record shall be entitled to
exchange their shares of Common Stock for securities, cash or other
property deliverable upon such reorganization, reclassification,
consolidation, merger, statutory exchange, sale, lease, transfer,
dissolution, liquidation or winding-up. Failure to give such notice
or any defect therein shall not affect the legality or validity or the
proceedings described in subsection (i), (ii), (iii) or (iv) of this
Section 5(e).
(f) Reservation of Shares of Common Stock. The
-------------------------------------
Corporation covenants that it will, at all times, reserve and keep
available, free from preemptive rights, out of the aggregate of its
authorized but unissued shares of Common Stock for the purpose of
effecting conversions of shares of Series B Convertible Preferred
Stock, the full number of shares of Common Stock deliverable upon the
conversion of all outstanding shares of Series B Convertible Preferred
Stock not theretofore converted and on or before (and as a condition
of) taking any action that would cause an adjustment of the Conversion
Price resulting in an increase in the number of shares of Common Stock
deliverable upon conversion above the number thereof previously
reserved and available therefor, the Corporation shall take all such
action so required. For purposes of this Section 5(f), the number of
shares of Common Stock which shall be deliverable upon the conversion
of all outstanding shares of Series B Convertible Preferred Stock
shall be computed as if at the time of computation all outstanding
shares of Series B Convertible Preferred Stock were held by a single
holder.
Before taking any action that would cause an adjustment
reducing the Conversion Price below the then par value (if any) of the
shares of Common Stock deliverable upon conversion of the shares of
Series B Convertible Preferred Stock, the Corporation shall take any
corporate action which may, in the opinion of its counsel, be
necessary in order that the Corporation may validly and legally issue
fully paid and non-assessable shares of Common Stock at such adjusted
Conversion Price.
(g) Transfer Taxes, Etc. The Corporation shall pay
-------------------
any and all documentary stamp, issue or transfer taxes, and any other
similar taxes payable in respect of the issue or delivery of shares of
Common Stock upon conversion of shares of Series B Convertible
Preferred Stock pursuant hereto; provided, however, that the
Corporation shall not be required to pay any tax that may be payable
in respect of any transfer involved in the issue or delivery of shares
of Common Stock in a name other than that of the holder of the shares
of Series B Convertible Preferred Stock to be converted and no such
issue or delivery shall be made unless and until the person requesting
such issue or delivery has paid to the Corporation the amount of any
such tax or has established, to the satisfaction of the Corporation,
that such tax has been paid.
(h) Consolidation or Merger or Sale of Assets.
-----------------------------------------
Notwithstanding any other provision herein to the contrary, in case of
any consolidation or merger to which the Corporation is a party (other
than a merger or consolidation in which the Corporation is the
continuing corporation and in which the Common Stock outstanding
immediately prior to the merger or consolidation is not exchanged for
cash, or the securities or other property of another corporation), or
in case of any sale, lease or transfer to another corporation of the
-13-<PAGE>
property of the Corporation as an entirety or substantially as an
entirety, then lawful provision shall be made by the corporation
formed by such consolidation or the corporation whose securities, cash
or other property immediately after the merger or consolidation will
be owned, by virtue of the merger or consolidation, by the holders of
Common Stock immediately prior to the merger or consolidation, or the
corporation which shall have acquired such assets or securities of the
Corporation (collectively the "Formed, Surviving or Acquiring
Corporation"), as the case may be, providing that the holder of each
share of Series B Convertible Preferred Stock then outstanding shall
have the right thereafter to convert such share into the kind and
amount of securities, cash or other property receivable upon such
consolidation, merger, sale, lease or transfer by a holder of the
number of shares of Common Stock into which such share of Series B
Convertible Preferred Stock might have been converted immediately
prior to such consolidation, merger, sale, lease or transfer assuming
such holder of Common Stock did not exercise his rights of election,
if any, as to the kind or amount of securities, cash or other property
receivable upon such consolidation, merger, sale, lease or transfer
(provided that, if the kind or amount of securities, cash or other
property receivable upon such consolidation, merger, sale, lease or
transfer is not the same for each share of Common Stock in respect of
which such rights of election shall not have been exercised ("non-
electing share"), then for the purposes of this Section 5(h) the kind
and amount of securities, cash or other property receivable upon such
consolidation, merger, sale, lease or transfer for each non-electing
share shall be deemed to be the kind and amount so receivable per
share by a plurality of the non-electing shares). The Formed,
Surviving or Acquiring Corporation, as the case may be, shall make
provision in its certificate or articles of incorporation or other
constituent documents to the end that the provisions set forth in this
Section 5(h) shall thereafter correspondingly be made applicable, as
nearly as may reasonably be, in relation to any shares of stock or
other securities or property thereafter deliverable on the conversion
of the Series B Convertible Preferred Stock.
The above provisions of this Section 5(h) shall
similarly apply to successive consolidations, mergers, sales, leases
or transfers.
(i) Covenant as to Common Stock. The Corporation
---------------------------
covenants that all shares of Common Stock which may be delivered upon
conversions of shares of Series B Convertible Preferred Stock will
upon delivery be duly and validly issued and fully paid and
nonassessable, free of all liens and charges and not subject to any
preemptive rights.
The Corporation will list and keep listed, so long as the
Common Stock shall be listed on The New York Stock Exchange, all
Common Stock issuable upon conversion of the shares of Series B
Convertible Preferred Stock.
(6) Voting Rights.
-------------
(a) General. The holders of Series B Convertible
-------
Preferred Stock shall not have any voting rights except as set forth
below or as otherwise from time to time required by law. In
connection with any right to vote, each holder of Series B Convertible
Preferred Stock will have one vote for each share held. Any shares of
Series B Convertible Preferred Stock held by the Corporation or any
entity controlled by the Corporation shall not
-14-<PAGE>
have voting rights hereunder and shall not be counted in determining
the presence of a quorum.
(b) Default Voting Rights. Whenever dividends on the
---------------------
Series B Convertible Preferred Stock shall be in arrears in an amount
equal to at least six quarterly dividend payments (whether or not
consecutive), (i) the number of members of the Board of Directors of
the Corporation shall be increased by two, effective as of the time of
election of such directors as hereinafter provided, and (ii) the
holders of the Series B Convertible Preferred Stock (voting as a class
together with all other affected classes or series of the Parity
Dividend Stock upon which like voting rights have been conferred and
are exercisable (other than the Series A Preferred Stock)) will have
the exclusive right to vote for and elect such two additional
directors of the Corporation at any meeting of stockholders of the
Corporation at which directors are to be elected held during the
period such dividends remain in arrears. The right of the holders of
the Series B Convertible Preferred Stock to vote for such two
additional directors shall terminate when all accrued and unpaid
dividends on the Series B Convertible Preferred Stock have been
declared and paid or set apart for payment. The term of office of all
directors so elected shall terminate immediately upon the termination
of the right of the holders of the Series B Convertible Preferred
Stock and such Parity Dividend Stock to vote for such two additional
directors.
The foregoing right of the holders of the Series B
Convertible Preferred Stock with respect to the election of two
directors may be exercised at any annual meeting of stockholders or at
any special meeting of stockholders held for such purpose. If the
right to elect directors shall have accrued to the holders of the
Series B Convertible Preferred Stock more than 90 days preceding the
date established for the next annual meeting of stockholders, the
President of the Corporation shall, within 20 days after the delivery
to the Corporation at its principal office of a written request for a
special meeting signed by the holders of at least ten percent (10%) of
the Series B Convertible Preferred Stock then outstanding, call a
special meeting of the holders of the Series B Convertible Preferred
Stock to be held within 60 days after the delivery of such request for
the purpose of electing such additional directors.
The holders of the Series B Convertible Preferred Stock
and any such Parity Dividend Stock referred to above (excluding the
holders of Series A Preferred Stock) voting together shall have the
right to remove without cause at any time and replace any directors
such holders have elected pursuant to this Section 6.
