<PAGE> 1
FORM 8-A/A
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
ARCADIAN CORPORATION
(exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 76-0275035
(State of incorporation (I.R.S. Employer Identification No.)
or organization)
6750 POPLAR AVENUE, SUITE 600
MEMPHIS, TENNESSEE 38138-7419
(Address of principal executive offices) (Zip Code)
</TABLE>
Securities to be registered pursuant to Section 12(b) of the Act:
<TABLE>
<S> <C>
Title of each class Name of each exchange on which
to be so registered each class is to be registered
MANDATORILY CONVERTIBLE PREFERRED STOCK, NEW YORK STOCK EXCHANGE, INC.
SERIES A, PAR VALUE $.01 PER SHARE
COMMON STOCK, PAR VALUE NEW YORK STOCK EXCHANGE, INC.
$.01 PER SHARE
</TABLE>
Securities to be registered pursuant to Section 12(g) of the Act:
NONE
<PAGE> 2
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
MANDATORILY CONVERTIBLE PREFERRED STOCK, SERIES A
The information set forth in "Description of Capital Stock -
Description of Preferred Stock" in the Registration Statement on Form S-4
(Commission File No. 33-90290), as amended ("Preferred Stock Registration
Statement"), filed by Arcadian Corporation ("Corporation") with the Securities
and Exchange Commission ("Commission") under the Securities Act of 1933, as
amended ("Securities Act"), is incorporated herein by reference.
Additionally, pursuant to an amendment to the Corporation's Restated
Certificate of Incorporation ("Certificate") effected subsequent to the filing
of the Preferred Stock Registration Statement, holders of the Mandatorily
Convertible Preferred Stock, Series A ("Preferred Stock"), may voluntarily
convert their shares of Preferred Stock into shares of the Corporation's Common
Stock, par value $.01 per share ("Common Stock") on a share-for-share basis
until August 16, 1996 ("Holder Conversion Right"), provided that the Current
Market Price (as defined in the Certificate) of the Common Stock does not
exceed $22.475 per share. If the Current Market Price of the Common Stock
calculated as provided in the Certificate exceeds $22.475 per share, the number
of shares of Common Stock issuable upon conversion of a share of Preferred
Stock will be reduced so that the product of the Current Market Price of the
Common Stock and the number of shares of Common Stock so issuable equals
$22.475. The Holder Conversion Right will terminate on August 16, 1996, unless
earlier terminated upon the occurrence of certain events described in the
Certificate.
COMMON STOCK
The information set forth in "Description of Capital Stock -
Authorized Capital Stock" in the Registration Statement on Form S-1 (Commission
File No. 33-91698), as amended, filed by the Corporation with the Commission
under the Securities Act is incorporated herein by reference.
<PAGE> 3
ITEM 2. EXHIBITS.
The following materials are filed as exhibits to this Form 8-A/A:
<TABLE>
<CAPTION>
Exhibit
Number Exhibit
------ -------
<S> <C>
4.1 Restated Certificate of Incorporation of Arcadian Corporation.
4.2 Certificate of Designation relating to the Mandatorily Convertible Preferred Stock, Series A.
</TABLE>
<PAGE> 4
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this Form 8-A/A to be signed on its
behalf by the undersigned, thereunto duly authorized on May 16, 1996.
ARCADIAN CORPORATION
By: /s/ Peter H. Kesser
--------------------------------
Peter H. Kesser
Vice President - Law, General
Counsel and Secretary
<PAGE> 5
INDEX TO EXHIBITS
Exhibit
Number Exhibit
- ------ -------
[S] [C]
4.1 Restated Certificate of Incorporation of Arcadian Corporation.
4.2 Certificate of Designation relating to the Mandatorily Convertible
Preferred Stock, Series A.
<PAGE> 1
RESTATED CERTIFICATE OF INCORPORATION
OF
ARCADIAN CORPORATION
ARCADIAN CORPORATION, a corporation organized and existing under the
laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is Arcadian Corporation. Arcadian
Corporation was originally incorporated under the name "Universal Acquisition,
Inc.", and the original Certificate of Incorporation of the corporation was
filed with the Secretary of State of the State of Delaware on May 12, 1988.
2. Pursuant to Section 245 of the General Corporation Law of the State
of Delaware, this Restated Certificate of Incorporation restates and integrates
but does not further amend the provisions of the Certificate of Incorporation
of this corporation.
3. This Restated Certificate of Incorporation was duly adopted by the
Board of Directors of the corporation in accordance with Section 245 of the
General Corporation Law of the State of Delaware, and only restates and
integrates and does not further amend the provisions of the corporation's
Certificate of Incorporation as heretofore amended or supplemented, and there
is no discrepancy between those provisions and the provisions of this Restated
Certificate of Incorporation.
4. The text of the Restated Certificate of Incorporation as heretofore
amended or supplemented is hereby restated to read in its entirety as follows:
ARTICLE I
The name of the corporation is Arcadian Corporation.
ARTICLE II
The address of the corporation's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, County of New Castle,
Wilmington, Delaware 19801. The name of its registered agent at such address is
The Corporation Trust Company.
<PAGE> 2
ARTICLE III
The nature of the business or purposes to be conducted or promoted by
the corporation is to engage in any lawful business, act or activity for which
corporations may be organized under the General Corporation Law of the State of
Delaware.
ARTICLE IV
The total number of shares of all classes of capital stock which the
corporation shall have authority to issue is 40,000,000 of which 10,000,000
shares shall be preferred stock of the par value $.01 per share, and 30,000,000
shares shall be common stock of the par value of $.01 per share.
The corporation may issue one or more series of preferred stock, each
such series to consist of such number of shares as shall be determined by
resolution of the board of directors creating such series. The preferred stock
of each such series shall have such voting powers, full or limited, or no
voting powers, and such designations, preferences and relative, participating,
optional, redemption, conversion, exchange or other special rights and
qualifications, limitations or restrictions thereof, as shall be stated and
expressed by the board of directors in the resolution or resolutions providing
for the issue of such series of preferred stock pursuant to the authority to do
so which is hereby expressly vested in the board of directors.
Except as otherwise provided in any resolution or resolutions of the
board of directors providing for the issue of any particular series of
preferred stock, the number of shares of stock of any such series so set forth
in such resolution or resolutions may be increased or decreased (but not below
the number of shares of such series then outstanding) by a resolution or
resolutions likewise adopted by the board of directors.
Except as otherwise provided in any resolution or resolutions of the
board of directors providing for the issue of any particular series of
preferred stock, preferred stock redeemed or otherwise acquired by the
corporation shall assume the status of authorized but unissued preferred stock
and shall be unclassified as to series and may thereafter, subject to the
provisions of this Article IV and to any restrictions contained in any
resolution or resolutions of the board of directors providing for the issue of
any such series of preferred stock, be reissued in the same manner as other
authorized but unissued preferred stock.
Except as otherwise specifically required by law or as specifically
provided in any resolution or resolutions of the board of directors providing
for the issue of any particular
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<PAGE> 3
series of preferred stock, the exclusive voting power of the corporation shall
be vested in the common stock of the corporation. Each share of common stock
entitles the holder thereof to one vote at all meetings of the stockholders of
the corporation.
ARTICLE V
The Corporation may indemnify its directors, officers, employees and
agents, to the extent permitted by the General Corporation Law of the State of
Delaware.
ARTICLE VI
A director of the corporation shall not be liable to the corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except to the extent such exemption from liability or limitation
thereof is not permitted under the General Corporation Law of the State of
Delaware as the same exists or may hereafter be amended. Any repeal or
modification of the foregoing sentence shall not adversely affect any right or
protection of a director of the corporation existing hereunder with respect to
any act or omission occurring prior to such repeal or modification.
ARTICLE VII
The number of directors which shall constitute the whole board of
directors shall be fixed from time to time by the by-laws of the corporation.
ARTICLE VIII
In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized to make, alter or repeal
the by-laws of the corporation, but the stockholders may make additional
by-laws and may alter or repeal any by-law whether adopted by them or otherwise.
ARTICLE IX
Elections of directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
Meetings of stockholders may be held within or without the State of
Delaware, as the by-laws may provide. The books of the corporation may be kept
(subject to any provisions contained in the statutes of the State of Delaware)
outside the State of
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<PAGE> 4
Delaware at such place or places as may be designated from time to time by the
board of directors or in the by-laws of the corporation.
ARTICLE X
The corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute, and all rights conferred upon the directors
or stockholders of the corporation herein or in any amendment hereof are
granted subject to this reservation.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation has been
signed under the seal of the corporation by J. D. Campbell, as President of the
corporation, and attested by Peter H. Kesser, as Secretary of the corporation,
this 26th day of October, 1994.
ARCADIAN CORPORATION
By: /s/ J.D. Campbell
-----------------------------
J.D. Campbell
President
[Seal]
Attest:
/s/ Peter H. Kesser
- ------------------------------
Peter H. Kesser
Secretary
-4-
<PAGE> 5
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
ARCADIAN CORPORATION
ARCADIAN CORPORATION, a corporation organized and existing under the
laws of the State of Delaware ("Corporation"), hereby certifies as follows:
1. The amendment set forth below to the Corporation's Restated
Certificate of Incorporation was duly adopted in accordance with the provisions
of Sections 228 and 242 of the General Corporation Law of the State of Delaware:
The first paragraph of Article IV is amended to read as follows:
The total number of shares of all classes of capital
stock which the corporation shall have authority to issue is
200,000,000, of which 50,000,000 shares shall be preferred
stock with a par value of $.01 per share, and 150,000,000
shares shall be common stock with a par value of $.01 per share.
IN WITNESS WHEREOF, this Certificate of Amendment of Restated
Certificate of Incorporation has been signed under the seal of the Corporation
by J.D. Campbell, as President of the Corporation, and attested by Peter H.
Kesser, as Secretary of the Corporation, on May 30, 1995.
ARCADIAN CORPORATION
By: /s/ J.D. CAMPBELL
[Seal] ---------------------------------
J.D. Campbell
President
Attest:
/s/ PETER H. KESSER
- -------------------------------
Peter H. Kesser
Secretary
<PAGE> 1
ARCADIAN CORPORATION
CERTIFICATE OF DESIGNATION
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
MANDATORILY CONVERTIBLE PREFERRED STOCK, SERIES A
Arcadian Corporation (the "Corporation"), a corporation organized and
existing under the laws of the State of Delaware, HEREBY CERTIFIES that pursuant
to the provisions of Section 151 of the General Corporation Law of the State of
Delaware the following resolution was duly adopted by the Board of Directors of
the Corporation at a meeting thereof duly held on July 26, 1995, pursuant to
authority conferred upon the Board of Directors by the provisions of the
Restated Certificate of Incorporation, as amended, of the Corporation (the
"Certificate of Incorporation").
