SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
FORD HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 38-2890269
(State of incorporation or organization) (I.R.S. Employer
Identification No.)
The American Road, Dearborn, Michigan 48121-1899
(Address of principal executive offices) (zip code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
- ------------------- ------------------------------
Securities to be registered pursuant to Section 12(g) of the Act:
Series D Cumulative Preferred Stock ($1.00 par value) with an
annual dividend rate of 8.10% and a liquidation preference of
$100,000 per share
(Title of class)
<PAGE>
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. Description of Registrant's Securities to be Registered.
The contents of Registration Statement No. 33-63116 and the
prospectus dated August 3, 1994, as supplemented by a prospectus
supplement dated August 3, 1994, to be filed with the Securities
and Exchange Commission on or before August 5, 1994 pursuant to Rule
424(b)(5) under the Securities Act of 1933, as amended, relating to
Series D Cumulative Preferred Stock of Ford Holdings, Inc. and
Depositary Shares represented thereby, are incorporated herein by
reference.
Item 2. Exhibits.
Exhibit 1 Form of stock certificate for shares of Series D
Cumulative Preferred Stock. Filed with this
Registration Statement.
Exhibit 2.1 Certificate of Incorporation of Ford Holdings, Inc.
dated August 30, 1989. Filed as Exhibit 3.1 to
Registration Statement No. 33-35653 on Form S-4 and
incorporated herein by reference.
Exhibit 2.2 Certificate of Designations of Flexible Rate Auction
Preferred Stock (Exchange). Filed as Exhibit 4-A-1 of
Ford Holdings, Inc.'s Annual Report on Form 10-K for
the year ended December 31, 1990, File No. 0-18263,
and incorporated herein by reference.
Exhibit 2.3 Certificate of Amendment to Certificate of
Designations of Flexible Rate Auction Preferred Stock
(Exchange) filed December 27, 1991. Filed as Exhibit
4-A-2 of Ford Holdings, Inc.'s Annual Report on Form
10-K for the year ended December 31, 1991, File No. 0
-18263, and incorporated herein by reference.
Exhibit 2.4 Certificate of Amendment to Certificate of
Designations of Flexible Rate Auction Preferred Stock
(Exchange) filed June 1, 1992. Filed as Exhibit 4-A-4
of Ford Holdings, Inc.'s Annual Report on Form
10-K for the year ended December 31, 1992, File No. 0
-18263, and incorporated herein by reference.
Exhibit 2.5 Certificate of Designations of Series A Cumulative
Preferred Stock. Filed as Exhibit 4.4 to Registration
Statement No. 33-48743, as amended, and incorporated
herein by reference.
Exhibit 2.6 Certificate of Designations of Series B Cumulative
Preferred Stock. Filed as Exhibit 4-A-6 of Ford
Holdings, Inc.'s Annual Report on Form 10-K for the
year ended December 31, 1992, File No. 0-18263, and
incorporated herein by reference.
-1-
<PAGE>
Exhibit 2.7 Form of Certificate of Designations of Series C
Cumulative Preferred Stock. Filed as Exhibit 2.7 to
Ford Holdings, Inc.'s, Registration Statement on Form
8-A dated August 24, 1993, File No. 0-18263, and
incorporated herein by reference.
Exhibit 2.8 Form of Certificate of Designations of Series D
Cumulative Preferred Stock. Filed with this
Registration Statement.
Exhibit 3 By-Laws of Ford Holdings, Inc., as amended through May
22, 1992. Filed as Exhibit 3-C of Ford Holdings,
Inc.'s Annual Report on Form 10-K for the year ended
December 31, 1992, File No. 0-18263, and incorporated
herein by reference.
- 2 -
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the Registrant has duly caused this
Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized.
FORD HOLDINGS, INC.
Date: August 3, 1994 By: /s/L. J. Ghilardi
L. J. Ghilardi
Assistant Secretary
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<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequential Page
at which Found
(or Incorporated
by Reference)
----------------
<S> <C> <C>
Exhibit 1 Form of stock certificate for shares of Series D Cumulative
Preferred Stock. Filed with this Registration Statement.
Exhibit 2.1 Certificate of Incorporation of Ford Holdings, Inc. dated
August 30, 1989. Filed as Exhibit 3.1 to Registration Statement
No. 33-35653 on Form S-4 and incorporated herein by reference.