(c) Class Voting Rights. So long as the Series B
-------------------
Convertible Preferred Stock is outstanding, the Corporation shall not,
without the affirmative vote or consent of the holders of at least 66
2/3 percent of all outstanding shares of Series B Convertible
Preferred Stock (unless the vote or consent of a greater percentage is
required by applicable law or the Certificate of Incorporation, as
amended, of the Corporation), voting separately as a class, (i) amend,
alter or repeal (by merger, consolidation or otherwise) any provision
of the Certificate of Incorporation, as amended, or the Bylaws of the
Corporation, as amended, so as to affect adversely the relative
rights, preferences, qualifications, limitations or restrictions of
the Series B Convertible Preferred Stock, (ii) authorize or issue,
-15-<PAGE>
or increase the authorized amount of, any additional class or series
of stock, or any security convertible into stock of such class or
series, ranking prior to the Series B Convertible Preferred Stock in
respect of the payment of dividends or upon liquidation, dissolution
or winding up of the Corporation or (iii) effect any reclassification
of the Series B Convertible Preferred Stock. A class vote on the part
of the Series B Convertible Preferred Stock, without limitation,
specifically shall not be deemed to be required (except as otherwise
required by law or resolution of the Board of Directors of the
Corporation) in connection with: (a) the authorization, issuance or
increase in the authorized amount of any shares of any other class or
series of stock that ranks junior to, or on a parity with, the
Series B Convertible Preferred Stock in respect of the payment of
dividends and upon liquidation, dissolution or winding up of the
Corporation; or (b) the authorization, issuance or increase in the
amount of any notes, bonds, mortgages, debentures or other obligations
of the Corporation not convertible into or exchangeable, directly or
indirectly, for stock ranking prior to the Series B Convertible
Preferred Stock in respect of the payment of dividends or upon
liquidation, dissolution or winding up of the Corporation.
(7) Outstanding Shares. For purposes of this Certificate
------------------
of Designations, all shares of Series B Convertible Preferred Stock
shall be deemed outstanding except (i) from the date fixed for
redemption pursuant to Section 4, all shares of Series B Convertible
Preferred Stock that have been so called for redemption under
Section 4 if the cash necessary for payment of the Redemption Price
irrevocably has been set aside; (ii) from the date of surrender of
certificates representing shares of Series B Convertible Preferred
Stock, all shares of Series B Convertible Preferred Stock converted
into Common Stock; and (iii) from the date of registration of
transfer, all shares of Series B Convertible Preferred Stock held of
record by the Corporation or any subsidiary of the Corporation.
(8) No Other Rights and Powers. The shares of Series B
--------------------------
Convertible Preferred Stock shall not have any relative,
participating, optional or other special rights and powers other than
as set forth herein.
(9) Preemptive Rights. The Series B Convertible Preferred
-----------------
Stock is not entitled to any preemptive or subscription rights in
respect of any securities of the Corporation.
(10) Severability of Provisions. Whenever possible, each
--------------------------
provision hereof shall be interpreted in a manner as to be effective
and valid under applicable law, but if any provision hereof is held to
be prohibited by or invalid under applicable law, such provision shall
be ineffective only to the extent of such prohibition or invalidity,
without invalidating or otherwise adversely affecting the remaining
provisions hereof. If a court of competent jurisdiction should
determine that a provision hereof would be valid or enforceable if a
period of time were extended or shortened or a particular percentage
were increased or decreased, then such court may make such change as
shall be necessary to render the provision in question effective and
valid under applicable law.
-16-<PAGE>
"FURTHER RESOLVED, that each officer of the Corporation
hereby is authorized, in the name and on behalf of the Corporation, to
prepare, execute, seal and file, or cause to be prepared, executed,
sealed and filed, the Certificate of Designations relating to the
Series B Convertible Preferred Stock in accordance with the Delaware
General Corporation Law and to take any and all such action with
respect thereto that such officer of the Corporation shall deem
necessary or advisable; and
"FURTHER RESOLVED, that each officer of the Corporation
hereby is authorized, in the name and on behalf of the Corporation, to
execute and deliver, or cause to be made, executed and delivered, all
such officers' certificates and such other agreements, undertakings,
documents or instruments and to perform such other acts as such
officer may deem necessary or appropriate in order to effectuate the
purpose and intent of these resolutions;
IN WITNESS WHEREOF, the Corporation has caused this
Certificate to be executed in its name by Mark A. Lettes, its Vice
President, and attested by its Secretary, this 2nd day of June, 1995.
NEW AGI CORPORATION
By: /s/ Mark A. Lettes
--------------------------------
Mark A. Lettes
Vice President
Attest:
By: /s/ Deborah J. Friedman
----------------------------
Deborah J. Friedman
Secretary
-17-
CERTIFICATE OF DESIGNATIONS
$2.25 SERIES C CONVERTIBLE PREFERRED STOCK
OF
NEW AGI CORPORATION
PAR VALUE $1.00 PER SHARE
LIQUIDATION VALUE $50 PER SHARE
PURSUANT TO SECTION 151 OF THE GENERAL
CORPORATION LAW OF THE STATE OF DELAWARE
The undersigned duly authorized officer of New AGI Corporation, a
corporation organized and existing under the laws of the State of
Delaware (the "Corporation"), in accordance with the provisions of
Section 103 of the General Corporation Law of the State of Delaware
(the "DGCL"), and pursuant to Section 151 thereof, hereby certifies as
follows:
FIRST: The Certificate of Incorporation, as amended, of the
Corporation authorizes the issuance of up to 210,000,000 shares of
capital stock, of which 200,000,000 shares shall be shares of common
stock, par value $.01 per share ("Common Stock"); and 10,000,000
shares shall be shares of preferred stock, par value $1.00 per share
("Preferred Stock").
SECOND: The Certificate of Incorporation, as amended, of the
Corporation, authorizes the Board of Directors of the Corporation to
provide for the issuance of Preferred Stock in one or more series,
with such designation, powers, preferences and relative,
participating, optional or other special rights, and qualifications,
limitations or restrictions thereof, as shall be stated and expressed
in the resolution or resolutions providing for the issue of such
series adopted by the Board of Directors of the Corporation, subject
to the limitations prescribed by law and except as otherwise provided
in the Certificate of Incorporation or any amendment thereto.
THIRD: Pursuant to authority conferred upon the Board of
Directors of the Corporation by the Certificate of Incorporation, as
amended, of the Corporation under the provisions of Section 151 of the
DGCL, the Board of Directors of the Corporation, at a meeting duly
held on April 26, 1995, adopted the following resolutions providing
for an issue of a series of the Corporation's Preferred Stock, which
resolutions are still in full force and effect and are not in conflict
with any provision of the Certificate of Incorporation, as amended, or
the By-Laws of the Corporation:
"RESOLVED, that pursuant to the authority vested in the Board of
Directors of the Corporation by Section 151 of the DGCL and the
provisions of its Certificate of
<PAGE>
Incorporation, as amended, an issue of a series of the Preferred
Stock, par value $1.00 per share, of the Corporation is hereby
created, consisting of 1,600,000 shares, with the designations,
powers, preferences and relative, participating, optional or other
special rights, and qualifications, limitations or restrictions
thereof, of the shares of such series as follows:
(1) Designation, Number of Shares and Rank. The designation of
such series shall be "$2.25 Series C Convertible Preferred Stock"
(hereinafter referred to as the "Convertible Preferred Stock"). Each
share of Convertible Preferred Stock shall be identical in all
respects with the other shares of Convertible Preferred Stock.
All shares of Convertible Preferred Stock shall rank prior, both
as to payment of dividends and as to distributions of assets upon
liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, to all of the Corporation's now or hereafter
issued Common Stock.
The number of shares of Convertible Preferred Stock shall
initially be 1,600,000, which number may from time to time be
increased or decreased (but not below the number then outstanding) by
further resolution of the Board of Directors of the Corporation or any
duly authorized committee thereof and by the filing of a certificate
pursuant to the provisions of Section 151 of the DGCL stating that
such increase or reduction has been so authorized. Shares of
Convertible Preferred Stock redeemed, purchased by the Corporation or
converted into Common Stock shall be cancelled and shall revert to
authorized but unissued shares of Preferred Stock undesignated as to
series.
(2) Dividends. The holders of shares of Convertible Preferred
Stock shall be entitled to receive, when, as and if declared by the
Board of Directors of the Corporation, but only out of funds legally
available therefor, dividends at the annual rate of $2.25 per share,
and no more, which shall be fully cumulative, shall accrue without
interest from the date of first issuance and shall be payable in cash
in equal semi-annual installments on the 1st day of January and July
of each year, commencing on July 1, 1995 (except that if any such date
is not a business day, then such dividend shall be payable on the next
succeeding business day) (each, a "Dividend Payment Date"), to
stockholders of record as they appear on the stock transfer books of
the Corporation on such record dates, not more than 60 nor less than
10 days preceding such Dividend Payment Date, as are fixed by the
Board of Directors of the Corporation. For the purposes hereof, the
term "business day" shall mean each Monday, Tuesday, Wednesday,
Thursday or Friday which is not a day on which banking institutions
are authorized or obligated by law or executive order to close in New
York, New York or in Denver, Colorado. Subject to the next paragraph
of this Section 2, dividends on account of arrears for any past
dividend periods may be declared and paid at any time, without
reference to any Dividend Payment Date, to holders of record on such
date, not exceeding 45 days preceding the payment date thereof, as may
be fixed by the Board of Directors of the Corporation. The amount of
dividends payable per share of Convertible Preferred Stock for each
semi-annual dividend period shall be computed by dividing the annual
amount by two. The amount of dividends payable on the Convertible
Preferred Stock for the initial dividend period and for any period
less than a full semi-annual dividend period shall be computed on the
basis of a 360 day year consisting of twelve 30-day months. Holders of
shares of
-2-<PAGE>
Convertible Preferred Stock shall not be entitled to any dividend
whether payable in cash, property or stock, in excess of the full
cumulative dividends on such shares of Convertible Preferred Stock.