WHEREAS, the Certificate of Incorporation provides for the issuance of
up to 50 million shares of preferred stock, $.01 par value per share, of the
Corporation (the "Preferred Stock"), none of which are issued and outstanding on
the date hereof; and
WHEREAS, the Board of Directors of the Corporation is authorized to
create series of the Preferred Stock and to fix, by resolution or resolutions
for each series of Preferred Stock, the number of shares constituting such
series and the designations and powers, preferences and relative, participating,
optional or other special rights and qualifications, limitations or restrictions
thereof, including, without limiting the generality of the foregoing, such
provisions as may be desired concerning voting, redemption, dividends,
dissolution or the distribution of assets, conversion or exchange, and such
other subjects or matters as may be fixed by resolution or resolutions of the
Board of Directors under the General Corporation Law of the State of Delaware;
and
WHEREAS, it is the desire of the Board of Directors to authorize a new
series of Preferred Stock designated as Mandatorily Convertible Preferred Stock,
Series A, and to fix the number of shares constituting such series of Preferred
Stock and the designations and powers, preferences and relative, participating,
optional and other special rights and qualifications, limitations and
restrictions of such series as set forth below;
NOW, THEREFORE, BE IT RESOLVED, that there is hereby authorized a
series of Preferred Stock on the terms and with the provisions herein set forth:
<PAGE> 2
(1) Designation. The designation of the series of Preferred Stock
authorized by this resolution shall be "Mandatorily Convertible Preferred Stock,
Series A" (the "Series A Preferred Stock") consisting of 16,500,000 shares.
(2) Rank. The Series A Preferred Stock shall, with respect to dividend
rights and rights upon liquidation, dissolution and winding up, rank prior to
the Common Stock, par value $.01 per share (the "Common Stock"), of the
Corporation. All equity securities of the Corporation to which the Series A
Preferred Stock ranks prior, including the Common Stock, are collectively
referred to herein as the "Junior Securities," all equity securities of the
Corporation with which the Series A Preferred Stock ranks on a parity, if any,
are collectively referred to herein as the "Parity Securities" and all equity
securities of the Corporation (other than convertible debt securities) to which
the Series A Preferred Stock ranks junior, whether with respect to dividends or
upon liquidation, dissolution, winding-up or otherwise, if any, are collectively
referred to herein as the "Senior Securities." The Series A Preferred Stock
shall be subject to the creation of Junior Securities, Parity Securities and
Senior Securities.
(3) Dividends.
(a) The holders of outstanding shares of the Series A Preferred
Stock shall be entitled to receive, when, as and if declared by the
Board of Directors, out of funds legally available for the payment of
dividends, cumulative preferential cash dividends per share accruing
from the date of issuance of the Series A Preferred Stock at an annual
rate equal to $1.4725 per share and no more, payable quarterly in
arrears on or before the 45th day after the last day of each calendar
quarter for which such dividends are payable (each a "Dividend
Period"). If any dividend payment date shall be or be declared a
national, New York State or Tennessee State holiday or if banking
institutions in the States of New York or Tennessee shall be closed
because of a banking moratorium or otherwise on such date, then such
dividends shall be paid on the next succeeding day on which such banks
shall be open. Each such dividend will be payable to holders of record
as they appear on the stock books of the Corporation on such record
dates, not less than 10 nor more than 60 days preceding the payment
dates thereof, as shall be fixed by the Board of Directors. Dividends
on the Series A Preferred Stock shall accrue (whether or not declared)
on a daily basis. The first dividend shall accrue from August 9, 1995
through September 30, 1995, and subsequent dividends shall accrue on a
daily basis during the Dividend Period for which they are payable.
Accrued and unpaid dividends shall not bear interest. Dividends will
cease to accrue in respect of the Series A Preferred Stock on the
Mandatory Conversion Date (as defined in paragraph (4)(a)) or on the
date of its earlier redemption or conversion, unless the Corporation
shall default in
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<PAGE> 3
delivering the shares of Common Stock or other kind of security or
other property and cash, if any, payable by the Corporation
upon such redemption or conversion pursuant to paragraph (4). Dividends
(or cash amounts equal to accrued and unpaid dividends) payable on the
Series A Preferred Stock for any period shorter than a quarterly
dividend period shall be computed on the basis of a 360-day
year of twelve 30-day months.
(b) No full dividends shall be declared by the Board of
Directors or paid or set apart for payment by the Corporation on any
Parity Securities for any period unless full cumulative dividends have
been or contemporaneously are declared and paid or declared and a sum
set apart sufficient for such payment on the Series A Preferred Stock
for all Dividend Periods ending on or prior to the date of payment of
any such dividend on any Parity Securities. If any dividends are not
paid or set apart in full, as aforesaid, upon the shares of the Series
A Preferred Stock and any Parity Securities, all dividends declared
upon the Series A Preferred Stock and any Parity Securities shall be
declared pro rata so that the amount of dividends declared per share on
the Series A Preferred Stock and such Parity Securities shall in all
cases bear to each other the same ratio that accrued dividends per
share on the Series A Preferred Stock and such Parity Securities bear
to each other. Unless full cumulative dividends, if any, accrued on all
outstanding shares of the Series A Preferred Stock have been or
contemporaneously are declared and paid or declared and a sum set apart
sufficient for such payment for all Dividend Periods ending on or prior
to the date of payment thereof, no dividend shall be declared or paid
or set aside for payment or other distribution declared or made upon
the Common Stock or upon any other Junior Securities (other than a
dividend or distribution paid in shares of, or warrants, rights or
options exercisable for or convertible into, Common Stock or any other
Junior Securities), nor shall any Common Stock nor any other Junior
Securities be redeemed, purchased or otherwise acquired for any
consideration, nor may any moneys be paid to or made available for a
sinking fund for the redemption of any shares of any such securities,
by the Corporation (other than redemptions and purchases pursuant to or
in accordance with agreements between the Corporation and its or its
subsidiaries' directors, officers and key employees), except by
conversion into or exchange for Junior Securities. Holders of the
shares of the Series A Preferred Stock shall not be entitled to any
dividends, whether payable in cash, stock or other property, in excess
of full cumulative dividends as provided in paragraph 3(a).
(c) Subject to the foregoing provisions of this paragraph (3)
and paragraph (4)(d), the Board of Directors may declare and the
Corporation may pay or set apart for payment dividends and other
distributions on any of the Junior Securities or Parity Securities, and
may redeem, purchase or otherwise acquire out of funds legally
available therefor any Junior
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<PAGE> 4
Securities, and the holders of the shares of the Series A Preferred
Stock shall not be entitled to share therein.
(d) Any dividend payment made on shares of the Series A
Preferred Stock shall first be credited against the earliest accrued
but unpaid dividend due with respect to shares of the Series A
Preferred Stock.
(e) All dividends paid with respect to shares of the Series A
Preferred Stock pursuant to this paragraph (3) shall be paid pro rata
to the holders entitled thereto.
(f) Holders of shares of the Series A Preferred Stock shall be
entitled to receive the dividends provided for in this paragraph (3) in
preference to and in priority over any dividends upon any of the Junior
Securities.
(4) Redemptions or Conversions.
(a) Automatic Conversion on Mandatory Conversion Date. Unless
earlier called for redemption in accordance with the provisions hereof,
at 5:00 p.m., Memphis, Tennessee time, on August 10, 1998 (the
"Mandatory Conversion Date"), each outstanding share of the Series A
Preferred Stock shall automatically, without any further notice to the
holders thereof, convert into:
(i) subject to paragraph (4)(b)(vii) and (4)(d)(iv), shares of
Common Stock at the Conversion Rate (determined as provided in
this paragraph (4)) in effect on the Mandatory Conversion Date;
and
(ii) the right to receive an amount in cash equal to all
accrued but unpaid dividends on such share of Series A
Preferred Stock to and including the Mandatory Conversion Date,
whether or not declared, out of funds legally available for the
payment of dividends (and dividends shall cease to accrue on
such share as of the Mandatory Conversion Date).
Subject to paragraphs 4(b)(i)(D), 4(b)(vii) and (4)(d)(iv), the
Corporation shall at all times reserve and keep available, free from preemptive
rights, out of the aggregate of its authorized but unissued Common Stock and its
issued Common Stock held in its treasury, for the purpose of effecting any
conversion of the Series A Preferred Stock pursuant to this paragraph (4), the
full
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<PAGE> 5
number of shares of Common Stock then deliverable upon any such conversion of
all outstanding shares of Series A Preferred Stock.
(b) Conversion Upon the Occurrence of Certain Events.
