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Exhibit 4.1
Certificate of Designation of Rights, Preferences
and Limitations of Series A Convertible Preferred Stock
of
Casella Waste Systems, Inc.
Casella Waste Systems, Inc., a Delaware corporation (the "Corporation"),
pursuant to authority conferred on the Board of Directors of the Corporation by
the Certificate of Incorporation and in accordance with the provisions of
Section 151 of the General Corporation Law of the State of Delaware, certifies
that the Board of Directors of the Corporation, at a meeting duly called and
held, at which a quorum was present and acting throughout, duly adopted the
following resolution:
RESOLVED: That, pursuant to the authority expressly granted to and vested
in the Board of Directors of the Corporation in accordance with the provisions
of its Certificate of Incorporation, a series of Preferred Stock of the
Corporation be and hereby is established, consisting of 55,750 shares, to be
designated "Series A Convertible Preferred Stock" (hereinafter "Series A
Preferred Stock"); that the Board of Directors be and hereby is authorized to
issue such shares of Series A Preferred Stock from time to time and for such
consideration and on such terms as the Board of Directors shall determine; and
that, subject to the limitations provided by law and by the Certificate of
Incorporation, the powers, designations, preferences and relative,
participating, optional or other special rights of, and the qualifications,
limitations or restrictions upon, the Series A Preferred Stock shall be as
follows:
1. Dividends.
(a) Holders of the outstanding shares of Series A Preferred Stock
will be entitled to receive dividends on each share of the Series A Preferred
Stock, when and if declared by the Board of Directors, out of funds legally
available therefor, at a rate per annum equal to 5.0% of the Liquidation Value,
payable quarterly in arrears on January 31, April 30, July 31 and October 31 of
each year (unless such day is not a business day, in which event such dividends
shall be payable on the next succeeding business day) (each such date being a
"Dividend Payment Date" and each such quarterly period being a "Dividend
Period"), commencing on
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October 31, 2000. Each such dividend shall be payable to the holders of record
of shares of the Series A Preferred Stock as they appear on the stock register
of the Corporation at the close of business on the corresponding Record Date. As
used herein, the term "Record Date" means, with respect to the dividend payable
on January 31, April 30, July 31 and October 31, respectively, of each year, the
preceding January 15, April 15, July 15 and October 15, or such other date, not
more than 60 days or less than 10 days preceding the payment dates thereof, as
shall be fixed as the record date by the Board of Directors. Dividends, whether
or not declared and whether or not there shall be earnings or surplus, will
accrue on a daily basis and accumulate on the last day of each Dividend Period
in accordance with the following sentence. If cash dividends are not declared by
the Board of Directors and paid to the holders of the outstanding shares of
Series A Preferred Stock on or before the respective Dividend Payment Date, such
dividend shall accumulate by adding to the Accreted Value for each share of
Series A Preferred Stock an amount equal to the Applicable Percentage multiplied
by the Accreted Value as of the immediately preceding Dividend Payment Date.
(b) Commencing on the third anniversary of the Closing Date, any
dividend on the Series A Preferred Stock may, at the option of the Corporation,
be paid in cash; provided, however, that, with respect to any Dividend Payment
Date occurring prior to the third anniversary of the Closing Date, all such
dividends shall not be declared or paid and the amount thereof shall accumulate
as described in Section 1(a) above. As used herein, the "Applicable Percentage"
for each full Dividend Period for the Series A Preferred Stock shall be 1.25%.
The Applicable Percentage for the initial Dividend Period, or any other period
shorter than a full period, shall be computed on the basis of a per annum rate
of 5.0% and the actual number of days elapsed over a 365-day year.
(c) If at any time after the fourth anniversary of the Closing Date,
the average Market Price of the Class A Common Stock for a period of 30
consecutive trading days equals or exceeds $34.30 (subject to appropriate
adjustments for stock splits, stock dividends, combinations and other similar
recapitalizations after the Closing Date affecting the shares of the Common
Stock), then the dividend on the Series A Preferred Stock shall cease to accrue;
provided that the Corporation shall not have elected (or been required) to pay
any dividend in cash pursuant to Section 1(b) prior to the fourth anniversary of
the Closing Date.