Exhibit 2.2 Certificate of Designations of Flexible Rate Auction Preferred
Stock (Exchange). Filed as Exhibit 4-A-1 of Ford Holdings, Inc.'s
Annual Report on Form 10-K for the year ended December 31, 1990,
File No. 0-18263, and incorporated herein by reference.
Exhibit 2.3 Certificate of Amendment to Certificate of Designations of
Flexible Rate Auction Preferred Stock (Exchange) filed December
27, 1991. Filed as Exhibit 4-A-2 of Ford Holdings, Inc.'s
Annual Report on Form 10-K for the year ended December 31, 1991,
File No. 0-18263, and incorporated herein by reference.
Exhibit 2.4 Certificate of Amendment to Certificate of Designations of
Flexible Rate Auction Preferred Stock (Exchange) filed June
1, 1992. Filed as Exhibit 4-A-4 of Ford Holdings, Inc.'s
Annual Report on Form 10-K for the year ended December 31,
1992, File No. 0-18263, and incorporated herein by reference.
Exhibit 2.5 Certificate of Designations of Series A Cumulative Preferred
Stock. Filed as Exhibit 4.4 to Registration Statement No.
33-48743, as amended, and incorporated herein by reference.
Exhibit 2.6 Certificate of Designations of Series B Cumulative Preferred
Stock. Filed as Exhibit 4-A-6 of Ford Holdings, Inc.'s Annual
Report on Form 10-K for the year ended December 31, 1992, File
No. 0-18263, and incorporated herein by reference.
Exhibit 2.7 Form of Certificate of Designations of Series C Cumulative
Preferred Stock. Filed as Exhibit 2.7 to Ford Holdings, Inc.'s,
Registration Statement on Form 8-A dated August 24, 1993, File
No. 0-18263, and incorporated herein by reference.
Exhibit 2.8 Form of Certificate of Designations of Series D Cumulative
Preferred Stock. Filed with this Registration Statement.
Exhibit 3 By-Laws of Ford Holdings, Inc., as amended through May 22, 1992.
Filed as Exhibit 3-C of Ford Holdings, Inc.'s Annual Report on
Form 10-K for the year ended December 31, 1992, File No. 0-18263,
and incorporated herein by reference.
</TABLE>
h:\tshanley\fhi8a.D
EXHIBIT 1
[FORM OF FACE OF PREFERRED STOCK CERTIFICATE]
SERIES D CUMULATIVE PREFERRED STOCK
FORD HOLDINGS, INC.
Incorporated under the Laws of the State of Delaware
This Certificate is Transferable in New York
See Reverse for Certain Definitions
CUSIP 345277 65 1
CERTIFICATE NUMBER SHARES
This certifies that ___________________________ is the owner
of _________ fully paid and non-assessable shares of Series D
Cumulative Preferred Stock of the par value of One Dollar ($1.00)
each of Ford Holdings, Inc. transferable upon the books of the
corporation by the holder hereof in person or by duly authorized
attorney upon surrender of this certificate properly endorsed.
This certificate and the shares represented hereby are issued and
shall be held subject to all of the provisions of the Certificate
of Incorporation and all amendments thereto (copies of which are on
file at the office of the Transfer Agent) to all of which the
holder hereof by acceptance hereof expressly assents. This
certificate is not valid until countersigned by the Transfer Agent
and registered by the Registrar.
Witness the facsimile seal of the corporation and the
facsimile signatures of its duly authorized officers.
Dated:
COUNTERSIGNED AND REGISTERED:
____________________________,
TRANSFER AGENT AND REGISTRAR
By__________________________ __________________________
Authorized Officer Secretary
__________________________
Chairman of the Board
(FACSIMILE SEAL)
CERTIFICATE OF STOCK
<PAGE>
[FORM OF REVERSE OF PREFERRED STOCK CERTIFICATE]
FORD HOLDINGS, INC.
The Corporation will furnish without charge to each
stockholder who so requests, the powers, designations, preferences
and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications,
limitations or restrictions of such powers, preferences and/or
rights. Any such request should be addressed to the Secretary of
Ford Holdings, Inc., The American Road, Dearborn, Michigan 48121 or
to the Transfer Agent named on the face of this certificate.
The following abbreviations, when used in the inscription on
the face of this certificate, shall be construed as though they
were written out in full according to applicable laws or
regulations:
<TABLE>
<CAPTION>
<S> <C>
TEN COM--as tenants in common UNIF GIFT MIN ACT--______Custodian_______
TEN ENT--as tenants by the entireties (Cust) (Minor)
JT TEN --as joint tenants with right under Uniform Gifts to
of survivorship and not as Minors Act____________
tenants in common (State)
</TABLE>
Additional abbreviations may also
be used though not in the above list.