(i) If there shall occur a merger or consolidation of the
Corporation (or following the application of the terms of
paragraph 4(b)(i)(D), the Issuing Entity) (other than a merger
or consolidation of the Corporation (or following the
application of the terms of paragraph 4(b)(i)(D), the Issuing
Entity)) with or into a wholly owned subsidiary of the
Corporation (or following the application of the terms of
paragraph 4(b)(1)(D), the Issuing Entity) that results in the
conversion or exchange of Common Stock into, or into the right
to receive, other securities or other property (whether of the
Corporation or any other entity) ("Merger Consideration") (any
such merger or consolidation being referred to herein as a
"Merger or Consolidation"), then (subject to the following
provisions of this paragraph (4)(b) and paragraph 4(c)), each
outstanding share of the Series A Preferred Stock shall, at the
option of the Corporation:
(A)
(x) immediately prior to the Merger or
Consolidation, convert into, subject to
paragraphs (4)(b)(vii) and (4)(d)(iv), shares of
Common Stock at the Conversion Rate in effect
immediately prior to such Merger or
Consolidation; plus
(y) the right to receive an amount in cash equal
to all accrued and unpaid dividends on such share
of the Series A Preferred Stock to and including
the Settlement Date (as defined in paragraph
4(h)(v)), whether or not declared, out of funds
legally available therefor (and dividends shall
cease to accrue on such share as of the
Settlement Date); plus
(z) unless the Settlement Date is within the 60
days immediately before the Mandatory Conversion
Date, the right to receive an amount in cash
equal to $1.3175 per share per annum (computed on
the basis of a 360-day year of twelve 30-day
months) for the period commencing on the
Settlement Date and ending on and including the
Mandatory Conversion Date,
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<PAGE> 6
out of funds legally available therefor; provided that,
except upon the occurrence of an Early Transaction (as
defined in paragraph 4(h)(ix)), if the Redemption Price
(as defined in paragraph (4)(h)(ii)) on the Settlement
Date is less than the sum of (I) the product of (1) the
Current Market Price (as defined in paragraph
(4)(d)(vi)) of a share of Common Stock, with the last
Trading Date for determining such Current Market Price
being the second Trading Date immediately preceding the
Settlement Date (which Current Market Price shall be
appropriately adjusted for the purposes of this proviso
if the Corporation has made any antidilution adjustment
to the Conversion Rate pursuant to paragraph (4)(d) with
respect to an event which has not occurred as of such
Settlement Date) and (2) the number of shares of Common
Stock issuable upon conversion of a share of Series A
Preferred Stock pursuant to clause 4(b)(i)(A)(x) above,
and (II) the amount of cash to be received with respect
to an outstanding share of Series A Preferred Stock
pursuant to clause 4(b)(i)(A)(z) above, then the number
of shares of Common Stock issuable pursuant to clause
4(b)(i)(A)(x) above shall be reduced so that the sum
referred to above in this proviso equals the Redemption
Price on the Settlement Date, and provided, further,
that the Corporation may, at its option, deliver on the
Settlement Date, in lieu of some or all of the cash
consideration described in clauses 4(b)(i)(A)(y) and/or
(z) above, a number of shares of Common Stock (subject
to paragraphs 4(b)(vii) and (4)(d)(iv)) to be determined
by dividing the amount of cash consideration that the
Corporation has elected to pay in Common Stock by the
Current Market Price of the Common Stock determined as
of the second Trading Date immediately preceding the
Settlement Date (which Current Market Price shall be
appropriately adjusted for the purposes of this proviso
if the Corporation has made any antidilution adjustment
to the Conversion Rate pursuant to paragraph (4)(d) with
respect to an event which has not occurred as of such
Settlement Date). Notwithstanding the foregoing terms of
this paragraph 4(b)(i)(A), if there shall have occurred
an adjustment pursuant to paragraph (4)(d)(iv) as a
result of a conversion or exchange or merger or
consolidation referred to in such paragraph prior to the
Settlement Date, then with respect to the exercise of
any such option referred to in this paragraph 4(b)(i)(A)
(including the exercise of the option referred to in the
foregoing proviso by the Corporation (or its
successor)), the Corporation shall deliver on such
Settlement Date, in lieu of shares of Common Stock as
described in this paragraph 4(b)(i)(A), the kind of
securities or other property received by holders of
Common Stock as a result
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<PAGE> 7
of such conversion or exchange or merger or
consolidation, in the same relative proportions (if more
than one kind of securities or other property was so
received) as exist in the Conversion Rate on such
Settlement Date, with an aggregate market price
(determined for any security or other property, to the
extent possible, in the manner that the Current Market
Price is determined for the Common Stock, and otherwise
determined by the Board of Directors of the Corporation
(or its successor), whose determination shall be
conclusive), in such manner as they determine to be
appropriate as of such Settlement Date, equal to the
amount of cash consideration that the Corporation has
elected to pay in such securities or other property (the
option set forth in this paragraph 4(b)(i)(A) being
hereinafter referred to as the "Common Conversion
Option"); or
(B) be converted into the right to receive (at
the time such Merger Consideration is distributed to
holders of shares of Common Stock) in such Merger or
Consolidation (subject to provision being made therefor
in an applicable agreement with respect to such Merger
or Consolidation) in exchange for such share of Series A
Preferred Stock one share or other unit of a security
(whether debt or equity or any depositary receipt
representing such a security) (the "Issuing Entity
Preferred Stock") of the Issuing Entity (as defined in
paragraph 4(b)(ii)) having terms substantially
equivalent to the Series A Preferred Stock (except that
upon redemption or conversion such Issuing Entity
Preferred Stock shall convert into Issuing Entity Common
Equity (as defined in paragraph 4(b)(ii)) (the option
set forth in this paragraph 4(b)(i)(B) being hereinafter
referred to as the "Issuing Entity Preferred Stock
Conversion Option"); or
(C) be converted into the right to receive (at
the time such Merger Consideration is distributed to
holders of shares of Common Stock) in such Merger or
Consolidation (subject to provision being made therefor
in an applicable agreement with respect to such Merger
or Consolidation) in exchange for such share of Series A
Preferred Stock one share of a new series of Preferred
Stock of the Corporation ("New Preferred Stock") having
terms substantially equivalent to the Series A Preferred
Stock, except that upon redemption or conversion such
New Preferred Stock shall convert into Issuing Entity
Common Equity (the option set forth in this paragraph
4(b)(i)(C) being
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<PAGE> 8
hereinafter referred to as the "Corporation Preferred
Stock Conversion Option"); or
(D) remain outstanding after such Merger or
Consolidation, but only if the agreement with respect to
such Merger or Consolidation requires that following the
effective time of the Merger or Consolidation (a) upon
redemption or conversion of the Series A Preferred
Stock, in lieu of the Corporation delivering, out of
funds legally available therefor, shares of its Common
Stock, the Issuing Entity shall be obligated to deliver
Issuing Entity Common Equity directly to holders of the
Series A Preferred Stock, (b) the Issuing Entity shall
at all times be required or agree to reserve and keep
available, free from preemptive rights, out of the
aggregate of its authorized but unissued Issuing Entity
Common Equity and its issued common equity held in its
treasury, for the purpose of effecting any conversion of
the Series A Preferred Stock, the full number of shares
or other units of common equity deliverable upon any
such redemption or conversion of all outstanding shares
of Series A Preferred Stock, (c) the Issuing Entity
shall have the right to redeem the Series A Preferred
Stock and to cause the exchange of the Series A
Preferred Stock for its Issuing Entity Common Equity
upon such redemption and (d) the Corporation shall
relinquish the right to redeem the Series A Preferred
Stock and its obligations upon conversion of the Series
A Preferred Stock. In such event, from and after such
effective time, (x) holders of shares of Series A
Preferred Stock will no longer have any right to receive
any consideration from the Corporation upon redemption
or conversion of the Series A Preferred Stock, (y) all
references in this paragraph (4) to Common Stock shall
thereafter mean Issuing Entity Common Equity and (z) the
Corporation may amend this Certificate of Designation to
make any incidental and conforming modifications to
reflect the provisions contained in this paragraph
4(b)(i)(D) (the option set forth in this paragraph
4(b)(i)(D) being hereinafter referred to as the
"Existing Preferred Stock Option").
Whether the Issuing Entity Preferred Stock or the New Preferred Stock
has terms substantially equivalent to the Series A Preferred Stock will be
determined by the Board of Directors of the Corporation (or its successor),
whose determination shall be conclusive, in such manner as they determine to be
appropriate; provided that if the Corporation elects the Issuing Entity
Preferred Stock Conversion Option and the Issuing Entity is not a corporation or
other entity organized under the laws of the United States or any State thereof
or the District of Columbia (a "non-U.S. entity"),
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<PAGE> 9
the Issuing Entity Preferred Stock may be considered substantially equivalent to
the Series A Preferred Stock notwithstanding that, among other things, (i) a
holder of Issuing Entity Preferred Stock is not entitled to the dividends
received deduction under Section 243 or Section 245 of the Internal Revenue Code
of 1986, as amended (the "Code"), (ii) the tax treatment of a holder of Issuing
Entity Preferred Stock differs from the tax treatment of a holder of Series A
Preferred Stock, including by reason of future changes in U.S. law, (iii) the
Issuing Entity Preferred Stock does not provide voting rights to the holders
thereof to the same extent as the Series A Preferred Stock, so long as the
Issuing Entity Preferred Stock provides voting rights to the extent permitted by
the law applicable to such securities, (iv) the Issuing Entity Preferred Stock
does not provide that any or all cash payments will be made in U.S. dollars so
long as such payments may not be made in U.S. dollars under applicable law,
provided that the amount of currency other than U.S. dollars (the "Foreign
Currency") payable on any given date is adjusted (by reference to the noon U.S.
dollar buying rate for the Foreign Currency for cable transfers quoted in the
City of New York on the business day next preceding such payment, as certified
for customs purposes by the Federal Reserve Bank of New York) to equal the
number of U.S. dollars which would have been payable on such date if payment had
been permitted to be made in U.S. dollars, (v) the Issuing Entity is prohibited
by its certificate of incorporation or by-laws (or equivalent constituent
documents) or by the laws of the jurisdiction of its establishment from issuing
Issuing Entity Preferred Stock that automatically converts into Issuing Entity
Common Equity, so long as the terms of such Issuing Entity Preferred Stock (or
other agreements relating thereto) provide for conversion into Issuing Entity
Common Equity not later than the same date as such automatic conversion would
have occurred and in a manner which gives a holder thereof substantially the
same rights as if such Issuing Entity Preferred Stock had automatically
converted or (vi) the Issuing Entity is prohibited by its certificate of
incorporation or by-laws (or equivalent constituent documents) or by the laws of
the jurisdiction of its establishment from issuing such Issuing Entity Preferred
Stock with a liquidation preference subject to adjustment as set forth in
paragraph 5 hereof. The Corporation will not elect the Issuing Entity
Preferred Stock Conversion Option if the Issuing Entity is a non-U.S. entity,
unless provision is made in the Issuing Entity Preferred Stock to gross up the
amount paid to U.S. persons who supply appropriate certification that they are
U.S. persons in respect of any withholding taxes imposed thereon.
The Corporation's right to elect the Corporation Preferred Stock
Conversion Option and the Existing Preferred Stock Option is subject to the
conditions that (1) the Corporation shall survive as a subsidiary of the Issuing
Entity and (2) the Issuing Entity shall have common equity which is publicly
traded immediately after the effectiveness of the Merger or Consolidation.
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<PAGE> 10
(ii) Notwithstanding the Corporation's election of the Issuing
Entity Preferred Stock Conversion Option, the Corporation
Preferred Stock Conversion Option or the Existing Preferred
Stock Option, if the Merger Consideration (excluding
consideration in connection with fractional shares or the
exercise of appraisal rights) consists of both common equity
(or any depository receipts representing such common equity) of
the entity issuing such Merger Consideration (which may be a
U.S. or non-U.S. entity) (the "Issuing Entity") in the Merger
or Consolidation ("Issuing Entity Common Equity") and property
which is not Issuing Entity Common Equity ("Non-Common Equity
Merger Consideration"), then, in addition to having the rights
arising out of the Corporation's election of one of the
foregoing options, such holder shall be entitled to receive, at
the time such Merger Consideration is distributed to holders of
Common Stock, an amount of Non-Common Equity Merger
Consideration equal to the amount of Non-Common Equity Merger
Consideration that such holder would have been entitled to
receive in the Merger or Consolidation had (A) such holder's
Series A Preferred Stock been converted into shares of Common
Stock at the Conversion Rate in effect immediately prior to the
Merger or Consolidation and (B) such shares of Common Stock
been exchanged in the Merger or Consolidation for the amount of
Merger Consideration which would have given a holder the
maximum possible number of shares of Issuing Entity Common
Equity pursuant to the agreement applicable to such Merger or
Consolidation with respect to a share of Common Stock; provided
that, if the Redemption Price on the Settlement Date is less
than the fair value of such Non-Common Equity Merger
Consideration per share of Series A Preferred Stock (as
determined by the Board of Directors of the Corporation, whose
determination shall be conclusive) as of the Settlement Date
(the "Non-Common Equity Fair Value"), then the amount of
Non-Common Equity Merger Consideration that a holder of Series
A Preferred Stock shall be entitled to receive with respect to
each share of Series A Preferred Stock will be reduced so that
the Non-Common Equity Fair Value thereof equals the Redemption
Price on the Settlement Date.