On each Dividend Payment Date all dividends which shall have
accrued on each share of Convertible Preferred Stock outstanding on
such Dividend Payment Date shall accumulate and be deemed to become
"due" whether or not declared and whether or not there shall be funds
legally available for the payment thereof. Any dividend which shall
not be paid on the Dividend Payment Date on which it shall become due
shall be deemed to be "past due" until such dividend shall be paid or
until the share of Convertible Preferred Stock with respect to which
such dividend became due shall no longer be outstanding, whichever is
the earlier to occur. No interest or sum of money or other property or
securities in lieu of interest shall be payable in respect of any
dividend payment or payments which are past due. Dividends paid on
shares of Convertible Preferred Stock in an amount less than the total
amount of such dividends at the time accumulated 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 Corporation may, at its option exercised by written notice by
first class mail, postage prepaid, to each holder of record of the
Convertible Preferred Stock given at least 10 business days prior to
the applicable Dividend Payment Date, elect to pay any dividend due
and payable hereunder in shares of Common Stock in lieu of a dividend
payment in cash; provided, however, that the Corporation may not pay
any such dividend in shares of Common Stock in lieu of cash to any
holder of record of the Convertible Preferred Stock that delivers
written notice to the Corporation no more than 5 business days prior
to the applicable Dividend Payment Date stating that such holder
elects to receive such dividend payment in cash. The number of shares
of Common Stock issuable to each holder of Convertible Preferred Stock
pursuant to this paragraph on each such Dividend Payment Date shall
equal the amount of dividends payable per share of Convertible
Preferred Stock on such Dividend Payment Date divided by the average
Closing Price per share of the Common Stock as calculated for the last
10 trading days (the "Trading Period") ending on the fifth trading day
prior to the date that such dividend is declared multiplied by the
total number of shares of Convertible Preferred Stock registered in
the name of each such holder of the Convertible Preferred Stock on the
record date for the payment of the dividend. As used herein, the term
"Closing Price" for any day in question shall be the last reported
sale price regular way or, in case no such reported sales take place
on such day, the average of the closing bid and asked prices regular
way for such day, in each case on the New York Stock Exchange
Composite Tape or, if not listed on the New York Stock Exchange, on
the principal national securities exchange on which the shares of
Common Stock are listed or admitted to trading or, if not listed or
admitted to trading on a national securities exchange, the last sale
price regular way for the Common Stock as published by the National
Association of Securities Dealers Automated Quotation System
("NASDAQ"), or if such last sale price is not so published by NASDAQ
or if no such sale takes place on such day, the average between the
closing bid and asked prices for the Common Stock as published by
NASDAQ. The term "trading day" shall mean a day on which the market
used for calculating the Closing Price is open for the transaction of
business or, if the shares of such security are not so listed or
admitted to trading, a business day. No fractional shares or
-3-<PAGE>
scrip representing fractions of shares of Common Stock shall be issued
in respect of the payment of any dividend in shares of Common Stock.
In lieu of any fractional interest in a share of Common Stock which
otherwise would be deliverable in respect of the payment of any
dividend in shares of Common Stock, the Corporation shall pay to the
holder of such shares an amount in cash (computed to the nearest cent)
equal to the average Closing Price per share of the Common Stock as
calculated for the Trading Period ending on the fifth trading day
prior to the date that such dividend is declared multiplied by the
fractional interest that otherwise would have been deliverable in
respect of the payment of such dividend in shares of Common Stock.
No dividends or other distributions, other than dividends payable
solely in shares of Common Stock, shall be paid, or declared and set
apart for payment in respect of, and no purchase, redemption or other
acquisition for any consideration shall be made by the Corporation of
and no sinking fund or other analogous fund payments shall be made in
respect of any shares of Common Stock or other capital stock of the
Corporation ranking junior as to dividends or as to liquidation rights
to the Convertible Preferred Stock (the "Junior Dividend Stock")
unless and until all accrued and unpaid dividends on the Convertible
Preferred Stock, including the full dividend for the then current
dividend period, shall have been paid or declared and set apart for
payment and the Corporation is not in default in respect of the
optional redemption of any shares of Convertible Preferred Stock.
No dividends or other distributions shall be paid or declared and
set apart for payment and no purchase, redemption or other acquisition
for any consideration shall be made by the Corporation of, and no
sinking fund or other analogous fund payments shall be made in respect
of, any class or series of the Corporation's capital stock ranking, as
to dividends, on a parity with the Convertible Preferred Stock (the
"Parity Dividend Stock") for any period unless full cumulative
dividends have been, or contemporaneously are, paid or declared and
set apart for such payment on the Convertible Preferred Stock for all
dividend payment periods terminating on or prior to the date of
payment of such full cumulative dividends. No dividends shall be paid
or declared and set apart for payment on the Convertible Preferred
Stock for any period unless full cumulative dividends have been, or
contemporaneously are, paid or declared and set apart for payment on
the Parity Dividend 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 upon the Convertible Preferred Stock
and the Parity Dividend Stock, all dividends paid or declared and set
apart for payment upon shares of Convertible Preferred Stock and the
Parity Dividend Stock shall be paid or declared and set apart for
payment pro rata so that the amount of dividends paid or declared and
set apart for payment per share on the Convertible Preferred Stock and
the Parity Dividend Stock shall in all cases bear to each other the
same ratio that accrued and unpaid dividends per share on the shares
of Convertible Preferred Stock and the Parity Dividend Stock bear to
each other.
The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any
shares of stock of the Corporation or any Parity Dividend Stock unless
the Corporation could, under this Section 2, purchase or otherwise
acquire such shares at such time and in such manner.
-4-<PAGE>
Any reference to "distribution" contained in this Section 2 shall
not be deemed to include any distribution made in connection with any
liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary.
(3) Liquidation Preference. In the event of any liquidation,
dissolution or winding up of the Corporation, whether voluntary or
involuntary, the holders of shares of Convertible Preferred Stock
shall be entitled to receive out of the assets of the Corporation,
whether such assets are stated capital or surplus of any nature, an
amount equal to the dividends accrued and unpaid thereon to the date
of final distribution to such holders, whether or not declared,
without interest, and a sum equal to $50.00 per share, and no more,
before any payment shall be made or any assets distributed to the
holders of Common Stock or any other class or series of the
Corporation's capital stock ranking junior as to liquidation rights to
the Convertible Preferred Stock (the "Junior Liquidation Stock"). In
the event the assets of the Corporation available for distribution to
stockholders upon any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, shall be insufficient
to pay in full the amounts payable with respect to the Convertible
Preferred Stock and any other class or series of the Corporation's
capital stock which may hereafter be created ranking on a parity as to
liquidation rights with the Convertible Preferred Stock (the "Parity
Liquidation Stock"), the holders of the Convertible Preferred Stock
and the holders of the Parity Liquidation Stock shall share ratably in
any distribution of assets of the Corporation in proportion to the
full respective preferential amounts to which they are entitled (but
only to the extent of such preferential amounts). After payment in
full of the liquidation preferences of the shares of Convertible
Preferred Stock, the holders of such shares shall not be entitled to
any further participation in any distribution of assets by the
Corporation. Neither a consolidation, merger or other business
combination of the Corporation with or into another corporation or
other entity nor a sale or transfer of all or part of the
Corporation's assets for cash, securities or other property shall be
considered a liquidation, dissolution or winding up of the Corporation
for purposes of this Section 3 (unless in connection therewith the
liquidation of the Corporation is specifically approved).
The holder of any shares of Convertible Preferred Stock shall not
be entitled to receive any payment owed for such shares under this
Section 3 until such holder shall cause to be delivered to the
Corporation (i) the certificate(s) representing such shares of
Convertible Preferred Stock and (ii) transfer instrument(s)
satisfactory to the Corporation and sufficient to transfer such shares
of Convertible Preferred Stock to the Corporation free of any liens or
encumbrances thereon or rights of third parties thereto. As in the
case of the Redemption Price referred to below, no interest shall
accrue on any payment upon liquidation after the due date thereof.
(4) Redemption at the Option of the Corporation.