For Value Received ___________________________ hereby
sell, assign and transfer unto (Please insert social
security or other identifying number of assignee ___________)
_________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE)
- -------------------------------------------------------------
- ----------Shares of the stock represented by the within
Certificate, and do hereby irrevocably constitute and appoint
___________________________________________ Attorney, to transfer
the said stock on the books of the within named Corporation with
full power of substitution in the premises.
Dated:_______________________
X________________________________________
NOTICE: THE SIGNATURE TO THIS
ASSIGNMENT MUST CORRESPOND WITH THE
NAME AS WRITTEN UPON THE FACE OF THE
CERTIFICATE, IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT, OR ANY
CHANGE WHATEVER.
h:\tshanley\fhiD.stk
Exhibit 2.8
CERTIFICATE OF THE DESIGNATIONS, PREFERENCES
AND RELATIVE, PARTICIPATING, OPTIONAL OR
OTHER SPECIAL RIGHTS, AND THE QUALIFICATIONS,
LIMITATIONS OR RESTRICTIONS THEREOF, OF
SERIES D CUMULATIVE PREFERRED STOCK
OF
FORD HOLDINGS, INC.
Pursuant to Section 151(g) of the General Corporation Law
of the State of Delaware
FORD HOLDINGS, INC., a corporation organized and
existing under the laws of the State of Delaware, hereby
certifies that the following resolution was adopted by the Board
of Directors and by the Certificate of Designations Committee,
pursuant to authority conferred on the Certificate of
Designations Committee by the Board of Directors:
RESOLVED, that a series of preferred stock, par value
$1.00 per share, of the Corporation is hereby created and
established, and the amount thereof and the voting powers,
designations, preferences and relative, participating, optional
or other special rights and qualifications, limitations or
restrictions thereof are hereby fixed as follows:
1. Designation; Amount and Series. The series of
Preferred Stock created hereby shall comprise 5,600 shares
designated as "Series D Cumulative Preferred Stock" (referred to
herein as the "Series D Preferred Stock").
2. Definitions. Unless the context or use indicates
another or different meaning or intent, the following terms shall
have the following meanings, whether used in the singular or
plural:
"Affiliate" shall mean any Person controlled by, in
control of, or under common control with, the Corporation.
"Board of Directors" shall mean the Board of Directors
of the Corporation or, unless the context otherwise requires, an
authorized committee thereof.
"Business Day" shall mean any day other than a
Saturday, Sunday or day on which banks in the State of New York
are authorized or obligated by law or executive order to close.
"Cash-Out Merger" shall have the meaning specified in
Section 4(b) hereof.
"Certificate of Designations Committee" shall mean the
committee of the Board of Directors on which the Board of
Directors has conferred authority to fix the designations,
preferences and relative, participating, optional or other
special rights, and qualifications, limitations or restrictions
of Series D Preferred Stock.
"Common Stock" shall mean all shares now or hereafter
issued of the class of common stock of the Corporation presently
authorized and any other shares of stock into which such stock
may hereafter be exchanged from time to time.
"Corporation" shall mean Ford Holdings, Inc., a
Delaware corporation, or its successor.
"Date of Original Issue" shall mean, as to any share,
the date on which the Corporation initially issues such share;
provided, however, that any share issued prior to December 1,
1994 shall be deemed to have a Date of Original Issue that is the
first date on which any shares of Series D Preferred Stock shall
have been issued.
"Default Period" shall have the meaning specified in
Section 5(c)(i) hereof.
"Dividend Payment Date" shall have the meaning
specified in Section 3(a) hereof.
"Dividend Periods" shall mean quarterly dividend
periods commencing on the first day of March, June, September and
December of each year and ending on and including the day
preceding the first day of the next succeeding Dividend Period
(other than the Initial Dividend Period).
"Flexible Rate Auction Preferred Stock" shall mean the
Flexible Rate Auction Preferred Stock (Exchange), Series A,
Series B, Series C, Series D, Series E, Series F, Series G,
Series H, Series I, Series J and Series K, par value $1.00 per
share, liquidation preference $100,000 per share, previously
issued by the Corporation.