(d) All dividends paid with respect to shares of the Series A
Preferred Stock shall be paid pro rata to the holders thereof entitled thereto.
(e) If accrued dividends on the Series A Preferred Stock for all
prior periods have not been (i) paid in full or (ii) added to the Accreted Value
pursuant to Section 1(a), then any dividend declared on any Parity Stock or
Junior Stock (other than the Common Stock) will be declared ratably on the
Series A Preferred Stock in proportion to accrued and unpaid dividends on the
Series A Preferred Stock and such Parity Stock or Junior Stock (other than the
Common Stock) and if dividends on any Parity Stock or Junior Stock (other than
the Common Stock) are due and payable and have not been paid in full, then any
dividend declared on the Series A Preferred Stock will be declared ratably on
the Parity Stock or Junior Stock (other than the Common Stock) in proportion to
accrued and unpaid dividends on the Series A Preferred Stock and such Parity
Stock or Junior Stock (other than the Common Stock).
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(f) So long as any shares of Series A Preferred Stock are
outstanding, if the Corporation pays a dividend or distribution in cash on the
Common Stock (other than dividends or distributions payable solely in Common
Stock) then at the same time the Corporation shall declare and pay a dividend on
each share of Series A Preferred Stock in the amount equal to the dividends that
would be paid with respect to a share of Series A Preferred Stock if converted
by the holder thereof into Common Stock on the date established as the record
date with respect to such dividend on the Common Stock and there shall be no
adjustment to the Series A Conversion Price with respect to such dividend.
2. Liquidation, Dissolution or Winding Up; Certain Mergers,
Consolidations and Asset Sales.
(a) In the event of any voluntary or involuntary liquidation,
dissolution or winding up 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, before any
payment shall be made to the holders of Common Stock or any other class or
series of stock ranking on liquidation junior to the Series A Preferred Stock
(such Common Stock and other stock being collectively referred to as "Junior
Stock") by reason of their ownership thereof, an amount equal to the greater of
(i) the Liquidation Value, plus all accrued but unpaid dividends accrued but
unpaid since the most recent Dividend Payment Date, or (ii) such amount per
share as would have been payable had each such share been converted into Class A
Common Stock pursuant to Section 4 immediately prior to such liquidation,
dissolution or winding up. If upon any such liquidation, dissolution or winding
up of the Corporation the remaining assets of the Corporation available for
distribution to its stockholders shall be insufficient to pay the holders of
shares of Series A Preferred Stock and Parity Stock the full amount to which
they shall be entitled, the holders of shares of Series A Preferred Stock and
any Parity Stock shall share ratably in any distribution of the remaining assets
and funds of the Corporation in proportion to the respective amounts which would
otherwise be payable in respect of the shares held by them upon such
distribution if all amounts payable on or with respect to such shares were paid
in full.
(b) After the payment of all amounts required to be paid to the
holders of Series A Preferred Stock and any Parity Stock in accordance with
Section 2(a), upon the dissolution, liquidation or winding up of the
Corporation, the holders of shares of Junior Stock then outstanding shall be
entitled to receive the remaining assets and funds of the Corporation available
for distribution to its stockholders.