(a) Right of Redemption. Subject to and upon compliance with the
provisions of this Section 4, the Corporation, at its option, may at
any time redeem the Convertible Preferred Stock, in whole or from time
to time in part, on any date set by the Board of Directors of the
Corporation, for that number of fully paid and non-assessable shares
of Common Stock (calculated as to each redemption to the nearest
1/100th of a share) obtained by dividing
-5-<PAGE>
$50.00 by the lesser of the Call Price (as defined in paragraph (e))
and the Conversion Price (as defined in Section 5(d)), as the same may
be in effect at such time, plus accrued and unpaid dividends, whether
or not declared or due, to the date fixed for redemption (such shares
of Common Stock and dividends, together with any cash in lieu of
Common Stock pursuant to paragraph (d), being hereinafter referred to
herein as the "Redemption Price"), subject to the right of the holder
of record of shares of Convertible Preferred Stock on a record date
for the payment of a dividend on the Convertible Preferred Stock to
receive the dividend due on such shares of Convertible Preferred Stock
on the corresponding Dividend Payment Date.
In case of the redemption of less than all of the then
outstanding Convertible Preferred Stock, the shares of Convertible
Preferred Stock to be redeemed shall be redeemed pro rata or by lot or
in such other equitable manner as the Board of Directors of the
Corporation reasonably may determine. Notwithstanding the foregoing,
the Corporation shall not redeem less than all of the Convertible
Preferred Stock at any time outstanding until all dividends accrued
and in arrears upon all Convertible Preferred Stock and Parity
Dividend Stock then outstanding shall have been paid for all past
dividend periods.
(b) Manner of Exercise of Redemption Option. In order to exercise
its redemption option, the Corporation must give written notice in
person or by first class mail, postage prepaid, of such redemption to
each holder of record of the shares of Convertible Preferred Stock to
be redeemed, at such holder's address as it shall appear upon the
stock transfer books of the Corporation not more than 60 days nor less
than 30 days prior to the redemption date. Each such notice of
redemption shall state, as appropriate: (1) the date fixed for
redemption; (2) the number of shares of Convertible Preferred Stock to
be redeemed and, if fewer than all of the shares held by such holder
are to be redeemed, the number of such shares to be redeemed from such
holder; (3) the Redemption Price per share of Convertible Preferred
Stock; (4) the place or places of payment that payment of the
Redemption Price will be made upon presentation and surrender of the
certificate or certificates evidencing the shares of Convertible
Preferred Stock to be redeemed; (5) that on and after the redemption
date, dividends will cease to accrue on such shares; and (6) the then
effective Conversion Price pursuant to Section 5 and that the right of
holders to convert shall terminate at the close of business on the
redemption date (unless the Corporation defaults in the payment of the
Redemption Price).
Any notice that is delivered or mailed as herein provided shall
be conclusively presumed to have been duly given, whether or not the
holder of the Convertible Preferred Stock receives such notice; and
failure to give such notice, or any defect in such notice, to the
holders of any shares designated for redemption shall not affect the
validity of the proceedings for the redemption of any other shares of
Convertible Preferred Stock. On or after the date fixed for redemption
as stated in such notice, each holder of the shares of Convertible
Preferred Stock called for redemption shall surrender the certificate
or certificates evidencing such shares to the Corporation at the place
designated in such notice and shall thereupon be entitled to receive
payment of the Redemption Price as herein provided. If less than all
the shares represented by any such surrendered certificate are
redeemed, a new certificate shall be issued representing the
unredeemed shares. If, on the
-6-<PAGE>
date fixed for redemption, shares of Common Stock and cash necessary
for the redemption shall be available for such purpose and
irrecoverably shall have been deposited or set apart, then,
notwithstanding that the certificates evidencing any shares so called
for redemption shall not have been surrendered, the dividends with
respect to the shares so called shall cease to accrue after the date
fixed for redemption, the shares no longer shall be deemed
outstanding, the holders thereof shall cease to be holders of
Convertible Preferred Stock, and all rights whatsoever with respect to
the shares so called for redemption (except the right of the holders
to receive payment of the Redemption Price as herein provided, without
interest, upon surrender of their certificates therefor) shall
terminate. Shares of Common Stock and any cash necessary for the
redemption of shares of Convertible Preferred Stock shall be deemed to
be available therefor for purposes of the preceding sentence and for
purposes of Section 7, on or before the date fixed for redemption, the
Company shall deposit with a bank or trust company that has an office
in the Borough of Manhattan, City of New York, and that has, or is an
affiliate of a bank that has, a capital surplus of at least
$50,000,000, shares of Common Stock and any cash necessary for such
redemption, in trust, with irrevocable instructions that such shares
of Common Stock and cash be applied to the redemption of the shares of
the Convertible Preferred Stock and any Parity Dividend Stock so
called for redemption. At the close of business on the redemption
date, each holder of shares of Convertible Preferred Stock to be
redeemed (unless the Corporation defaults in the delivery of the
shares of Common Stock or cash payable on such redemption date) shall
be deemed to be the record holder of the number of shares of Common
Stock into which such shares of Convertible Preferred Stock are to be
redeemed, regardless of whether such holder has surrendered the
certificates representing such shares of Convertible Preferred Stock.
No interest shall accrue for the benefit of the holders of shares of
Convertible Preferred Stock to be redeemed on any cash so set apart by
the Corporation. Subject to applicable escheat laws, any such cash
unclaimed at the end of six years from the redemption date shall
revert to the general funds of the Corporation, after which reversion
the holders of such shares so called for redemption shall look only to
the general funds of the Corporation for the payment of such cash.
The holder of any shares of Convertible Preferred Stock redeemed
upon any exercise of the Corporation's redemption right shall not be
entitled to receive payment of the Redemption Price for such shares
until such holder shall cause to be delivered to the place specified
in the notice given with respect to such redemption (i) the
certificate or certificates representing such shares of Convertible
Preferred Stock redeemed and (ii) transfer instruments satisfactory to
the Corporation and sufficient to transfer such shares of Convertible
Preferred Stock to the Corporation free of any adverse interest. No
interest shall accrue on the Redemption Price of any share of
Convertible Preferred Stock after its redemption date.
In the event that any shares of Convertible Preferred Stock shall
be converted into Common Stock pursuant to Section 5, then (i) the
Corporation shall not have the right to redeem such shares and (ii)
any funds which shall have been deposited for the payment of the
Redemption Price for such shares of Convertible Preferred Stock shall
be returned to the Corporation immediately after such conversion
(subject to declared dividends payable to holders of shares of
Convertible Preferred Stock on the record date for such dividends, to
the
-7-<PAGE>
extent set forth in Section 5 hereof, regardless whether such shares
are converted subsequent to such record date and prior to the related
Dividend Payment Date).
(c) Cash Payments in Lieu of Fractional Shares. No fractional
shares or scrip representing fractions of shares of Common Stock shall
be issued upon redemption of Convertible Preferred Stock. If more than
one share of Convertible Preferred Stock shall be surrendered for
redemption at one time by the same holder, the number of full shares
of Common Stock issuable upon redemption thereof shall be computed on
the basis of the aggregate of $50.00 for each such share so
surrendered. In lieu of any fractional interest in a share of Common
Stock which otherwise would be deliverable upon the redemption of any
share of Convertible Preferred Stock, the Corporation shall pay to the
holder of such shares an amount in cash (computed to the nearest cent)
equal to the lesser of the Call Price and the Conversion Price, as the
same may be in effect at such time, multiplied by the fractional
interest in a share of Common Stock that otherwise would have been
deliverable upon conversion of such share.
(d) Limitation on Number of Shares Issuable Upon Redemption. The
maximum number of shares of Common Stock that the Corporation may
issue upon redemption of the Convertible Preferred Stock shall be
14,919,806 shares, as such amount shall be increased or decreased from
time to time by the Board of Directors of the Corporation in
connection with any adjustment to the Conversion Price pursuant to
Section 5(d) and as such amount further may be reduced in accordance
with this paragraph. In the case of the redemption of shares of
Convertible Preferred Stock that would result in the issuance of
shares of Common Stock that, when added to the number of shares of
Common Stock issued (i) in connection with the redemption of any
shares of Convertible Preferred Stock previously redeemed in
accordance with this Section 4, (ii) in connection with the conversion
of any shares Convertible Preferred Stock previously converted in
accordance with Section 5, and (iii) as a dividend on the shares of
Convertible Preferred Stock previously paid pursuant to Section 2,
would be greater than 14,919,806 shares, the Corporation shall pay an
amount of cash in lieu of such shares of Common Stock in excess of
14,919,806 shares equal to the lesser of the Call Price and the
Conversion Price, as the same may be in effect at such time,
multiplied by the number of shares of Common Stock in excess of
14,919,806 shares that otherwise would have been issuable but for this
paragraph. The shares of Convertible Preferred Stock that shall be
redeemed for cash in lieu of Common Stock pursuant to this paragraph
shall be selected pro rata or by lot or in such other equitable manner
as the Board of Directors of the Corporation reasonably may determine.