"Holder" or "holder" shall mean, when used with respect
to the Series D Preferred Stock, the Flexible Rate Auction
Preferred Stock, the Series A Preferred Stock, the Series B
Preferred Stock, the Series C Preferred Stock, the Parity
Preferred or the Voting Preferred, the holder of such shares as
the same appears on the Stock Books.
"Initial Dividend Period" shall mean the period
commencing on the Date of Original Issue and ending on (and
including) the day preceding the first day of the next succeeding
Dividend Period, unless the Date of Original Issue occurs after
the record date for the Dividend Payment Date occurring in such
Dividend Period and prior to the first day of such Dividend
Period, in which case the Initial Dividend Period shall end on
(and include) the day preceding the first day of the second next
succeeding Dividend Period.
"Junior Liquidation Stock" shall have the meaning
specified in Section 4(a) hereof.
"Junior Stock" shall have the meaning specified in
Section 3(c) hereof.
"Liquidation Preferred" shall have the meaning
specified in Section 4(d) hereof.
"Outstanding" shall mean, as of any date, shares of
Series D Preferred Stock, Voting Preferred or Parity Preferred,
as the case may be, theretofore issued by the Corporation except,
without duplication, (i) any shares of Series D Preferred Stock,
Voting Preferred or Parity Preferred, as the case may be,
theretofore cancelled or delivered for cancellation by the
Corporation, (ii) any shares of Series D Preferred Stock, Voting
Preferred or Parity Preferred, as the case may be, represented by
any certificate in lieu of which a new certificate has been
executed and delivered by the Corporation and (iii) any shares of
Series D Preferred Stock, Voting Preferred or Parity Preferred,
as the case may be, held by the Corporation as treasury stock.
"Parity Preferred" shall have the meaning specified in
Section 5(a) hereof.
"Person" shall mean and include an individual, a
partnership, a corporation, a trust, an unincorporated
association, a joint venture or other entity.
"Regular Preferred Directors" shall have the meaning
specified in Section 5(a) hereof.
"Series A Preferred Stock" shall mean the Series A
Cumulative Preferred Stock, par value $1.00 per share,
liquidation preference $100,000 per share, of the Corporation.
"Series B Preferred Stock" shall mean the Series B
Cumulative Preferred Stock, par value $1.00 per share,
liquidation preference $100,000 per share, of the Corporation.
"Series C Preferred Stock" shall mean the Series C
Cumulative Preferred Stock, par value $1.00 per share,
liquidation preference $100,000 per share, of the Corporation.
"Special Preferred Directors" shall have the meaning
specified in Section 5(c)(i) hereof.
"Stock Books" shall mean the stock transfer books of
the Corporation maintained by the Corporation or any agent of the
Corporation.
"Transfer Agent" shall mean Chemical Bank or such
other agent or agents of the Corporation as may be designated by
the Board of Directors as transfer agent for the Series D
Preferred Stock.
"Voting Preferred" shall have the meaning specified in
Section 5(b) hereof.
3. Dividends. (a) The holders of shares of Series D
Preferred Stock, shall be entitled to receive, when, as and if
declared by the Board of Directors, out of funds legally
available therefor, cumulative cash dividends at the rate per
annum of $8,100 per share of Series D Preferred Stock.
Dividends on the Series D Preferred Stock shall be cumulative
from the Date of Original Issue, whether or not in any Dividend
Period or Periods there shall be funds of the Company legally
available for the payment of such dividends, and shall be payable
quarterly, when, as and if declared by the Board of Directors on
the first Business Day of March, June, September and December of
each year (each a "Dividend Payment Date"), commencing on the
Dividend Payment Date next succeeding the Date of Original Issue
(unless the Date of Original Issue occurs after the record date
for such Dividend Payment Date and prior to such Dividend Payment
Date or occurs prior to September 1, 1994, in which case
commencing on the second Dividend Payment Date next succeeding
the Date of Original Issue), or at such additional times and for
such interim periods, if any, as determined by the Board of
Directors. Each such dividend shall be payable in arrears to
Holders of shares of the Series D Preferred Stock as they appear
on the Stock Books at the close of business on such record dates,
not more than 60 days preceding the payment dates thereof, as
shall be fixed by the Board of Directors. Dividends on account
of arrears for any past Dividend Periods may be declared and paid
at any time, without reference to any regular Dividend Payment
Date, to Holders on such date, not exceeding 60 days preceding
the payment date thereof, as may be fixed by the Board of
Directors.