(iii) If the Corporation elects the Issuing Entity Preferred
Stock Conversion Option or the Corporation Preferred Stock
Conversion Option, the initial conversion rate on the Issuing
Entity Preferred Stock or the New Preferred Stock, as the case
may be, shall be equal to the Conversion Rate on the Series A
Preferred Stock in effect immediately prior to the Merger or
Consolidation adjusted to reflect the ratio by which one share
of Common Stock is exchanged for shares of Issuing Entity
Common Equity in the Merger or Consolidation, and if the
Corporation elects the Existing Preferred Stock Option, the
Conversion Rate on the Series A Preferred Stock
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<PAGE> 11
immediately following the Merger or Consolidation shall be
equal to the Conversion Rate on the Series A Preferred Stock in
effect immediately prior to the Merger or Consolidation
adjusted to reflect the ratio by which one share of Common
Stock is exchanged for shares of Issuing Entity Common Equity
in the Merger or Consolidation.
(iv) If the Corporation fails to elect any of the options set
forth in paragraph 4(b)(i) prior to the 30th day prior to the
date of effectiveness of the Merger or Consolidation, then the
Corporation shall be deemed to have elected the Common
Conversion Option.
(v) Notwithstanding the foregoing provisions of this paragraph
4(b), if the Corporation elects any of the options set forth in
paragraph 4(b)(i)(B), (C) or (D) each holder of a share of
Series A Preferred Stock will have the right (the "Holder
Opt-Out Right") to elect that, in lieu of such holder's shares
of Series A Preferred Stock being subject to the Issuing Entity
Preferred Stock Conversion Option, the Corporation Preferred
Stock Conversion Option or the Existing Preferred Stock Option,
as the case may be, each share of Series A Preferred Stock held
by such holder will convert, in whole (but not in part),
immediately prior to the effectiveness of the Merger or
Consolidation into:
(A) subject to paragraphs (4)(b)(vii) and
(4)(d)(iv), shares of Common Stock at the Conversion
Rate in effect immediately prior to such Merger or
Consolidation (provided that, except upon the occurrence
of an Early Transaction, if the product of (x) the
Current Market Price of a share of Common Stock on the
Settlement Date (which Current Market Price shall be
appropriately adjusted for the purposes of this proviso
if the Corporation has made any antidilution adjustment
to the Conversion Rate pursuant to paragraph (4)(d) with
respect to an event which has not occurred as of such
Settlement Date) and (y) the number of shares of Common
Stock issuable upon conversion of a share of Series A
Preferred Stock pursuant to the Holder Opt Out Right
exceeds the Redemption Price, then the number of shares
of Common Stock issuable pursuant to the Holder Opt-Out
Right shall be reduced so that product referred to above
equals the Redemption Price); plus
(B) the right to receive an amount in cash equal
to all accrued but unpaid dividends on the Series A
Preferred Stock to and including the Settlement Date,
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<PAGE> 12
whether or not declared, out of funds legally available
for the payment of dividends (and dividends shall cease
to accrue on such share as of the Settlement Date);
provided that the Corporation may, at its option, deliver on
the Settlement Date, in lieu of some or all of the cash
consideration described in clause (B), a number of shares of
Common Stock (subject to paragraphs 4(b)(vii) and (4)(d)(iv))
to be determined by dividing the amount that the Corporation
has elected to pay in Common Stock by the Current Market Price
of the Common Stock determined as of the second Trading Date
preceding the Settlement Date (which Current Market Price shall
be appropriately adjusted for the purposes of this proviso if
the Corporation has made any antidilution adjustment to the
Conversion Rate pursuant to paragraph (4)(d) with respect to an
event which has not occurred as of such Settlement Date).
Notwithstanding the foregoing terms of this paragraph 4(b)(v),
if there shall have occurred an adjustment pursuant to
paragraph (4)(d)(iv) as a result of a conversion or exchange or
merger or consolidation referred to in such paragraph prior to
the Settlement Date, then with respect to the exercise of any
such option referred to in this paragraph 4(b)(v) (including
the exercise of the option referred to in the foregoing proviso
by the Corporation (or its successor)), the Corporation shall
deliver on such Settlement Date, in lieu of shares of Common
Stock as described in this paragraph 4(b)(v), the kind of
securities or other property received by holders of Common
Stock as a result of such conversion or exchange or merger or
consolidation, in the same relative proportions (if more than
one kind of securities or other property was so received) as
exist in the Conversion Rate on such Settlement Date, with an
aggregate market price (determined for any security or other
property, to the extent possible, in the manner that the
Current Market Price is determined for the Common Stock, and
otherwise determined by the Board of Directors of the
Corporation (or its successor), whose determination shall be
conclusive), as of such Settlement Date, equal to the amount of
cash consideration that the Corporation has elected to pay in
such securities or other property.
(vi) In order to exercise the Holder Opt-Out Right, a holder of
Series A Preferred Stock shall (a) deliver a properly completed
and duly executed written notice of election to convert,
specifying the name or names in which such holder wishes the
certificate or certificates for shares of Common Stock (subject
to paragraphs 4(b)(vii) and (4)(d)(iv)) to be issued to the
Corporation at its principal office or at the office of the
agency which may be maintained for such purpose (the
"Conversion Agent") at
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<PAGE> 13
least one business day prior to the effectiveness of the Merger
or Consolidation, (b) surrender the certificate for such shares
of Series A Preferred Stock to the Corporation or the
Conversion Agent, accompanied, if so required by the
Corporation or the Conversion Agent, by a written instrument or
instruments of transfer in form reasonably satisfactory to the
Corporation or the Conversion Agent duly executed by the holder
or his attorney duly authorized in writing, and (c) pay any
transfer or similar tax required to be paid by such holder
pursuant to paragraph 4(m). Conversion shall be deemed to have
been effected immediately prior to the effective time of the
Merger or Consolidation. Immediately upon conversion, the
rights of the holders of converted shares of Series A Preferred
Stock shall cease and the persons entitled to receive the
shares of Common Stock (subject to paragraphs 4(b)(vii) and
(4)(d)(iv)) upon the conversion of such shares of Series A
Preferred Stock shall be treated for all purposes as having
become the beneficial owners of such shares of Common Stock
(subject to paragraphs 4(b)(vii) and (4)(d)(iv)).
(vii) If there shall occur a Merger or Consolidation of the
Corporation and the Corporation elects the Existing Preferred
Stock Option, then (A) the Series A Preferred Stock will, from
and after the effective time of the Merger or Consolidation, no
longer be subject to conversion into shares of Common Stock
pursuant to paragraphs (4)(a), (4)(b) and 4(c), but instead
will be subject to conversion into Issuing Entity Common Equity
and (B) in such event, from and after the effective time of the
Merger or Consolidation, the number of such shares of Issuing
Entity Common Equity so issuable upon conversion of the shares
of Series A 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 the shares of
Common Stock contained in paragraphs 4(b)(iii) and (4)(d).
(c) Right to Call for Redemption. Except during any period
beginning on (a) the earlier to occur of (1) the date on which the
Corporation enters into a definitive agreement to engage in an Early
Transaction and (2) the date on which the Corporation publicly
announces its intention to engage in an Early Transaction, and ending
on (b) the earlier to occur of (1) the consummation of any such Early
Transaction and (2) the first anniversary of the date of issuance of
the Preferred Stock, at any time and from time to time prior to the
Mandatory Conversion Date, the Corporation (or following the
application of the terms of paragraph 4(b)(i)(D), the Issuing Entity)
shall have the right to call, in whole or in part, the outstanding
shares of the Series A Preferred Stock for redemption (subject to the
notice provisions set forth in paragraph (4)(i)). Upon the redemption
date, the Corporation (or
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<PAGE> 14
following the application of the terms of paragraph 4(b)(i)(D), the
Issuing Entity) shall deliver to the holders thereof in exchange for
each such share called for redemption, (i) a number of shares of Common
Stock (subject to paragraphs 4(b)(vii) and (4)(d)(iv)) equal to the
Redemption Price in effect on the redemption date divided by the
Current Market Price of the Common Stock determined as of the second
Trading Date immediately preceding the Notice Date (as defined in
paragraph 4(h)(iv)) and (ii) an amount in cash equal to all accrued but
unpaid dividends on such share of Series A Preferred Stock to and
including the redemption date (and dividends shall cease to accrue on
such share as of such redemption date), whether or not declared, out of
funds legally available therefor; provided that if there shall have
occurred an adjustment pursuant to paragraph (4)(d)(iv) as a result of
a conversion or exchange or merger or consolidation referred to in such
paragraph prior to the redemption date, the Corporation (or following
the application of the terms of paragraph 4(b)(i)(D), the Issuing
Entity) shall deliver on the redemption date to the holders of shares
of Series A Preferred Stock in exchange for each share thereof called
for redemption, in lieu of shares of Common Stock as described in
paragraph (4)(c)(i), the kind of securities or other property received
by holders of Common Stock as a result of such conversion or exchange
or merger or consolidation, in the same relative proportions (if more
than one kind of securities or other property was so received) as exist
in the Conversion Rate on the redemption date, with an aggregate market
price (determined for any security or other property, to the extent
possible, in the manner that the Current Market Price is determined for
the Common Stock, and otherwise determined by the Board of Directors of
the Corporation (or its successor), whose determination shall be
conclusive), as of the second Trading Date immediately preceding the
Notice Date, equal to the Redemption Price in effect on the redemption
date; and provided further that the Corporation may, at its option,
deliver in lieu of some or all of the shares of Common Stock or other
securities described in clause (c)(i) above, cash in an amount
determined by multiplying the number of shares of Common Stock (or
other securities, adjusted as provided herein) that the Corporation has
elected to pay in cash by the Current Market Price of the Common Stock
determined as of the second Trading Date immediately preceding the
Notice Date. If fewer than all the outstanding shares of Series A
Preferred Stock are to be called for redemption, shares to be redeemed
shall be selected by the Corporation (or following the application of
the terms of paragraph 4(b)(i)(D), the Issuing Entity) from outstanding
shares of Series A Preferred Stock not previously redeemed by lot or
pro rata (as nearly as may be practicable without creating fractional
shares) or by any other method determined by the Board of Directors of
the Corporation (or following the application of the terms of paragraph
4(b)(i)(D), the Issuing Entity) in its sole discretion to be equitable.
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<PAGE> 15
(d) Conversion Rate; Adjustments. The Conversion Rate to be
used to determine the number of shares of Common Stock to be delivered
on the conversion of the Series A Preferred Stock into shares of Common
Stock pursuant to paragraph (4)(a) or (b) shall be initially one share
of Common Stock for each share of Series A Preferred Stock; provided,
however, that such Conversion Rate shall be subject to adjustment from
time to time as provided in paragraph 4(b)(iii) and in this paragraph
(4)(d). All adjustments to the Conversion Rate shall be calculated to
the nearest 1/1000th of a share of Common Stock. Such rate in effect at
any time is herein called the "Conversion Rate."