Each such cash payment shall be made in twelve consecutive
substantially equal quarterly payments, commencing on the last
business day of the calendar quarter immediately subsequent to the
applicable redemption date.
(e) Call Price. The "Call Price" with respect to a redemption of
Convertible Preferred Stock pursuant to this Section 4 shall be equal
to the greater of (i) $4.196, as such amount shall be adjusted from
time to time by the Board of Directors of the Corporation in
connection with any adjustment to the Conversion Price pursuant to
Section 5(d) by applying the Conversion Price adjustment formula set
forth in such Section 5(d) to the Call Price, and (ii) the average
Closing Price per share of the Common Stock as calculated for the
Trading
-8-<PAGE>
Period ending on the fifth trading day prior to the date that the
notice of redemption with respect to such redemption is mailed
pursuant to paragraph (b).
(f) Covenant as to Common Stock. The Corporation covenants that
all shares of Common Stock which may be delivered upon redemption of
shares of Convertible Preferred Stock will upon delivery be duly and
validly issued and fully paid and nonassessable, free of all liens and
charges and not subject to any preemptive rights.
If permitted by the rules of the New York Stock Exchange, the
Corporation will list and keep listed so long as the Common Stock
shall be so listed on such exchange, all shares of Common Stock
issuable upon redemption of the shares of Convertible Preferred Stock.
(5) Conversion.
(a) Right of Conversion. Subject to and upon compliance with the
provisions of this Section 5, each share of Convertible Preferred
Stock shall, at the option of the holder thereof, be convertible at
any time (unless such share is called for redemption, then to and
including but not after 5:00 p.m. (New York City time) on the business
day immediately prior to the date fixed for such redemption, unless
the Corporation shall default in payment due upon redemption thereof),
into that number of fully paid and non-assessable shares of Common
Stock (calculated as to each conversion to the nearest 1/100th of a
share) obtained by dividing $50.00 by the Conversion Price (as defined
in Section 5(d)) in effect at such time and by surrender of such share
so to be converted in the manner provided in Section 5(b).
(b) Manner of Exercise of Conversion Privilege. In order to
exercise the conversion privilege, the holder of one or more shares of
Convertible Preferred Stock to be converted shall surrender such
shares at any of the offices or agencies to be maintained for such
purpose by the Corporation accompanied by the funds, if any, required
by the last paragraph of this Section 5(b) and shall give written
notice of conversion in the form provided on such shares of
Convertible Preferred Stock (or such other notice as is reasonably
acceptable to the Corporation) to the Corporation at such office or
agency that the holder elects to convert the shares of Convertible
Preferred Stock specified in said notice. Such notice shall also state
the name or names, together with address or addresses, in which the
certificate or certificates for shares of Common Stock which shall be
issuable on such conversion shall be issued. Each share of Convertible
Preferred Stock surrendered for conversion, unless the shares issuable
on conversion are to be issued in the same name as the name in which
such share of Convertible Preferred Stock is registered, shall be
accompanied by instruments of transfer, in form satisfactory to the
Corporation, duly executed by the holder or such holder's duly
authorized attorney and an amount sufficient to pay any transfer or
similar tax. As promptly as practicable after the surrender of such
shares of Convertible Preferred Stock and the receipt of such notice,
instruments of transfer and funds, if any, as aforesaid, the
Corporation shall issue and shall deliver at such office or agency to
such holder, or on his written order, a certificate or certificates
for the number of full shares of Common Stock issuable upon the
conversion of such shares of Convertible Preferred Stock in accordance
with the provisions of this Section 5 and a check or cash in respect
of any fractional interest in a share of Common Stock arising upon
such conversion, as provided in Section 5(c).
-9-<PAGE>
Each conversion shall be deemed to have been effected immediately
prior to the close of business on the business day following the date
on which such shares of Convertible Preferred Stock shall have been
surrendered and such notice (and any applicable instruments of
transfer and any required taxes) received by the Corporation as
aforesaid, and the person or persons in whose name or names any
certificate or certificates for shares of Common Stock shall be
issuable upon such conversion shall be deemed to have become the
holder or holders of record of the shares represented thereby at such
time on such date, and such conversion shall be at the Conversion
Price in effect at such time on such date, unless the stock transfer
books of the Corporation shall be closed on that date, in which event
such person or persons shall be deemed to have become such holder or
holders of record at the close of business on the next succeeding day
on which such stock transfer books are open, but such conversion shall
be at the Conversion Price in effect on the twentieth business day
following the date upon which such shares of Convertible Preferred
Stock shall have been surrendered and such notice received by the
Corporation.
Any shares of Convertible Preferred Stock surrendered for
conversion during the period from the close of business on the record
date for any dividend payment to the opening of business on the
related Dividend Payment Date (unless such shares of Convertible
Preferred Stock shall have been called for redemption on a date in
such period) shall be accompanied by payment, in funds acceptable to
the Corporation, of an amount equal to the dividend otherwise payable
on such Dividend Payment Date; provided, however, that no such payment
need be made if there shall exist at the time of conversion a default
in the payment of dividends on the shares of Convertible Preferred
Stock. An amount of cash equal to such payment shall be paid by the
Corporation on such Dividend Payment Date to the holder of such shares
of Convertible Preferred Stock at the close of business on such record
date, notwithstanding any election by the Corporation to pay such
dividend in Common Stock in lieu of cash and notwithstanding the
conversion of such shares of Convertible Preferred Stock; provided,
however, that if the Corporation shall default in the payment of
dividends on such Dividend Payment Date, such amount shall be paid to
the person who made such required payment. Except as provided for
above in this Section, no adjustment shall be made for dividends
accrued on any shares of Convertible Preferred Stock converted or for
dividends on any shares issued upon the conversion of such shares as
provided in this Section.
(c) Cash Payments in Lieu of Fractional Shares. No fractional
shares or scrip representing fractions of shares of Common Stock shall
be issued upon conversion of Convertible Preferred Stock. If more than
one share of Convertible Preferred Stock shall be surrendered for
conversion at one time by the same holder, the number of full shares
of Common Stock issuable upon conversion thereof shall be computed on
the basis of the aggregate of $50.00 for each such share so
surrendered. In lieu of any fractional interest in a share of Common
Stock which would otherwise be deliverable upon the conversion of any
share of Convertible Preferred Stock, the Corporation shall pay to the
holder of such shares an amount in cash (computed to the nearest cent)
equal to the average Closing Price per share of Common Stock as
calculated for the Trading Period ending on the fifth trading day
prior to the day of conversion multiplied by the fractional interest
in a share of Common Stock that otherwise would have been deliverable
upon conversion of such share.
-10-<PAGE>
(d) Adjustment of Conversion Price. The "Conversion Price" shall
mean and be $5.362, subject to adjustment from time to time by the
Corporation as follows:
(i) In case the Corporation shall (A) pay a dividend or make
a distribution on its Common Stock in shares of Common Stock
(other than pursuant to a dividend reinvestment or similar plan),
(B) subdivide its outstanding shares of Common Stock into a
greater number of shares, (C) combine its outstanding shares of
Common Stock into a smaller number of shares, or (D) issue by
reclassification of its Common Stock any shares of capital stock
of the Corporation, then in each such case the Conversion Price
in effect immediately prior to such action shall be adjusted so
that the holder of any share of Convertible Preferred Stock
thereafter surrendered for conversion shall be entitled to
receive the number of shares of Common Stock or other capital
stock of the Corporation which he would have owned or been
entitled to receive immediately following such action had such
share been converted immediately prior to the occurrence of such
event. An adjustment made pursuant to this subsection (i) shall
become effective immediately after the record date, in the case
of a dividend or distribution, or immediately after the effective
date, in the case of a subdivision, combination or
reclassification. If, as a result of an adjustment made pursuant
to this subsection (i), the holder of any share of Convertible
Preferred Stock thereafter surrendered for conversion shall
become entitled to receive shares of two or more classes of
capital stock or shares of Common Stock and other capital stock
of the Corporation, the Audit Committee of the Board of Directors
of the Corporation (whose reasonable determination shall be
conclusive, except for arithmetic errors, and shall be described
in a statement filed by the Corporation with the stock transfer
or conversion agent, as appropriate) shall determine the
equitable allocation of the adjusted Conversion Price between or
among shares of such classes of capital stock or shares of Common
Stock and other capital stock.