(b) The amount of dividends payable for each full
Dividend Period on the Series D Preferred Stock shall be computed
by dividing the annual dividend rate by four. The amount of
dividends payable for any period shorter or longer than a full
Dividend Period on the Series D Preferred Stock (including the
Initial Dividend Period, if applicable), shall be computed on the
basis of a 360-day year consisting of twelve 30-day months.
Holders of shares of Series D Preferred Stock shall not be
entitled to any dividends, whether payable in cash, property or
stock, in excess of full cumulative dividends, as herein
provided, on the Series D Preferred Stock. No interest, or sum
of money in lieu of interest, shall be payable in respect of any
dividend payment or payments on the Series D Preferred Stock
which may be in arrears.
(c) So long as any shares of Series D Preferred Stock
are Outstanding, the Corporation shall not declare, pay or set
apart for payment any dividend (other than a dividend in shares
of, or options, warrants or rights to subscribe for or purchase
shares of, Common Stock or Junior Stock (as defined below)) or
other distribution in respect of its Common Stock or any other
stock of the Corporation ranking junior to the shares of Series D
Preferred Stock as to dividends or upon liquidation ("Junior
Stock"), or call for redemption, redeem, purchase or otherwise
acquire for consideration any shares of its Common Stock or
Junior Stock (except by conversion into or exchange for other
shares of Common Stock or Junior Stock) unless full cumulative
dividends on all shares of Series D Preferred Stock for all past
Dividend Periods shall have been declared and paid (or declared
and a sum sufficient for the payment of the dividends set apart
for payment). No dividends shall be declared or paid or set
apart for payment on any shares of Series D Preferred Stock for
any period unless full cumulative dividends have been or
contemporaneously are declared and paid on each of the shares of
Series D Preferred Stock and Parity Preferred through the most
recent applicable Dividend Payment Date for such shares.
(d) The Corporation may not purchase or otherwise
acquire any shares of Series D Preferred Stock during any period
when dividend payments on any Outstanding shares of Series D
Preferred Stock or Parity Preferred are in arrears.
4. Rights on Liquidation or Cash-Out Merger. (a)
Upon the liquidation, dissolution or winding up of the affairs of
the Corporation, whether voluntary or involuntary, holders of
shares of Series D Preferred Stock shall be entitled to receive,
out of assets of the Corporation available for distribution to
stockholders after satisfying claims of creditors but before any
payment or distribution on the Common Stock or on any other class
of stock ranking junior to the shares of Series D Preferred Stock
upon liquidation ("Junior Liquidation Stock"), a liquidating
distribution in the amount of $100,000 per share, which shall be
the liquidation preference of such shares, plus an amount equal
to accumulated and unpaid dividends on each such share (whether
or not declared) to and including the date of final dissolution.
Unless and until payment in full has been made to holders of
shares of the Series D Preferred Stock of the liquidating
distributions to which they are entitled as provided in this
Section 4, no dividends or distributions shall be made to holders
of the Common Stock or the Junior Liquidation Stock, no payment
or delivery or commitment to make payment or delivery of any
money or assets to any Affiliate shall be made and no purchase,
redemption or other acquisition for any consideration by the
Corporation shall be made in respect of the Common Stock or the
Junior Liquidation Stock. After the payment to holders of shares
of Series D Preferred Stock of the full amount of the liquidating
distributions to which they are entitled pursuant to the second
next preceding sentence, holders of the shares of Series D
Preferred Stock (in their capacity as such holders) shall have no
right or claim to any of the remaining assets of the Corporation.
(b) In any merger or consolidation of the Corporation
with or into any other corporation, including any Affiliate, or a
merger or consolidation of any other corporation, including any
Affiliate, with or into the Corporation, which merger or
consolidation by its terms provides for the payment of only cash
to holders of the Series D Preferred Stock, each holder of Series
D Preferred Stock shall be entitled to receive an amount equal to
the liquidation preference of the shares of Series D Preferred
Stock held by such holder, plus an amount equal to accumulated
and unpaid dividends on such shares to and including the date of
payment thereof, and no more in exchange for such shares of
Series D Preferred Stock (a "Cash-Out Merger").