(i) If the Corporation (or following the application of the
terms of paragraph 4(b)(i)(D), the Issuing Entity) shall:
A) pay a dividend or make a distribution with respect to
Common Stock in shares of Common Stock,
(B) subdivide or split 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 shares of Common
Stock any shares of common stock of the Corporation,
then, in any such event, the Conversion Rate in effect immediately prior thereto
shall be adjusted so that the holder of a share of the Series A Preferred Stock
shall be entitled to receive on the conversion of such share of the Series A
Preferred Stock, the number of shares of Common Stock (or following the
application of the terms of paragraph 4(b)(i)(D), the Issuing Entity) which such
holder would have owned or been entitled to receive after the happening of any
of the events described above had such share of the Series A Preferred Stock
been converted at the Conversion Rate in effect immediately prior to such event
or any record date with respect thereto. Such adjustment shall become effective
as of the close of business on the record date for determination of stockholders
entitled to receive such dividend or distribution in the case of a dividend or
distribution, and shall become effective immediately after the effective date in
case of a subdivision, split, combination or reclassification; and any shares of
Common Stock issuable in payment of a dividend shall be deemed to have been
issued immediately prior to the close of business on the record date for such
dividend for purposes of calculating the number of outstanding shares of
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<PAGE> 16
Common Stock under clause (ii) below. Each adjustment made pursuant to this
paragraph 4(d)(i) shall be made successively.
(ii) If the Corporation (or following the application of the
terms of paragraph 4(b)(i)(D), the Issuing Entity) shall, after
the date hereof, issue rights or warrants to all holders of its
Common Stock entitling them (for a period not exceeding 45 days
from the date of such issuance) to subscribe for or purchase
shares of Common Stock at a price per share less than the
Current Market Price of the Common Stock (determined pursuant
to paragraph (4)(d)(vi)) on the record date for the
determination of stockholders entitled to receive such rights
or warrants, then in each case the Conversion Rate shall be
adjusted by multiplying the Conversion Rate in effect
immediately prior to the date of issuance of such rights 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 or warrants, immediately prior to such
issuance, plus the number of additional shares of Common Stock
offered for subscription or purchase pursuant to such rights or
warrants, and of which the denominator shall be the number of
shares of Common Stock outstanding on the date of issuance of
such rights or warrants, immediately prior to such issuance,
plus the number of shares of Common Stock which the aggregate
offering price of the total number of shares of Common Stock so
offered for subscription or purchase pursuant to such rights or
warrants would purchase at such Current Market Price
(determined by multiplying such total number of shares by the
exercise price of such rights or warrants and dividing the
product so obtained by such Current Market Price). Such
adjustment shall become effective as of the close of business
on the record date for the determination of stockholders
entitled to receive such rights or warrants. To the extent that
shares of Common Stock are not delivered after the expiration
of such rights or warrants, the Conversion Rate shall be
readjusted to the Conversion Rate which would then be in effect
had the adjustments made upon the issuance of such rights or
warrants been made upon the basis of delivery of only the
number of shares of Common Stock actually delivered. Each
adjustment made pursuant to this paragraph 4(d)(ii) shall be
made successively.
(iii) If the Corporation (or following the application of the
terms of paragraph 4(b)(i)(D), the Issuing Entity) shall pay a
dividend or make a distribution to all holders of its Common
Stock of evidence of its indebtedness, other securities
(including shares of capital stock of the Corporation other
than Common Stock, and including shares of capital stock of any
subsidiary of the Corporation) or other assets,
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<PAGE> 17
but excluding all cash dividends and distributions and any
dividends or distributions referred to in paragraph 4(d)(i)
hereof, or shall issue to all holders of its Common Stock
rights or warrants to subscribe for or purchase any of its
securities (other than those referred to in paragraph
(4)(d)(ii) above), then, at the option of the Corporation (or
following the application of the terms of paragraph 4(b)(i)(D),
the Issuing Entity), the Corporation (or following the
application of the terms of paragraph 4(b)(i)(D), the Issuing
Entity) will either:
(1) adjust the Conversion Rate by multiplying the
Conversion Rate in effect on the record date for such
distribution by a fraction, of which the numerator shall
be the Current Market Price per share of the Common
Stock on the record date for the determination of
stockholders entitled to receive such dividend or
distribution, and of which the denominator shall be such
Current Market Price per share of Common Stock less the
fair value (as determined by the Board of Directors of
the Corporation (or following the application of the
terms of paragraph 4(b)(i)(D), the Issuing Entity) in
such manner as it determines to be appropriate, whose
determination shall be conclusive) as of such record
date of the portion of the securities or assets so
distributed or of such rights or warrants applicable to
one share of Common Stock (the "Distribution Fair
Value") (provided that the Corporation shall not be
permitted to elect the option described in this clause
(1) if such determination of fair value by the Board of
Directors of the Corporation (or following the
application of the terms of paragraph 4(b)(i)(D), the
Issuing Entity) applicable to one share of Common Stock
is greater than or equal to 95% of such Current Market
Price per share of Common Stock, in each case as of such
record date), or
(2) distribute, at the time such dividend, distribution
or issuance is made to holders of the Common Stock, to
each holder of Series A Preferred Stock as of the record
date for the determination of the holders of Common
Stock entitled to receive such dividend, distribution or
issuance, the kind and amount of such securities or
assets of the Corporation (or following the application
of the terms of paragraph 4(b)(i)(D), the Issuing
Entity) as such holder would have been entitled to
receive had the shares of Series A Preferred Stock held
by such holder been converted into shares of Common
Stock immediately prior to the record date for such
dividend or distribution.
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<PAGE> 18
(iv) If there shall occur a conversion or exchange of the
Common Stock into, or into the right to receive, other
securities or other property of the Corporation (or following
the application of the terms of paragraph 4(b)(i)(D), the
Issuing Entity) or a wholly owned subsidiary of the Corporation
(or following the application of the terms of paragraph
4(b)(i)(D), the Issuing Entity) (in each case other than in
connection with a Merger or Consolidation) or if there shall
occur a merger or consolidation of the Corporation (or
following the application of the terms of paragraph 4(b)(i)(D),
the Issuing Entity) with or into a wholly owned subsidiary of
the Corporation (or following the application of the terms of
paragraph 4(b)(i)(D), the Issuing Entity) that results in the
conversion or exchange of the Common Stock into, or the right
to receive, other securities or other property (whether of the
Corporation (or following the application of the terms of
paragraph 4(b)(i)(D), the Issuing Entity) or any other entity),
then the Series A Preferred Stock will thereafter no longer be
subject to conversion or redemption into shares of Common Stock
pursuant to paragraphs (4)(a), (4)(b) and 4(c), but instead
will be subject to conversion or redemption into the kind and
amount of securities or other property which the holder of such
shares of Series A Preferred Stock would have owned immediately
after such conversion or exchange or merger or consolidation if
such shares of Series A Preferred Stock had been converted or
redeemed into shares of Common Stock immediately before the
effective time of such conversion or exchange or merger or
consolidation. If this paragraph (4)(d)(iv) applies, then no
adjustment in respect of the same conversion or exchange or
merger or consolidation shall be made pursuant to the other
provisions of this paragraph (4)(d). In the event that at any
time, as a result of an adjustment made pursuant to this
paragraph (4)(d)(iv), the Series A Preferred Stock shall become
subject to conversion or redemption into any securities other
than shares of Common Stock, thereafter the number of such
other securities so issuable upon conversion or redemption of
the shares of Series A 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 the
shares of Series A Preferred Stock contained in this paragraph
(4)(d).
(v) Anything in this paragraph (4) notwithstanding, the
Corporation shall be entitled to make such adjustments in the
Conversion Rate, in addition to those required by this
paragraph (4), as the Corporation in its sole discretion may
determine to be advisable, in order that any stock dividends,
subdivision of shares, distribution of rights to purchase stock
or securities, or a distribution of securities convertible into
or exchangeable for stock (or any transaction which could be
treated as any of the
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<PAGE> 19
foregoing transactions pursuant to Section 305 of the Internal
Revenue Code of 1986, as amended) hereafter made by the
Corporation to its stockholders shall not be taxable. If the
Corporation determines that an adjustment to the Conversion
Rate should be made pursuant to this paragraph (4)(d)(v), an
adjustment shall be made effective as of such date as is
determined by the Board of Directors of the Corporation. The
determination of the Board of Directors of the Corporation as
to whether an adjustment to the Conversion Rate should be made
pursuant to the foregoing provisions of this paragraph
(4)(d)(v), and, if so, as to what adjustment should be made and
when, shall be conclusive, final and binding on the Corporation
and all stockholders of the Corporation.
(vi) As used in this paragraph (4), the "Current Market Price"
of a share of Common Stock on any date shall be, except as
otherwise specifically provided, the average of the daily
Closing Prices (as defined in paragraph 4(h)(iii)) for the 20
consecutive Trading Dates ending on and including the date of
determination of the Current Market Price; provided, however,
that with respect to any redemption, conversion or antidilution
adjustment if any event that results in an adjustment of the
Conversion Rate occurs during the period beginning on the
first day of the applicable determination period and ending on
the applicable redemption or conversion date, the Current
Market Price as determined pursuant to the foregoing will be
appropriately adjusted to reflect the occurrence of such event.
(vii) In any case in which paragraph (4)(d) shall require that
an adjustment as a result of any event become effective as of
the close of business on the record date and the date fixed for
conversion pursuant to paragraph (4)(a), 4(b) and 4(c) occurs
after such record date, but before the occurrence of such event
the Corporation may in its sole discretion elect to defer the
following until after the occurrence of such event: (A) issuing
to the holder of any converted shares of the Series A Preferred
Stock the additional shares of Common Stock issuable upon such
conversion before giving effect to such adjustment and (B)
paying to such holder any amount in cash in lieu of a
fractional share of Common Stock pursuant to paragraph (4)(f).
(viii) Before taking any action which, if taken, would result
in an adjustment to the Conversion Rate that would cause the
Corporation (or following the application of the terms of
paragraph 4(b)(i)(D), the Issuing Entity) to issue shares of
Common Stock for consideration below the then par value (if
any) of the Common Stock issuable upon conversion of the Series
A Preferred Stock, the Corporation (or following the
application of the terms of paragraph 4(b)(i)(D), the Issuing
Entity) will take any corporate action which may, in the
opinion of its counsel, be necessary in order that the
Corporation (or following the
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<PAGE> 20
application of the terms of paragraph 4(b)(i)(D), the Issuing
Entity) may validly and legally issue fully paid and
nonassessable shares of such Common Stock at such adjusted
Conversion Rate.