(ii) In case the Corporation shall issue rights, options or
warrants to all holders of its outstanding shares of Common Stock
entitling them to subscribe for or purchase shares of Common
Stock at a price per share less than the current market price per
share (as determined pursuant to subsection (iv) of this Section
5(d)) of the Common Stock (other than pursuant to any stock
option, restricted stock or other incentive or benefit plan or
stock ownership or purchase plan for the benefit of employees,
directors or officers or any dividend reinvestment plan of the
Corporation in effect at the time hereof or any other similar
plan adopted or implemented hereafter), then with respect to any
conversion prior to the expiration of such rights, options or
warrants, the Conversion Price in effect immediately prior
thereto shall be adjusted so that it shall equal the price
determined by multiplying the Conversion Price in effect
immediately prior to the date of issuance of such rights, options
or warrants by a fraction of which the numerator shall be the
number of shares of Common Stock outstanding on the date of
issuance of such rights, options or warrants (immediately prior
to such issuance) plus the number of shares which the aggregate
offering price of the total number of shares so offered would
purchase at such current market price, and of which the
denominator shall be the number of shares of Common Stock
outstanding on the date of issuance of such rights, options or
warrants (immediately prior to such issuance) plus
-11-<PAGE>
the number of additional shares of Common Stock offered for
subscription or purchase. Such adjustment shall be made
successively whenever any rights, options or warrants are issued,
and shall become effective immediately after the record date for
the determination of stockholders entitled to receive such
rights, options or warrants; provided, however, in the event that
all the shares of Common Stock offered for subscription or
purchase are not delivered upon the exercise of such rights,
options or warrants, upon the expiration of such rights, options
or warrants the Conversion Price shall be readjusted to the
Conversion Price which would have been in effect had the
numerator and the denominator of the foregoing fraction and the
resulting adjustment been made based upon the number of shares of
Common Stock actually delivered upon the exercise of such rights,
options or warrants rather than upon the number of shares of
Common Stock offered for subscription or purchase. In determining
whether any rights, options or warrants entitle the holders to
subscribe for or purchase shares of Common Stock at less than
such current market price, and in determining the aggregate
offering price of such shares of Common Stock, there shall be
taken into account any consideration received by the Corporation
for such rights, options or warrants, the value of such
consideration, if other than cash, to be determined by the Audit
Committee of the Board of Directors of the Corporation (whose
reasonable determination shall be conclusive, except for
arithmetic errors, and shall be described in a statement filed by
the Corporation with the stock transfer or conversion agent, as
appropriate).
(iii) In case the Corporation shall, by dividend or
otherwise, distribute to all holders of its outstanding Common
Stock, evidences of its indebtedness or assets (including
securities and cash, but excluding any cash dividend of the
Corporation paid out of retained earnings and dividends or
distributions payable in stock pursuant to a dividend
reinvestment or similar plan or for which adjustment is made
pursuant to subsection (i) of this Section 5(d)) or rights,
options or warrants to subscribe for or purchase securities of
the Corporation (excluding those referred to in subsection (ii)
of this Section 5(d)), then in each such case 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 record date of such distribution by a
fraction of which the numerator shall be the current market price
per share of the Common Stock as determined pursuant to
subsection (iv) of this Section 5(d) less the fair market value
on such record date (as determined by the Audit Committee of the
Board of Directors of the Corporation, whose reasonable
determination shall be conclusive, except for arithmetic errors,
and shall be described in a statement filed by the Corporation
with the stock transfer or conversion agent, as appropriate) of
the portion of the capital stock or assets or the evidences of
indebtedness or assets so distributed to the holder of one share
of Common Stock or of such subscription rights, options or
warrants applicable to one share of Common Stock, and of which
the denominator shall be such current market price per share of
Common Stock. Such adjustment shall become effective immediately
after the record date for the determination of stockholders
entitled to receive such distribution.
-12-<PAGE>
(iv) For the purpose of any computation under subsections
(ii) and (iii) of this Section 5(d), the current market price per
share of Common Stock on any date shall be deemed to be the
average of the Closing Price for the shorter of (A) 30
consecutive trading days ending on the last full trading day
prior to the Time of Determination or (B) the period commencing
on the date next succeeding the first public announcement of the
issuance of such rights, options or warrants or such distribution
through such last full trading day prior to the Time of
Determination. For purposes of the foregoing, the term "Time of
Determination" shall mean the time and date of the earlier of (I)
the record date for determining stockholders entitled to receive
the rights, options, warrants or distributions referred to in
Section 5(d) (ii) and (iii) or (II) the commencement of
"ex-dividend" trading on the exchange or market referred to in
the definition of "Closing Price" in Section 3.
(v) In any case in which this Section 5(d) shall require
that an adjustment be made immediately following a record date or
an effective date, the Corporation may elect to defer (but only
until the filing by the Corporation with the stock transfer or
conversion agent, as the case may be, of the certificate required
by subsection (vii) of this Section 5(d)) issuing to the holder
of any share of Convertible Preferred Stock converted after such
record date or effective date the shares of Common Stock issuable
upon such conversion over and above the shares of Common Stock
issuable upon such conversion on the basis of the Conversion
Price prior to adjustment, and paying to such holder any amount
of cash in lieu of a fractional share.
(vi) No adjustment in the Conversion Price shall be required
to be made unless such adjustment would require an increase or
decrease of at least 1% of such price; provided, however, that
any adjustments which by reason of this subsection (vi) are not
required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under this
Section 5(d) shall be made to the nearest cent or to the nearest
1/100th of a share, as the case may be. Anything in this Section
5(d) to the contrary notwithstanding, the Corporation shall be
entitled to make such reduction in the Conversion Price, in
addition to those required by this Section 5(d), as it in its
discretion shall determine to be advisable in order that any
stock dividend, subdivision of shares, distribution of rights to
purchase stock or securities, or distribution of securities
convertible into or exchangeable for stock hereafter made by the
Corporation to its stockholders shall not be taxable to the
recipients. Except as set forth in subsections (i), (ii) and
(iii) above, the Conversion Price shall not be adjusted for any
such event including, without limitation, the issuance of Common
Stock, or any securities convertible into or exchangeable for
Common Stock or carrying the right to purchase any of the
foregoing, in exchange for cash, property or services.
(vii) Whenever the Conversion Price is adjusted as herein
provided, (A) the Corporation promptly shall file with the stock
transfer or conversion agent, as appropriate, a certificate
setting forth the Conversion Price after such adjustment and a
brief statement of the facts requiring such adjustment and the
manner of computing the same, which certificate shall be
conclusive evidence of the correctness of such adjustment, except
for arithmetic errors, and (B) the Corporation also shall deliver
or
-13-<PAGE>
mail, or cause to be delivered or mailed by first class mail,
postage prepaid, as soon as practicable to each holder of record
of shares of Convertible Preferred Stock a notice stating that
the Conversion Price has been adjusted and setting forth the
adjusted Conversion Price. The stock transfer or conversion
agent, as the case may be, shall not be under any duty or
responsibility with respect to the certificate required by this
subsection (vii) except to exhibit the same to any holder of
shares of Convertible Preferred Stock who requests to inspect it.
(viii) In the event that at any time, as a result of an
adjustment made pursuant to subsection (i) of this Section 5(d),
the holder of any share of Convertible Preferred Stock thereafter
surrendered for conversion shall become entitled to receive any
shares of the Corporation other than shares of Common Stock,
thereafter the Conversion Price of such other shares so
receivable upon conversion of any share of Convertible Preferred
Stock shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the
provisions with respect to Common Stock contained in this
Section.
(ix) The Corporation from time to time may decrease the
Conversion Price by any amount for any period of time if the
period is at least 20 days and if the decrease is irrevocable
during the period. Whenever the Conversion Price is so decreased,
the Corporation shall deliver or mail to holders of record of
shares of Convertible Preferred Stock a notice of the decrease at
least 15 days before the date the decreased Conversion Price
takes effect, and such notice shall state the decreased
Conversion Price and the period it will be in effect.
(e) Notice to Holders Prior to Certain Corporate Actions. In
case:
(i) the Corporation shall take any action which would
require an adjustment in the Conversion Price pursuant to Section
5(d)(iii); or
(ii) the Corporation shall authorize the granting to the
holders of its Common Stock generally of rights, options or
warrants to subscribe for or purchase any shares of stock of any
class or of any other rights; or
(iii) there shall be any reorganization or reclassification
of the Common Stock (other than a subdivision or combination of
the outstanding Common Stock and other than a change in the par
value of the Common Stock), or any consolidation or merger to
which the Corporation is a party or any statutory exchange of
securities with another corporation and for which approval of any
stockholders of the Corporation is required, or any sale, lease
or transfer of all or substantially all of the assets of the
Corporation; or
(iv) there shall be a voluntary or involuntary dissolution,
liquidation or winding-up of the Corporation; then in each such
case the Corporation shall cause to be delivered or mailed by
first class mail, postage prepaid, to the holders of shares of
Convertible Preferred Stock and the stock transfer or conversion
agent, as appropriate,
-14-<PAGE>
as promptly as possible, but in any event at least 20 days prior
to the applicable date hereinafter specified, a written notice
stating (i) the date on which a record is to be taken for the
purpose of such action or granting of rights, options or
warrants, or, if a record is not to be taken, the date as of
which the holders of Common Stock of record to be entitled to
such distribution, rights, options or warrants are to be
determined, or (ii) the date on which such reorganization,
reclassification, consolidation, merger, statutory exchange,
sale, lease, transfer, dissolution, liquidation or winding-up is
expected to become effective or occur, and the date as of which
it is expected that holders of Common Stock of record shall be
entitled to exchange their shares of Common Stock for securities,
cash or other property deliverable upon such reorganization,
reclassification, consolidation, merger, statutory exchange,
sale, lease, transfer, dissolution, liquidation or winding-up.