(c) Neither the sale, lease or exchange (for cash,
stock, securities or other consideration) of all or substantially
all of the property and assets of the Corporation, nor the merger
or consolidation of any other corporation with or into the
Corporation, nor the merger or consolidation of the Corporation
with or into any other corporation, shall be deemed to be a
dissolution, liquidation or winding up of the affairs of the
Corporation, voluntary or involuntary, for the purposes of this
Section 4; provided, however, that any Cash-Out Merger shall be
deemed to be a liquidation of the Corporation solely for purposes
of determining the rights of the holders of shares of Series D
Preferred Stock in respect of such Cash-Out Merger.
(d) If upon liquidation, dissolution or winding up of
the affairs of the Corporation, whether voluntary or involuntary,
the assets of the Corporation available for distribution to the
holders of Series D Preferred Stock and any other preferred stock
of the Corporation, including the Flexible Rate Auction Preferred
Stock, the Series A Preferred Stock, the Series B Preferred Stock
and the Series C Preferred Stock, ranking upon liquidation on a
parity with the Series D Preferred Stock (the "Liquidation
Preferred"), shall be insufficient to pay the full amount of the
liquidating distributions to which holders of Series D Preferred
Stock are entitled pursuant to Section 4(a) above and liquidating
distributions to which holders of the Liquidation Preferred are
entitled, then such assets shall be distributed among the holders
of Series D Preferred Stock and Liquidation Preferred ratably in
proportion to the full amount of distributions to which each
holder of Series D Preferred Stock and Liquidation Preferred
would have been entitled.
5. Voting Rights. (a) Election of Directors.
Holders of the shares of Series D Preferred Stock and shares of
Voting Preferred shall have the right, voting as a single class
together with holders of all other shares of preferred stock of
the Corporation, including the Flexible Rate Auction Preferred
Stock, the Series A Preferred Stock, the Series B Preferred Stock
and the Series C Preferred Stock, ranking on a parity with the
shares of Series D Preferred Stock as to the payment of dividends
("Parity Preferred"), to elect a number of directors of the
Corporation (the "Regular Preferred Directors") which is equal to
the smallest whole number that is not less than 25% of the
directors of the Corporation. Holders of all such stock shall
vote in such elections on the basis of one vote per $100,000
liquidation preference and not cumulatively and the holder or
holders of one-third of the shares of such stock then
Outstanding, present in person or by proxy, shall constitute a
quorum for the election of directors by them.
(b) Other Matters. On all matters other than the
election of directors as to which stockholders generally have a
vote, each share of Series D Preferred Stock and Voting Preferred
shall be entitled to such number of votes as determined below and
each share of Common Stock will be entitled to one vote. The
shares of Series D Preferred Stock shall vote together as a
single class with all shares of Common Stock and all other shares
of preferred stock, including the Flexible Rate Auction Preferred
Stock, the Series A Preferred Stock, the Series B Preferred Stock
and the Series C Preferred Stock, which have all the same voting
rights as conferred upon the Series D Preferred Stock in Section
5(a) and this Section 5(b) (the "Voting Preferred"). Holders of
shares of Series D Preferred Stock and Voting Preferred shall be
entitled to the number of votes determined pursuant to the
following formula per $100,000 liquidation preference:
X = [(Y divided by .75) minus Y] divided by Z
X: number of votes per share of Series D Preferred Stock and
Voting Preferred per $100,000 liquidation preference.
Y: number of shares of outstanding Common Stock on the
applicable record date.
Z: amount equal to (I) number of shares of Outstanding
Series D Preferred Stock on the applicable record date
plus (II) sum of the liquidation preference of all
Outstanding Voting Preferred on the applicable record
date divided by 100,000.
The Corporation shall mail or cause the Transfer Agent to mail to
Holders of shares of Series D Preferred Stock notice of any
meeting of stockholders not less than 20 days nor more than 60
days prior to the date fixed for such meeting. Except as
provided in Section 5(c), the number of directors of the
Corporation shall be determined in accordance with the By-Laws of
the Corporation.
(c) Right to Elect Two Additional Members of the Board
of Directors. (i) During any period (referred to herein as a
"Default Period") when dividend payments on any shares of Series
D Preferred Stock or Parity Preferred for such number of Dividend
Periods or portions thereof (or the equivalent thereof in the
case of Parity Preferred), which in the aggregate contain at
least 540 days, shall not have been paid or declared and a sum
sufficient for the payment thereof set aside for payment, then in
any such case the number of directors of the Corporation shall
automatically be increased by two additional directors and the
holders of the shares of Series D Preferred Stock and Parity
Preferred shall possess full voting powers (to the exclusion of
the holders of all other series and classes of capital stock of
the Corporation), voting as a single class, to elect such two
directors (the "Special Preferred Directors").