(e) Notice of Adjustments. Whenever the Conversion Rate is
adjusted as herein provided, the Corporation shall:
(i) forthwith compute the adjusted Conversion Rate in
accordance with this paragraph (4) and prepare a certificate
signed by the Chief Financial Officer, any Vice President, the
Treasurer or Controller of the Corporation setting forth the
adjusted Conversion Rate, the method of calculation thereof in
reasonable detail and the facts requiring such adjustment and
upon which such adjustment is based, which certificate shall be
conclusive, final and binding evidence of the correctness of
the adjustment, and file such certificate forthwith with the
transfer agent or agents for the Series A Preferred Stock and
the Common Stock; and
(ii) mail a notice stating that the Conversion Rate has been
adjusted, the facts requiring such adjustment and the facts
upon which such adjustment is based and setting forth the
adjusted Conversion Rate to the holders of record of the
outstanding shares of the Series A Preferred Stock within 45
days after the last day of the fiscal quarter during which the
facts requiring such adjustment occurred.
(f) No Fractional Shares. (i) No fractional shares or scrip
representing fractional shares of Common Stock or other kind of
security shall be issued upon the redemption or conversion of any
shares of Series A Preferred Stock. Instead of any fractional interest
in a share of Common Stock which would otherwise be deliverable upon
the conversion of a share of Series A Preferred Stock, the Corporation
shall either (A) pay to the holder of such share (a "Fractional
Shareholder") an amount in cash (computed to the nearest cent) equal to
the same fraction of the Current Market Price of the Common Stock
determined as of the second Trading Date immediately preceding the
Settlement Date, Conversion Date or relevant Notice Date, as the case
may be, or (B) follow the procedures set forth in paragraph (f)(ii). If
more than one share of Series A 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 number of shares of Series A
Preferred Stock so surrendered.
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(ii) The Corporation may, in lieu of paying cash to Fractional
Shareholders as provided in paragraph (f)(i), issue, in full
payment of the Corporation's obligation with respect to such
fractional interests, shares of stock equal to the aggregate of
such fractional interests of such Fractional Shareholder and
other Fractional Shareholders (aggregated over a reasonable
period of time, but not in any event more than 20 business
days, and rounded upwards to the nearest whole share) to an
agent (the "Transfer Agent") appointed by the Corporation for
such Fractional Shareholders for sale promptly by the Transfer
Agent on behalf of the Fractional Shareholders. The Transfer
Agent will remit promptly to such Fractional Shareholders their
proportionate interest in the net proceeds (following the
deduction of applicable transaction costs and computed to the
nearest cent) from such sale.
(g) Cancellation. Shares of Series A Preferred Stock that have
been issued and reacquired by the Corporation in any manner, including
shares purchased, exchanged, redeemed or converted, shall not be
reissued as part of the Series A Preferred Stock and shall (upon
compliance with any applicable provisions of the laws of the State of
Delaware) have the status of authorized and unissued shares of the
class of Preferred Stock undesignated as to series and may be
redesignated and reissued as part of any series of the Preferred Stock.
(h) Definitions. As used in this paragraph (4):
(i) the term "business day" shall mean any day other than a
Saturday, Sunday or a day on which banking institutions in the
State of New York or the State of Tennessee are authorized or
obligated by law or executive order to close; provided that,
from and after the effective time of a Merger or Consolidation
in connection with which the Corporation elects the Existing
Preferred Stock Option, the term "business day" shall mean any
day other than a Saturday, Sunday or a day on which banking
institutions in the State of New York and in the place where
the Issuing Entity has its headquarters or principal place of
business are authorized by law to close;
(ii) the term "Redemption Price" shall mean the per share price
at which the Corporation (or following the application of the
terms of paragraph 4(b)(i)(D), the Issuing Entity) may redeem
shares of Series A Preferred Stock, which shall be equal to the
sum of (a) $22.475 and (b) unless redeemed during the 60 days
immediately before the Mandatory Conversion Date, an amount
equal to $1.3175 per share per annum (computed on the basis of
a 360-day year of twelve 30-day months) for the period
commencing on the date of redemption and ending on and
including the
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Mandatory Conversion Date; provided that if the Corporation (or
following the application of the terms of paragraph 4(b)(i)(D),
the Issuing Entity) distributes shares or other units of
securities or assets as described in paragraph 4(d)(iii)(2) or
if Non-Common Equity Merger Consideration is distributed in
connection with a Merger or Consolidation, then from and after
the close of business on the record date related to such
distribution, the Redemption Price per share for any day shall
be reduced, in the case of a distribution described in
paragraph 4(d)(iii)(2), by the Distribution Fair Value of such
shares or other units of securities or assets, and, in the case
of a distribution of Non Common Equity Merger Consideration, by
the amount of the Fair Value of such Non-Common Equity Merger
Consideration; provided further that in no event shall the
effect of the foregoing proviso be to reduce the Redemption
Price per share to an amount less than $.01;
(iii) the term "Closing Price" on any day shall mean the
closing sale price, regular way (with any relevant due bills
attached), on such day, or in case no such sale takes place on
such day, the average of the reported closing bid and asked
prices, regular way (with any relevant due bills attached), in
each case on the New York Stock Exchange Consolidated Tape (or
any successor composite tape reporting transactions on national
securities exchanges), or, if the Common Stock is not listed or
admitted to trading on such Exchange, on the principal national
securities exchange on which the Common Stock is listed or
admitted to trading (which shall be the national securities
exchange on which the greatest number of shares of Common Stock
has been traded during the five consecutive Trading Dates
ending on and including the date of determination of the
Current Market Price), or, if not listed or admitted to trading
on any national securities exchange, the average of the closing
bid and asked prices, regular way (with any relevant due bills
attached), of the Common Stock on the over-the-counter market
on the day in question as reported by the National Association
of Securities Dealers Automated Quotation System ("NASDAQ"), or
a similarly generally accepted reporting service, or if not so
available as determined in good faith by the Board of
Directors, on the basis of such relevant factors as the Board
of Directors in good faith considers, in its reasonable
judgment to be appropriate. Notwithstanding the foregoing, from
and after the effective time of a Merger or Consolidation in
connection with which the Corporation elects the Existing
Preferred Stock Option, if the Issuing Entity Common Equity is
not trading on the New York Stock Exchange (or other national
securities exchange or reported on NASDAQ as described above),
"Closing Price" shall be (i) determined by reference to the
principal trading market on which the Issuing Entity Common
Equity is traded and (ii) converted, if necessary,
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<PAGE> 23
into U.S. dollars by reference to the spot rate at noon local
time in the relevant market at which, in accordance with the
normal banking procedures, U.S. dollars could be purchased with
the currency in which the Closing Price is denominated from
major banks located in New York City or London, England;
(iv) the term "Notice Date" with respect to any notice given by
the Corporation (or following the application of the terms of
paragraph 4(b)(i)(D), the Issuing Entity) in connection with a
redemption or conversion of any of the Series A Preferred Stock
shall be earlier of (a) the commencement of the mailing of such
notice to the holders of the Series A Preferred Stock or (b)
the date on which notice is published in The Wall Street
Journal, The New York Times or other newspaper of general
circulation in the Borough of Manhattan, New York, in either
case in accordance with paragraph (4)(i);
(v) the term "Settlement Date" shall mean the effective date of
a Merger or Consolidation;
(vi) the term "Trading Date" shall mean a date on which the New
York Stock Exchange (or any successor to such Exchange) is open
for the transaction of business. Notwithstanding the foregoing,
from and after the effective time of a Merger or Consolidation
in connection with which the Corporation elects the Existing
Preferred Stock Option, if the Issuing Entity Common Equity is
not traded on the New York Stock Exchange (or other national
securities exchange or reported on NASDAQ as described under
paragraph 4(h)(iii)), "Trading Date" shall be determined by
reference to the principal trading market on which the Issuing
Entity Common Equity is traded.
(vii) the term "affiliate" shall have the meaning set forth in
Rule 12b-2 promulgated under the Securities Exchange Act of
1934, as amended.
(viii) the term "U.S. person" shall mean any citizen or
resident of the United States and any domestic corporation,
partnership, limited liability company, estate or trust.
(ix) the term "Early Transaction" shall mean a Merger or
Consolidation that is consummated on or before the first
anniversary of the date of issuance of the Series A Preferred
Stock.
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<PAGE> 24
(i) Notice of Redemption or Conversion. The Corporation will
provide notice of (i) any redemption or conversion (other than
conversion on the Mandatory Conversion Date pursuant to paragraph 4(a))
of shares of Series A Preferred Stock to holders of record of the
Series A Preferred Stock to be called or converted not less than 30 nor
more than 60 days prior to the date fixed for such redemption or
conversion, as the case may be, and (ii) the election of any of the
options set forth in paragraph 4(b)(i) to the holders of record of the
Series A Preferred Stock at least 30 days prior to the anticipated
effective date of the Merger or Consolidation; provided, however, that
if the timing or effectiveness of a Merger or Consolidation makes it
impracticable for the Corporation to provide such notice at least 30
days prior to the anticipated effective date thereof, then the
Corporation shall provide such notice as promptly as may be practicable
prior to the effectiveness of such Merger or Consolidation, and
provided, further, that the Corporation shall be under no obligation to
notify any holder of any extension of such effective date. Such notice
shall be provided by publishing a notice in The Wall Street Journal,
New York Times or other newspaper of general circulation in the Borough
of Manhattan, New York, and by mailing notice of such redemption or
conversion first class postage prepaid, to each holder of record of the
Series A Preferred Stock, at such holder's address as it appears on the
stock register of the Corporation. The Corporation shall endeavor to
commence the mailing of notice of any such redemption, conversion or
election not later than three business days after publishing any such
notice in any such newspaper. No failure to give such notice nor any
defect therein shall affect the validity of the proceeding for the
redemption or conversion of any shares of Series A Preferred Stock to
be redeemed or converted except as to the holder to whom the
Corporation has failed to give said notice or except as to the holder
whose notice was defective. Each such notice shall state, as
appropriate and to the extent determinable, the following:
(A) the redemption, conversion or exchange date;
(B) that all outstanding shares of Series A Preferred
Stock are to be redeemed or converted or, in the case of a call
for redemption pursuant to paragraph 4(c) of fewer than all
outstanding shares of Series A Preferred Stock pursuant to
paragraph (4)(c), the number of such shares held by such holder
to be redeemed;
(C) in the case of a call for redemption pursuant to
paragraph (4)(c), the Redemption Price, the number of shares of
Common Stock, if any, deliverable upon redemption of each share
of Series A preferred Stock to be redeemed and the Current
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<PAGE> 25
Market Price used to calculate such number of shares of Common
Stock subject to any subsequent adjustments pursuant to
paragraph (4)(d);
(D) whether the Corporation is exercising any option to
deliver shares of Common Stock in lieu of cash (in the case of
a conversion pursuant to paragraph (4)(b)(i)(A) or (4)(b)(v)),
the Current Market Price to be used to calculate the number of
such shares of Common Stock and, if the Corporation is
exercising such option in respect of less than all the cash
that is deliverable by the Corporation upon such conversion,
the portion of such cash in lieu of which Common Stock will be
delivered;
(E) whether the Corporation (or following the
application of the terms of paragraph 4(b)(i)(D), the Issuing
Entity) is electing to exercise the Common Conversion Option,
the Issuing Entity Preferred Stock Conversion Option, the
Corporation Preferred Stock Conversion Option or the Existing
Preferred Stock Option (in the case of a conversion pursuant to
paragraph (4)(b)), and if the Corporation (or following the
application of the terms of paragraph 4(b)(i)(D), the Issuing
Entity) elects the Issuing Entity Preferred Stock Conversion
Option, the Corporation Preferred Stock Conversion Option or
the Existing Preferred Stock Option, that such holder shall be
entitled to exercise the Holder Opt-Out Right;
(F) the place or places where certificates for such
shares are to be surrendered for redemption or conversion;
(G) that dividends on the shares of Series A Preferred
Stock to be redeemed or converted will cease to accrue on such
redemption or conversion date or, in the case of a conversion
pursuant to paragraph (4)(b), on the related Settlement Date,
unless the Corporation (or following the application of the
terms of paragraph 4(b)(i)(D), the Issuing Entity) shall
default in delivering the shares of Common Stock and cash, if
any, payable by the Corporation (or following the application
of the terms of paragraph 4(b)(i)(D), the Issuing Entity)
pursuant to this paragraph (4), at the time and place specified
in such notice; and
(H) if the holder shall be entitled to exercise the
Holder Opt-Out Right, the requirements for exercise of such
Holder Opt-Out Right as set forth in paragraph 4(b)(vi).