Failure to give such notice or any defect therein shall not
affect the legality or validity or the proceedings described in
subsection (i), (ii), (iii) or (iv) of this Section 5 (e).
(f) Reservation of Shares of Common Stock. The Corporation
covenants that it will, at all times, reserve and keep available, free
from preemptive rights, out of the aggregate of its authorized but
unissued shares of Common Stock for the purpose of effecting
conversions of shares of Convertible Preferred Stock, the full number
of shares of Common Stock deliverable upon the conversion of all
outstanding shares of Convertible Preferred Stock not theretofore
converted and on or before (and as a condition of) taking any action
that would cause an adjustment of the Conversion Price resulting in an
increase in the number of shares of Common Stock deliverable upon
conversion above the number thereof previously reserved and available
therefor, the Corporation shall take all such action so required. For
purposes of this Section 5(f), the number of shares of Common Stock
which shall be deliverable upon the conversion of all outstanding
shares of Convertible Preferred Stock shall be computed as if at the
time of computation all outstanding shares of Convertible Preferred
Stock were held by a single holder.
Before taking any action that would cause an adjustment reducing
the Conversion Price below the then par value (if any) of the shares
of Common Stock deliverable upon conversion of the shares of
Convertible Preferred Stock, the Corporation shall take any corporate
action which may, in the opinion of its counsel, be necessary in order
that the Corporation may validly and legally issue fully paid and
non-assessable shares of Common Stock at such adjusted Conversion
Price.
(g) Transfer Taxes, Etc. The Corporation shall pay any and all
documentary stamp, issue or transfer taxes, and any other similar
taxes payable in respect of the issue or delivery of shares of Common
Stock upon conversion of shares of Convertible Preferred Stock
pursuant hereto; provided, however, that the Corporation shall not be
required to pay any tax that may be payable in respect of any transfer
involved in the issue or delivery of shares of Common Stock in a name
other than that of the holder of the shares of Convertible Preferred
Stock to be converted and no such issue or delivery shall be made
unless and until the person requesting such issue or delivery has paid
to the Corporation the amount of any such tax or has established, to
the satisfaction of the Corporation, that such tax has been paid.
-15-<PAGE>
(h) Consolidation or Merger or Sale of Assets. Notwithstanding
any other provision herein to the contrary, in case of any
consolidation or merger to which the Corporation is a party (other
than a merger or consolidation in which the Corporation is the
continuing corporation and in which the Common Stock outstanding
immediately prior to the merger or consolidation is not exchanged for
cash, or the securities or other property of another corporation), or
in case of any sale, lease or transfer to another corporation of the
property of the Corporation as an entirety or substantially as an
entirety, then lawful provision shall be made by the corporation
formed by such consolidation or the corporation whose securities, cash
or other property immediately after the merger or consolidation will
be owned, by virtue of the merger or consolidation, by the holders of
Common Stock immediately prior to the merger or consolidation, or the
corporation which shall have acquired such assets or securities of the
Corporation (collectively the "Formed, Surviving or Acquiring
Corporation"), as the case may be, providing that the holder of each
share of Convertible Preferred Stock then outstanding shall have the
right thereafter to convert such share into the kind and amount of
securities, cash or other property receivable upon such consolidation,
merger, sale, lease or transfer by a holder of the number of shares of
Common Stock into which such share of Convertible Preferred Stock
might have been converted immediately prior to such consolidation,
merger, sale, lease or transfer assuming such holder of Common Stock
did not exercise his rights of election, if any, as to the kind or
amount of securities, cash or other property receivable upon such
consolidation, merger, sale, lease or transfer (provided that, if the
kind or amount of securities, cash or other property receivable upon
such consolidation, merger, sale, lease or transfer is not the same
for each share of Common Stock in respect of which such rights of
election shall not have been exercised ("non-electing share"), then
for the purposes of this Section 5(h) the kind and amount of
securities, cash or other property receivable upon such consolidation,
merger, sale, lease or transfer for each nonelecting share shall be
deemed to be the kind and amount so receivable per share by a
plurality of the non-electing shares). The Formed, Surviving or
Acquiring Corporation, as the case may be, shall make provision in its
certificate or articles of incorporation or other constituent
documents to the end that the provisions set forth in this Section
5(h) shall thereafter correspondingly be made applicable, as nearly as
may reasonably be, in relation to any shares of stock or other
securities or property thereafter deliverable on the conversion of the
Convertible Preferred Stock.
The above provisions of this Section 5(h) shall similarly apply
to successive consolidations, mergers, sales, leases or transfers.
(i) Covenant as to Common Stock. The Corporation covenants that
all shares of Common Stock which may be delivered upon conversions of
shares of Convertible Preferred Stock will upon delivery be duly and
validly issued and fully paid and nonassessable, free of all liens and
charges and not subject to any preemptive rights.
If permitted by the rules of the New York Stock Exchange, the
Corporation will list and keep listed so long as the Common Stock
shall be so listed on such exchange, all Common Stock issuable upon
conversion of the shares of Convertible Preferred Stock.
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(j) Limitation on Number of Shares Issuable Upon Conversion.
Notwithstanding any other provision of this Section 5 to the contrary,
the maximum number of shares of Common Stock that the Corporation may
issue upon conversion of the Convertible Preferred Stock shall be
14,919,806 shares, as such amount shall be increased or decreased from
time to time by the Audit Committee of the Board of Directors of the
Corporation in connection with any adjustment to the Conversion Price
pursuant to Section 5(d) and as such amount further may be reduced in
accordance with this paragraph. In the case of the conversion of
shares of Convertible Preferred Stock that would result in the
issuance of shares of Common Stock that, when added to the number of
shares of Common Stock issued (i) in connection with the redemption of
any shares of Convertible Preferred Stock previously redeemed in
accordance with Section 4, (ii) in connection with the conversion of
any shares Convertible Preferred Stock previously converted in
accordance with this Section 5, and (iii) as a dividend on the shares
of Convertible Preferred Stock previously paid pursuant to Section 2,
would be greater than 14,919,806 shares, the Corporation shall pay an
amount of cash in lieu of such shares of Common Stock in excess of
14,919,806 shares equal to the Conversion Price, as the same may be in
effect at such time, multiplied by the number of shares of Common
Stock in excess of 14,919,806 shares that would otherwise have been
issuable but for this paragraph. Each such cash payment shall be made
in twelve consecutive substantially equal quarterly payments,
commencing on the last business day of the calendar quarter
immediately subsequent to the date such shares of Convertible
Preferred Stock have been surrendered for conversion.
(6) Voting Rights.
(a) General. The holders of Convertible Preferred Stock shall not
have any voting rights except as set forth below or as otherwise from
time to time required by law. In connection with any right to vote,
each holder of Convertible Preferred Stock will have one vote for each
share held. Any shares of Convertible Preferred Stock held by the
Corporation or any entity controlled by the Corporation shall not have
voting rights hereunder and shall not be counted in determining the
presence of a quorum.
(b) Default Voting Rights. Whenever dividends on the Convertible
Preferred Stock shall be in arrears in an amount equal to at least
three semi-annual dividend payments (whether or not consecutive), (i)
the number of members of the Board of Directors of the Corporation
shall be increased by two, effective as of the time of election of
such directors as hereinafter provided, and (ii) the holders of the
Convertible Preferred Stock (voting separately as a class) will have
the exclusive right to vote for and elect such two additional
directors of the Corporation at any meeting of stockholders of the
Corporation at which directors are to be elected held during the
period such dividends remain in arrears. The right of the holders of
the Convertible Preferred Stock to vote for such two additional
directors shall terminate when all accrued and unpaid dividends on the
Convertible Preferred Stock have been declared and paid or set apart
for payment. The term of office of all directors so elected shall
terminate immediately upon the termination of the right of the holders
of the Convertible Preferred Stock and such Parity Dividend Stock to
vote for such two additional directors.