(ii) The Default Period and voting rights created by
the occurrence of the circumstances described in Section 5(c)(i)
shall continue unless and until all accumulated and unpaid
dividends on any of the then Outstanding shares of Series D
Preferred Stock and Parity Preferred, including in the case of
Series D Preferred Stock the accumulated and unpaid dividends for
the current Dividend Period, shall have been paid or sufficient
funds for the payment thereof shall have been deposited with the
Transfer Agent, at which time the voting rights described in
Section 5(c)(i) shall cease, subject always, however, to the
revesting of such voting power in the holders of all shares of
Series D Preferred Stock and Parity Preferred upon the further
occurrence of any of the circumstances described in Section
5(c)(i) above.
(iii) The term of office of all persons who are
directors of the Corporation at the time of the special meeting
referred to in Section 5(c)(v) below shall continue,
notwithstanding the election of Special Preferred Directors at
such meeting by the holders of shares of Series D Preferred Stock
and Parity Preferred. The Regular Preferred Directors and the
Special Preferred Directors, together with the incumbent
directors elected by the holders of the Common Stock, shall
constitute the duly elected directors of the Corporation.
(iv) Simultaneously with the expiration of the Default
Period, the term of office of the Special Preferred Directors
elected by the holders of shares of Series D Preferred Stock and
Parity Preferred at the special meeting referred to in Section
5(c)(v) below shall terminate, the number of directors of the
Corporation shall automatically be decreased by two, only the
Regular Preferred Directors and the incumbent directors otherwise
elected by the holders of the Common Stock shall constitute the
duly elected directors of the Corporation, and the right of the
holders of Series D Preferred Stock and Parity Preferred to elect
directors during a Default Period as provided above shall cease.
(v) Within five days following the accrual of any
right of the holders of shares of Series D Preferred Stock and
Parity Preferred to elect directors upon the occurrence of a
Default Period as described in Section 5(c)(i), the Corporation
shall mail or cause to be mailed to the holders of Series D
Preferred Stock and Parity Preferred notice of a special meeting
of stockholders for a date not less than 20 days nor more than 60
days after the date of such notice. If the Corporation does not
mail or cause to be mailed notice of such meeting as provided in
the next preceding sentence, a meeting may be called by any
holder of Series D Preferred Stock or Parity Preferred. The date
on which such right accrued shall be the record date for
determining the holders of stock entitled to notice of and to
vote at the special meeting. Holders of all such stock shall
vote in such elections on the basis of one vote per $100,000
liquidation preference and not cumulatively and the holder or
holders of one-third of the shares of such stock then
Outstanding, present in person or by proxy, shall constitute a
quorum for the election of directors by them. At any such
meeting or adjournment thereof in the absence of a quorum, a
majority of the holders of such stock present in person or by
proxy shall have the power to adjourn the meeting for the
election of directors without notice, other than an announcement
at the meeting, until a quorum is present.
(d) Removal of Regular Preferred Directors and Special
Preferred Directors. Except as provided in Section 5(c)(iv),
Regular Preferred Directors and Special Preferred Directors shall
(subject to the provisions of any applicable law) be subject to
removal only by the vote of the holders of a majority of the
Outstanding shares of Series D Preferred Stock, Voting Preferred
and Parity Preferred in the case of Regular Preferred Directors,
and the holders of a majority of the Outstanding shares of Series
D Preferred Stock and Parity Preferred in the case of Special
Preferred Directors, in each case, voting together as a single
class. Any vacancy in the Board of Directors of the Corporation
occurring by reason of such removal or otherwise may be filled by
vote of a majority of the Outstanding shares of Series D
Preferred Stock, Voting Preferred and Parity Preferred in respect
of any Regular Preferred Director and by a vote of a majority of
the Outstanding shares of Series D Preferred Stock and Parity
Preferred in respect of any Special Preferred Director, in each
case, voting together as a single class, in person or by proxy at
a special meeting of stockholders called and held in accordance
with the provisions set forth above, and, if not so filled, such
vacancy shall (subject to the provisions of any applicable law)
be filled by a vote of a majority of the remaining Regular
Preferred Directors and any Special Preferred Directors.