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<PAGE> 26
(j) Deposit of Shares and Funds. The Corporation's (or
following the application of the terms of paragraph 4(b)(i)(D), the
Issuing Entity's) obligation to deliver shares of Common Stock and
provide funds in accordance with this paragraph (4) shall be deemed
fulfilled if, on or before a redemption or conversion date, the
Corporation (or following the application of the terms of paragraph
4(b)(i)(D), the Issuing Entity) shall deposit, with a bank or trust
company, or an affiliate of a bank or trust company, having an office
or agency in New York City and having a capital and surplus of at least
$50,000,000, such number of shares of Common Stock as are required to
be delivered by the Corporation (or following the application of the
terms of paragraph 4(b)(i)(D), the Issuing Entity) pursuant to this
paragraph (4) upon the occurrence of the related redemption or
conversion (including any payment of fractional share amounts pursuant
to paragraph (4)(f)(i)), together with funds (or, in the case of a
conversion pursuant to paragraph 4(b), shares of Common Stock and/or
funds) sufficient to pay all accrued and unpaid dividends on the shares
to be redeemed or converted as required by this paragraph (4), in trust
for the account of the holders of the shares to be redeemed or
converted (and so as to be and continue to be available therefor), with
irrevocable instructions and authority to such bank or trust company
that such shares and funds be delivered upon redemption or conversion
of the shares of Series A Preferred Stock so called for redemption or
converted. Any interest accrued on such funds shall be paid to the
Corporation (or following the application of the terms of paragraph
4(b)(i)(D), the Issuing Entity) from time to time. Any shares of Common
Stock or funds so deposited and unclaimed at the end of two years from
such redemption or conversion date shall be repaid and released to the
Corporation (or following the application of the terms of paragraph
4(b)(i)(D), the Issuing Entity), after which the holder or holders of
such shares of Series A Preferred Stock so called for redemption or
converted shall look only to the Corporation (or following the
application of the terms of paragraph 4(b)(i)(D), the Issuing Entity)
for delivery of such shares of Common Stock or funds.
(k) Surrender of Certificates; Status. Each holder of shares of
Series A Preferred Stock to be redeemed or converted shall surrender
the certificates evidencing such shares (properly endorsed or assigned
for transfer, if the Board of Directors of the Corporation shall so
require and the notice shall so state) to the Corporation at the place
designated in the notice of such redemption or conversion and shall
thereupon be entitled to receive certificates evidencing shares of
Common Stock and to receive any funds payable pursuant to this
paragraph 4 following such surrender and following the date of such
redemption or conversion. In case fewer than all the shares represented
by any such surrendered certificate are called for redemption, a new
certificate shall be issued at the expense of the Corporation
representing the unredeemed shares. If such notice of redemption or
conversion shall have
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<PAGE> 27
been given, and if on the date fixed for redemption or conversion
shares of Common Stock and funds necessary for the redemption or
conversion shall have been either set aside by the Corporation (or
following the application of the terms of paragraph 4(b)(i)(D), the
Issuing Entity) separate and apart from its other funds or assets in
trust for the account of the holders of the shares to be redeemed or
converted (and so as to be and continue to be available therefor) or
deposited with a bank or trust company or affiliate thereof as provided
in paragraph 4(j), then, notwithstanding that the certificates
evidencing any shares of Series A Preferred Stock so called for
redemption or subject to conversion shall not have been surrendered,
the shares represented thereby so called for redemption or subject to
conversion shall be deemed no longer outstanding, dividends with
respect to the shares so called for redemption or subject to conversion
shall cease to accrue after the date fixed for redemption or conversion
or, in the case of a conversion pursuant to paragraph (4)(b), on the
related Settlement Date, and all rights with respect to the shares so
called for redemption or subject to conversion shall forthwith after
such date cease and terminate, except for the right of the holders to
receive the shares of Common Stock and funds, if any, payable pursuant
to this paragraph 4, without interest, upon surrender of their
certificates therefor.
(l) Dividend Payments. The holders of shares of Series A
Preferred Stock at the close of business on a dividend payment record
date shall be entitled to receive the dividend payable on such shares
on the corresponding dividend payment date, notwithstanding the call or
conversion thereof (except that holders of shares called for redemption
or to be converted on a date occurring between such record date and the
dividend payment date or on such dividend payment date shall not be
entitled to receive such dividend on such dividend payment date but
instead will receive accrued and unpaid dividends to such date or the
related Settlement Date, as the case may be) or the Corporation's
default in payment of the dividend due on such dividend payment date.
(m) Payment of Taxes. The Corporation will pay any and all
documentary, stamp or similar issue or transfer taxes payable in
respect of the issue or delivery of shares of Common Stock on the
redemption or conversion of shares of Series A Preferred Stock pursuant
to this paragraph (4); provided, however, that the Corporation shall
not be required to pay any tax which may be payable in respect of any
registration of transfer involved in the issue or delivery of shares of
Common Stock in a name other than that of the registered holder of
Series A Preferred Stock redeemed or converted or to be redeemed or
converted, and no such issue or delivery shall be made unless and until
the person requesting such issue 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.
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<PAGE> 28
(n) Listing of Common Stock. The Corporation will endeavor to
list the shares of Common Stock required to be delivered upon
conversion of the Series A Preferred stock prior to such delivery, upon
each national securities exchange, if any, upon which the outstanding
Common Stock is listed at the time of such delivery.
(5) Liquidation Preference.
(a) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation, the
holders of shares of Series A Preferred Stock then outstanding shall be
entitled to be paid out of the assets of the Corporation available for
distribution to its stockholders, after payment or provision for
payment of any Senior Securities, an amount per share of Series A
Preferred Stock in cash equal to the sum of (i) $15.50, plus (ii) all
accrued and unpaid dividends thereon to the date of liquidation,
dissolution or winding up, before any payment shall be made or any
assets distributed to the holders of any of the Junior Securities, and
no more. If the assets of the Corporation are not sufficient to pay in
full the liquidation payments payable to the holders of outstanding
shares of the Series A Preferred Stock and any Parity Securities, then
the holders of all such shares shall share ratably in such distribution
of assets in accordance with the amount which would be payable on such
distribution if the amounts to which the holders of outstanding shares
of Series A Preferred Stock and the holders of outstanding shares of
such Parity Securities are entitled were paid in full. Except as
provided in this paragraph (5)(a), holders of Series A Preferred Stock
shall not be entitled to any distribution in the event of liquidation,
dissolution or winding up of the affairs of the Corporation.
(b) For the purposes of this paragraph (5), neither the
voluntary sale, conveyance, lease, exchange or transfer (for cash,
shares of stock, securities or other consideration) of all or
substantially all of the property or assets of the Corporation nor the
consolidation or merger of the Corporation with or into one or more
other corporations nor the consolidation or merger of one or more
corporations with or into the Corporation shall be deemed to be a
voluntary or involuntary liquidation, dissolution or winding up.
(6) Voting Rights.
(a) The holders of record of shares of Series A Preferred Stock
shall not be entitled to any voting rights except as hereinafter
provided in this paragraph (6) or as otherwise provided by law.
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(b) The holders of shares of Series A Preferred Stock shall be
entitled to vote on all matters submitted to a vote of the holders of
Common Stock, and, subject to applicable law and paragraph 6(e) hereof,
shall vote together with the holders of Common Stock (and any other
capital stock of the Corporation entitled to vote together with the
Common Stock) as one class; provided, however, that the holders of
Series A Preferred Stock shall not be entitled to vote on any increase
or decrease in the number of authorized shares of any class or classes
of stock. Each share of the Series A Preferred Stock shall be entitled
to a number of votes equal to the Conversion Rate; it being understood
that whenever the Conversion Rate is adjusted as provided in paragraph
(4)(d) hereof, the voting rights of the Series A Preferred Stock shall
also be similarly adjusted.
(c)
(i) If at any time or times dividends payable on all
series of Preferred Stock, including the Series A
Preferred Stock, shall be in arrears and unpaid for four
quarterly periods, then the number of directors
constituting the Board of Directors, without further
action, shall be increased by two (2) and the holders of
shares of Series A Preferred Stock shall have the right,
together with the holders of all other outstanding
series of the Preferred Stock entitled to vote thereon,
to elect the directors of the Corporation to fill such
two newly created directorships, the remaining directors
to be elected by the other class or classes of stock
entitled to vote therefor, at each meeting of
stockholders held for the purpose of electing directors.
At all times while holders of shares of such series of
Preferred Stock (including the Series A Preferred Stock)
are entitled to elect two directors, they shall not be
entitled to participate with the holders of Common Stock
in the election of any other directors, but the holders
of Series A Preferred Stock shall continue to be
entitled to vote with the holders of Common Stock upon
each other matter coming before any meeting of the
stockholders.
(ii) Whenever such voting right shall have vested, such
right may be exercised at any annual or special meeting
of stockholders held for the purpose of electing
directors, or by the written consent of such holders
pursuant to Section 228 of the General Corporation Law
of the State of Delaware. Such voting right shall
continue until such time as all cumulative dividends
accumulated on all outstanding series of Preferred Stock
shall have been paid in full or declared and set aside
for payment in full, at which time such voting right of
such
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<PAGE> 30
holders shall terminate, subject to revesting in the
event of each and every subsequent failure of the
Corporation to pay dividends for the requisite number of
quarters as described above.
(iii) Whether or not such voting right shall have
vested, the holders of the Series A Preferred Stock
shall not be entitled to call any special meetings of
the stockholders of the Corporation.