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The foregoing right of the holders of the Convertible Preferred
Stock with respect to the election of two directors may be exercised
at any annual meeting of stockholders or at any special meeting of
stockholders held for such purpose. If the right to elect directors
shall have accrued to the holders of the Convertible Preferred Stock
more than 90 days preceding the date established for the next annual
meeting of stockholders, the President of the Corporation shall,
within 20 days after the delivery to the Corporation at its principal
office of a written request for a special meeting signed by the
holders of at least ten percent (10%) of the Convertible Preferred
Stock then outstanding, call a special meeting of the holders of the
Convertible Preferred Stock to be held within 60 days after the
delivery of such request for the purpose of electing such additional
directors.
The holders of the Convertible Preferred Stock and any Parity
Dividend Stock referred to above voting as a class shall have the
right to remove without cause at any time and replace any directors
such holders have elected pursuant to this Section 6.
(c) Class Voting Rights. So long as the Convertible Preferred
Stock is outstanding, the Corporation shall not, without the
affirmative vote or consent of the holders of at least 66 and 2/3
percent of all outstanding shares of Convertible Preferred Stock
(unless the vote or consent of a greater percentage is required by
applicable law or the Certificate of Incorporation, as amended, of the
Corporation), voting separately as a class, (i) amend, alter or repeal
(by merger, consolidation or otherwise) any provision of the
Certificate of Incorporation, as amended, or the Bylaws of the
Corporation, as amended, so as to affect adversely the relative
rights, preferences, qualifications, limitations or restrictions of
the Convertible Preferred Stock, (ii) authorize or issue, or increase
the authorized amount of, any additional class or series of stock, or
any security convertible into stock of such class or series, ranking
prior to the Convertible Preferred Stock in respect of the payment of
dividends or upon liquidation, dissolution or winding up of the
Corporation or (iii) effect any reclassification of the Convertible
Preferred Stock. A class vote on the part of the Convertible Preferred
Stock, without limitation, specifically shall not be deemed to be
required (except as otherwise required by law or resolution of the
Board of Directors of the Corporation) in connection with: (a) the
authorization, issuance or increase in the authorized amount of any
shares of any other class or series of stock that ranks junior to, or
on a parity with, the Convertible Preferred Stock in respect of the
payment of dividends and upon liquidation, dissolution or winding up
of the Corporation; or (b) the authorization, issuance or increase in
the amount of any notes, bonds, mortgages, debentures or other
obligations of the Corporation not convertible into or exchangeable,
directly or indirectly, for stock ranking prior to the Convertible
Preferred Stock in respect of the payment of dividends or upon
liquidation, dissolution or winding up of the Corporation.
(7) Outstanding Shares. For purposes of this Certificate of
Designations, all shares of Convertible Preferred Stock shall be
deemed outstanding except (i) from the date fixed for redemption
pursuant to Section 4, all shares of Convertible Preferred Stock that
have been so called for redemption under Section 4 if shares of Common
Stock or cash necessary for payment of the Redemption Price
irrevocably have been set aside; (ii) from the date of surrender of
certificates representing shares of Convertible Preferred Stock, all
shares of Convertible Preferred Stock converted into Common Stock; and
(iii) from the date of
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registration of transfer, all shares of Convertible Preferred Stock
held of record by the Corporation or any subsidiary of the
Corporation.
(8) No Other Rights and Powers. The shares of Convertible
Preferred Stock shall not have any relative, participating, optional
or other special rights and powers other than as set forth herein.
(9) Preemptive Rights. The Convertible Preferred Stock is not
entitled to any preemptive or subscription rights in respect of any
securities of the Corporation.
(10) Transfer Restrictions.
(a) Legends on Convertible Preferred Stock.
(i) The certificates evidencing shares of Convertible
Preferred Stock shall, until the third anniversary of the
date of original issuance of such shares, unless otherwise
agreed by the Corporation and the holders of any such
certificates, bear a legend substantially to the following
effect:
"This Security (or its predecessor) is subject to,
and is transferable only upon compliance with, the
provisions of a Revolving Credit Agreement, dated as of
March 10, 1995, among Amax Gold Inc. and Cyprus Amax
Minerals Company. A copy of the above referenced
Revolving Credit Agreement is on file at the offices of
Amax Gold Inc. This Security (or its predecessor) has
not been registered under the Securities Act of 1933,
as amended, or any similar state securities laws, and
this Security and any shares of common stock issued
upon conversion or redemption hereof may not be
transferred except pursuant to an effective
registration statement, or an exemption from
registration, under said act and laws. Amax Gold Inc.
will furnish without charge to the holder hereof, upon
request, the powers, designations, preferences and
relative participating, optional or other special
rights of the class of capital stock represented
hereby, and the qualifications limitations or
restrictions of such preferences and/or rights."
Until the third anniversary of the date of original
issuance of the shares of Convertible Preferred Stock,
certificates representing the shares of Common Stock issued
upon conversion or redemption of Convertible Preferred Stock
and not otherwise registered pursuant to an effective
registration statement under the Securities Act shall bear a
comparable legend. The shares of Convertible Preferred Stock
and the shares of Common Stock issued upon conversion or
redemption thereof and not otherwise registered pursuant to
an effective registration statement under the Securities Act
shall be subject to the restrictions on transfer set forth
in the legends referred to above until the third anniversary
of the date of original issuance of such shares of
Convertible Preferred Stock; provided, however, and
notwithstanding the foregoing, such shares of Convertible
Preferred Stock and such shares of Common Stock may be
resold under and
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pursuant to the terms and conditions of Regulation S of the
Securities Act, prior to the end of the third anniversary
date of the issuance of such shares.
(ii) The certificates evidencing shares of Convertible
Preferred Stock (and shares of Common Stock issued upon
conversion thereof and not otherwise registered pursuant to
an effective registration statement under the Securities
Act) issued to any "accredited investor" within the meaning
of Rule 501(a)(1), (2), (3) or (7) under the Securities Act
that is not a "qualified institutional buyer" within the
meaning of Rule 144A under the Securities Act shall bear,
until such time as the Corporation and the transfer agent
for the Convertible Preferred Stock or Common Stock shall
have received evidence satisfactory to each of them that the
transfer of such shares of Convertible Preferred Stock or
Common Stock has been effected in accordance with the
limitations on transfer set forth in paragraph (a)(1) above,
the following additional legend:
"In connection with any transfer, the holder will
deliver to the registrar and transfer agent such
certificates, opinions of counsel and other information
as it may reasonably require to confirm that the
transfer complies with the foregoing restrictions."
(b) Transfer Agent Requirements. The transfer agent and
registrar for the Convertible Preferred Stock and the transfer
agent and registrar for the Common Stock shall not be required to
accept for registration of transfer any Convertible Preferred
Stock or Common Stock bearing the legend contained in paragraph
(a)(ii) above, except upon presentation of satisfactory evidence
that the restrictions on transfer of the Convertible Preferred
Stock or Common Stock referred to in the legend in paragraph
(a)(i) have been complied with, all in accordance with such
reasonable regulations and procedures as the Corporation may from
time to time agree with the transfer agent and registrar for the
Convertible Preferred Stock and the transfer agent and registrar
for the Common Stock.
(11) Severability of Provisions. Whenever possible, each
provision hereof shall be interpreted in a manner as to be effective
and valid under applicable law, but if any provision hereof is held to
be prohibited by or invalid under applicable law, such provision shall
be ineffective only to the extent of such prohibition or invalidity,
without invalidating or otherwise adversely affecting the remaining
provisions hereof. If a court of competent jurisdiction should
determine that a provision hereof would be valid or enforceable if a
period of time were extended or shortened or a particular percentage
were increased or decreased, then such court may make such change as
shall be necessary to render the provision in question effective and
valid under applicable law.
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"FURTHER RESOLVED, that each officer of the Corporation hereby is
authorized, in the name and on behalf of the Corporation, to prepare,
execute, seal and file, or cause to be prepared, executed, sealed and
filed, the Certificate of Designations relating to the Convertible
Preferred Stock in accordance with the Delaware General Corporation
Law and to take any and all such action with respect thereto that such
officer of the Corporation shall deem necessary or advisable;
"FURTHER RESOLVED, that each officer of the Corporation hereby is
authorized, in the name and on behalf of the Corporation, to execute
and deliver, or cause to be made, executed and delivered, all such
officers' certificates and such other agreements, undertakings,
documents or instruments and to perform such other acts as such
officer may deem necessary or appropriate in order to effectuate the
purpose and intent of these resolutions; and
IN WITNESS WHEREOF, the Corporation has caused this Certificate
to be executed in its name by Mark A. Lettes, its Vice President, and
attested by its Secretary, this 2nd day of June, 1995.
NEW AGI CORPORATION
By /s/ Mark A. Lettes
---------------------------------
Mark A. Lettes
Vice President
Attest:
By /s/ Deborah J. Friedman
-----------------------------
Deborah J. Friedman
Secretary
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