(e) Right to Vote in Certain Events. (i) Without the
affirmative vote of the Holders of at least two-thirds of the
Outstanding shares of Series D Preferred Stock voting in person
or by proxy at a special meeting for the purpose, or the
unanimous written consent of the Holders of the Outstanding
shares of Series D Preferred Stock acting without such a meeting
(subject to the provisions of any applicable law), the
Corporation may not amend, alter or repeal any provisions of this
Certificate of Designations or the Certificate of Incorporation
so as to affect adversely the preferences, special rights or
powers of the shares of Series D Preferred Stock. Any increase
in the authorized number of any series of capital stock ranking
on a parity with the Series D Preferred Stock with respect to the
payment of dividends or the distribution of assets, or creation,
authorization or issuance of any securities convertible into, or
warrants, options or similar rights to purchase, acquire or
receive, shares of such capital stock or reclassification of any
authorized capital stock of the Corporation into any share
ranking on a parity with the Series D Preferred Stock with
respect to the payment of dividends or the distribution of assets
shall be deemed not to affect adversely the preferences, special
rights or powers of the shares of Series D Preferred Stock.
(ii) Without the affirmative vote of the holders of at
least two-thirds of the Outstanding shares of Series D Preferred
Stock and Parity Preferred, voting together as a single class, in
person or by proxy at a special meeting for the purpose, or the
unanimous written consent of the Holders of the Outstanding
shares of Series D Preferred Stock and Parity Preferred acting
without such a meeting (subject to the provisions of any
applicable law), the Corporation may not create, authorize or
issue shares of any class or series of capital stock ranking
senior to the shares of Series D Preferred Stock and Parity
Preferred with respect to the payment of dividends or the
distribution of assets, or create, authorize or issue any
securities convertible into, or warrants, options or similar
rights to purchase, acquire or receive, shares of capital stock
ranking senior to the shares of Series D Preferred Stock and
Parity Preferred with respect to the payment of dividends or the
distribution of assets or reclassify any authorized capital stock
of the Corporation into any shares ranking senior to the shares
of Series D Preferred Stock and Parity Preferred with respect to
the payment of dividends or the distribution of assets.
(iii) Without the affirmative vote of the holders of a
majority of the Outstanding shares of Series D Preferred Stock,
Voting Preferred and Parity Preferred, voting together as a
single class, in person or by proxy at a special meeting for the
purpose, or the unanimous written consent of the Holders of the
Outstanding shares of Series D Preferred Stock, Voting Preferred
and Parity Preferred acting without such a meeting (subject to
the provisions of any applicable law), the Corporation may not
sell, lease or convey all or substantially all of the assets of
the Corporation, or consolidate or merge with or into any other
corporation unless, in the case of a consolidation or merger,
each holder of shares of Series D Preferred Stock, Voting
Preferred and Parity Preferred shall receive, upon such
consolidation or merger, an amount in cash equal to the
liquidation preference, premium, if any, and accumulated and
unpaid dividends through the date of payment of such shares of
Series D Preferred Stock, Voting Preferred and Parity Preferred
in exchange for such shares of Series D Preferred Stock, Voting
Preferred and Parity Preferred.
(f) No Right to Vote in Certain Events. With respect
to any right of the holders of shares of Series D Preferred Stock
to vote on any matter, whether such right is created by this
Certificate of Designations, by applicable law or otherwise, no
Holder of any share of Series D Preferred Stock shall be entitled
to vote and no share of Series D Preferred Stock shall be deemed
to be Outstanding for the purpose of voting or determining the
number of shares required to constitute a quorum, if prior to or
concurrently with a determination of shares entitled to vote or
of shares deemed Outstanding for quorum purposes, as the case may
be, such share is held beneficially or of record by the
Corporation or any Affiliate of the Corporation.
6. Record Holders. The Corporation and the Transfer
Agent may deem and treat the record holder of any shares of
Series D Preferred Stock as shown on the Stock Books as the true
and lawful owner thereof for all purposes, and neither the
Corporation nor the Transfer Agent shall be affected by any
notice to the contrary.
IN WITNESS WHEREOF, FORD HOLDINGS, INC. has caused this
Certificate to be made under the seal of the Corporation and
signed by M. S. Macdonald, its Vice President-Treasurer, and
attested by L. J. Ghilardi, its Assistant Secretary, this ___ day
of August, 1994.
FORD HOLDINGS, INC.
By:______________________
M. S. Macdonald
Vice President-Treasurer
(CORPORATE SEAL)
ATTEST:
By ______________________
L. J. Ghilardi
Assistant Secretary
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