(iv) At any meeting held for the purpose of electing
directors at which the holders of shares of Series A
Preferred Stock together with all other series of
Preferred Stock entitled to vote thereon shall have the
right to elect directors as provided herein, the
presence in person or by proxy of the holders of at
least a majority of the then outstanding shares of such
series of Preferred Stock shall be required and be
sufficient to constitute a quorum of such series for the
election of directors by such series. At any such
meeting or adjournment thereof (x) the absence of a
quorum of the holders of shares of such series of
Preferred Stock shall not prevent the election of
directors other than those to be elected by the holders
of stock of such series and the absence of a quorum or
quorums of the holders of capital stock entitled to
elect such other directors shall not prevent the
election of directors to be elected by the holders of
shares of such series of Preferred Stock and (y) in the
absence of a quorum of the holders of shares of such
series of Preferred Stock, a majority of such holders
present in person or by proxy shall have the power to
adjourn the meeting for the election of directors which
the holders of shares of such series of Preferred Stock
may be entitled to elect, from time to time, without
notice (except as required by law) other than
announcement at the meeting, until a quorum shall be
present.
(v) The term of office of all directors elected by the
holders of shares of Series A Preferred Stock together
with all other series of Preferred Stock entitled to
vote thereon pursuant to paragraph (6)(c)(i) in office
at any time when the aforesaid voting rights are vested
in the holders of shares of such series of Preferred
Stock shall terminate upon the election of their
successors at any meeting of stockholders for the
purpose of electing directors. Upon any termination of
the aforesaid voting rights in accordance with paragraph
(6)(c)(ii), the term of office of all directors elected
by the holders of shares of such series of Preferred
Stock pursuant to paragraph (6)(c)(i) then in office
shall
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<PAGE> 31
thereupon terminate and upon such termination the number
of directors constituting the Board of Directors shall,
without further action, be reduced by two (2), subject
always to the increase of the number of directors
pursuant to paragraph (6)(c)(i) in case of the future
right of the holders of shares of such series of
Preferred Stock to elect directors as provided herein.
(vi) In case of any vacancy occurring among the
directors elected pursuant to paragraph (6)(c)(i), the
remaining director who shall have been so elected may
appoint a successor to hold office for the unexpired
term of the director whose place shall be vacant. If all
directors so elected by the holders of shares of Series
A Preferred Stock together with all other series of
Preferred Stock entitled to vote thereon shall cease to
serve as directors before their terms shall expire, the
holders of shares of such series of Preferred Stock then
outstanding may, at a special meeting of the holders
called as provided above, elect successors to hold
office for the unexpired terms of the directors whose
places shall be vacant.
(d) Neither (i) the creation, authorization or issuance of any
shares of any Junior Securities, Parity Securities or Senior
Securities, (ii) the creation of any indebtedness of any kind of the
Corporation, nor (iii) the increase or decrease in the amount of
authorized capital stock of any class, including Preferred Stock, shall
require any vote or consent of the holders of Series A Preferred Stock.
(e) Except for the amendments contemplated by the exercise of
the Existing Preferred Stock Option, so long as any shares of the
Series A Preferred Stock are outstanding (except when notice of the
redemption or conversion of all outstanding shares of Series A
Preferred Stock has been given pursuant to paragraph (4)(i) and shares
of Common Stock and any necessary funds have been deposited in trust
for such redemption or conversion pursuant to paragraph (4)(j)), the
Corporation shall not, without the affirmative vote or written consent
of the holders of at least 66 2/3% of the shares of Series A Preferred
Stock and any other series of Preferred Stock entitled to vote thereon
at the time outstanding voting or consenting, as the case may be,
together as one class, given in person or by proxy, either in writing
or by resolution adopted at an annual or special meeting called for the
purpose, amend the Certificate of Incorporation or this Certificate of
Designation so as to affect materially and adversely the specified
rights, preferences, privileges or voting rights of holders of shares
of Series A Preferred Stock.
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<PAGE> 32
(7) Increase in Shares. The number of shares of Series A Preferred
Stock may, to the extent of the Corporation's authorized and unissued Preferred
Stock, be increased by further resolution duly adopted by the Board of Directors
and the filing of a certificate of increase with the Secretary of State of the
State of Delaware.
(8) Limitations. Except as may otherwise be required by law, the shares
of Series A Preferred Stock shall not have any powers, preferences or relative,
participating, optional or other special rights other than those specifically
set forth in this resolution (as such resolution may be amended from time to
time) or otherwise in the Certificate of Incorporation of the Corporation.
IN WITNESS WHEREOF, Arcadian Corporation has caused this Certificate of
Designation to be made under the seal of the Corporation and signed by William
A. McMinn, its Chairman of the Board, and attested by Peter H. Kesser, its
Secretary, this 2nd day of August, 1995.
ARCADIAN CORPORATION
By: /s/ WILLIAM A. McMINN
-----------------------
William A. McMinn
Chairman of the Board
Attested:
By: /s/ PETER H. KESSER
--------------------
Peter H. Kesser
Secretary
<PAGE> 33
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
ARCADIAN CORPORATION
Arcadian Corporation, a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of Arcadian
Corporation, resolutions were duly adopted setting forth a proposed amendment of
the Certificate of Incorporation of said corporation, declaring said amendment
to be advisable, and calling a meeting of the stockholders of said corporation
for consideration thereof. The resolution setting forth the proposed amendment
is as follows:
RESOLVED, that in accordance with Section 242 and any other applicable
provisions of the General Corporation Law of the State of Delaware, the Board of
Directors hereby proposes that the Company's Restated Certificate of
Incorporation, as amended ("Certificate of Incorporation"), be further amended
by adding the following language to paragraph 4 of the Certificate of
Designation ("Certificate of Designation") relating to the Company's Mandatorily
Convertible Preferred Stock, Series A, par value $.01 per share ("Preferred
Stock"), filed with the office of the Secretary of State of the State of
Delaware on August 4, 1995:
(o) Conversion at Holder's Election.
(i) Subject to the limitations set forth in paragraphs
4(o)(ii) and 4(o)(iii), each holder of a share of Series A Preferred
Stock shall have the right (the "Holder Conversion Right") to elect to
convert any whole number of shares of Series A Preferred Stock held by
such holder into (A) shares of Common Stock at the Conversion Rate then
in effect, plus (B) the right to receive an amount in cash equal to any
unpaid dividends declared on the shares of Series A Preferred Stock so
converted the record date for which occurs prior to the date of
exercise of the Holder Conversion Right (the "Exercise Date") out of
funds legally available therefor (and no other dividends shall accrue
or be payable on such shares so converted).
(ii) If the product of (A) the Current Market Price of a share
of Common Stock determined with respect to the Exercise Date (which
Current Market Price shall be appropriately adjusted for purposes
hereof if the Corporation has made any antidilution adjustment to the
Conversion Rate pursuant to paragraph 4(d) with respect to an event
that has not occurred as of such date of exercise) and (B) the number
of shares of Common Stock issuable upon conversion of a share of Series
A
<PAGE> 34
Preferred Stock pursuant to the Holder Conversion Right exceeds
$22.475, then the number of shares of Common Stock issuable upon
exercise of the Holder Conversion Right shall be reduced so that the
product described above equals $22.475.
(iii) The Holder Conversion Right shall automatically
terminate, without any further notice to the holders of the Series A
Preferred Stock, upon the earlier to occur of (A) August 16, 1996, or
(B) the opening of business on the date prior to the date on which any
Merger or Consolidation becomes effective.
(iv) In order to exercise the Holder Conversion Right, a
holder of shares of Series A Preferred Stock shall (a) deliver a
properly completed and duly executed written notice of election to
convert, specifying the name or names in which such holder wishes the
certificate or certificates for shares of Common Stock (subject to
paragraph (4)(d)(iv)) to be issued to the Corporation at its principal
office or at the office of the Conversion Agent, (b) surrender the
certificate for such shares of Series A Preferred Stock to the
Corporation or the Conversion Agent, accompanied, if so required by the
Corporation or the Conversion Agent, by a written instrument or
instruments of transfer in form reasonably satisfactory to the
Corporation or the Conversion Agent duly executed by the holder or his
attorney duly authorized in writing, and (c) pay any transfer or
similar tax required to be paid by such holder pursuant to paragraph
4(m). Subject to paragraph 4(o)(iii), conversion shall be deemed to
have been effected at the opening of business on the first business day
following the Exercise Date. Immediately upon conversion, the rights of
the holder of all converted shares of Series A Preferred Stock shall
cease and the persons entitled to receive the shares of Common Stock
(subject to paragraph (4)(d)(iv)) upon the conversion of such shares of
Series A Preferred Stock shall be treated for all purposes as having
become the beneficial owners of such shares of Common Stock (subject to
paragraph (4)(d)(iv)).
; and further
RESOLVED, that the first paragraph of section 4(d) of the Certificate
of Designation is hereby amended to read in its entirety as follows:
(d) Conversion Rate; Adjustments. The Conversion Rate to be
used to determine the number of shares of Common Stock to be delivered
on the conversion of the Series A Preferred Stock into shares of Common
Stock pursuant to paragraph (4)(a), (4)(b) or (4)(o) shall be initially
one share of Common Stock for each share of Series A Preferred Stock;
provided, however, that such Conversion Rate shall be subject to
adjustment from time to time as provided in paragraph 4(b)(iii) and in
this paragraph (4)(d). All adjustments to the Conversion Rate shall be
calculated to the nearest
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<PAGE> 35
1/1000th of a share of Common Stock. Such rate in effect at any time is
herein called the "Conversion Rate."
; and further
RESOLVED, that paragraph 4(d)(vii) of the Certificate of Designation is
hereby amended to read in its entirety as follows:
(vii) In any case in which paragraph (4)(d) shall
require that an adjustment as a result of any event become
effective as of the close of business on the record date and
the date fixed for conversion pursuant to paragraph (4)(a),
4(b), 4(c) or 4(o) occurs after such record date, but before
the occurrence of such event, the Corporation may in its sole
discretion elect to defer the following until after the
occurrence of such event: (A) issuing to the holder of any
converted shares of the Series A Preferred Stock the
additional shares of Common Stock issuable upon such
conversion before giving effect to such adjustment and (B)
paying to such holder any amount in cash in lieu of a
fractional share of Common Stock pursuant to paragraph (4)(f).
SECOND: That thereafter, pursuant to resolutions of its Board of
Directors, a special meeting of the stockholders of said corporation was duly
called and held, upon notice in accordance with Section 222 of the General
Corporation Law of the State of Delaware, at which meeting the necessary number
of shares as required by statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, Arcadian Corporation has caused this certificate to
be signed by Peter H. Kesser, its authorized officer, on this 16th day of May
1996.
ARCADIAN CORPORATION
By: /s/ PETER H. KESSER
----------------------------------------
Peter H. Kesser
Vice President - Law and General Counsel
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