(c) Unless the holders of a majority of the shares of Series A
Preferred Stock determine otherwise, any (i) merger or consolidation in which
(A) the Corporation is a constituent party or (B) a subsidiary of the
Corporation is a constituent party and the Corporation issues shares of its
capital stock pursuant to such merger or consolidation (except any such merger
or consolidation involving the Corporation or a subsidiary in which the holders
of capital stock of the Corporation immediately prior to such merger or
consolidation continue to hold immediately following such merger or
consolidation at least 50% by voting power of the capital stock of (x) the
surviving or resulting corporation or (y) if the surviving or resulting
corporation is a wholly owned subsidiary of another corporation immediately
following such merger or consolidation, the parent corporation of such surviving
or resulting corporation), or (ii) the sale
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of all or substantially all the assets of the Corporation (other than a transfer
of all or substantially all of the assets of the Corporation to one or more
wholly owned subsidiaries), shall be deemed to be a liquidation of the
Corporation for purposes of this Section 2, and the agreement or plan of merger
or consolidation with respect to such merger, consolidation or sale shall
provide that the consideration payable to the stockholders of the Corporation
(in the case of a merger or consolidation), or consideration payable to the
Corporation, together with all other available assets of the Corporation (in the
case of an asset sale), shall be distributed to the holders of capital stock of
the Corporation in accordance with Sections 2(a) and 2(b) above. The amount
deemed distributed to the holders of Series A Preferred Stock upon any such
merger, consolidation or sale shall be the cash or the value of the property,
rights or securities distributed to such holders by the Corporation or the
acquiring person, firm or other entity. The value of such property, rights or
other securities shall be determined in good faith by the Board of Directors of
the Corporation. For the purposes of this Section 2, except as expressly set
forth in this Section 2(c), neither the sale, conveyance, exchange or transfer
(for cash, shares of stock, securities or other consideration) of all or
substantially all of the property or assets of the Corporation nor the
consolidation or merger of the Corporation with or into one or more other
entities shall be deemed to be a liquidation, dissolution or winding-up of the
Corporation.
3. Voting.
(a) On any matter presented to the stockholders of the Corporation
for their action or consideration at any meeting of stockholders of the
Corporation, each holder of outstanding shares of Series A Preferred Stock shall
be entitled to the number of votes equal to the number of whole shares of Class
A Common Stock into which the shares of Series A Preferred Stock held by such
holder are convertible as of the record date for determining stockholders
entitled to vote on such matter. Except as provided by law, by the provisions of
the Corporation's Certificate of Incorporation, by the provisions of Section
3(b) or Section 3(c) below or any other provision hereof specifically requiring
the vote of the Series A Preferred Stock or by the provisions establishing any
other series of Preferred Stock, holders of Series A Preferred Stock and of any
other outstanding series of Preferred Stock shall vote together with the holders
of Common Stock as a single class.
(b) The Corporation shall not amend, alter or repeal the
preferences, special rights or other powers of the Series A Preferred Stock or
otherwise amend its Certificate of Incorporation (whether by amendment, merger,
reorganization or otherwise) so as to affect adversely the Series A Preferred
Stock, without the written consent or affirmative vote of the holders of a
majority of the then outstanding shares of Series A Preferred Stock, given in
writing or by vote at a meeting, consenting or voting (as the case may be)
separately as a class. For this purpose, without limiting the generality of the
foregoing, the authorization of any shares of capital stock with preference or
priority over the Series A Preferred Stock as to the right to receive either
dividends or amounts distributable upon liquidation, dissolution or winding up
of the Corporation shall be deemed to affect adversely the Series A Preferred
Stock, and subject to the provisions of Section 3(c), the authorization of any
shares of capital stock on a parity or junior to with Series A Preferred Stock
as to the right to receive either dividends or amounts distributable upon
liquidation, dissolution or winding up of the Corporation shall not be deemed to
affect adversely the Series A Preferred Stock. The number of authorized shares
of Series A Preferred Stock may be increased or decreased (but not below the
number of shares then
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outstanding) by the directors of the Corporation pursuant to Section 151 of the
General Corporation Law of Delaware or by the affirmative vote of the holders of
a majority of the votes entitled to be cast by the then outstanding shares of
the Common Stock, Series A Preferred Stock and all other classes or series of
stock of the Corporation entitled to vote thereon, voting as a single class,
irrespective of the provisions of Section 242(b)(2) of the General Corporation
Law of Delaware.
(c) In addition to any other rights provided by law, so long as at
least 15% of the initial number of shares of Series A Preferred Stock shall be
outstanding, the Corporation shall not, without first obtaining the affirmative
vote or written consent of the holders of not less than 50% of the then
outstanding shares of Series A Preferred Stock:
(i) issue any Parity Stock, Junior Stock (other than Common
Stock) or convertible securities (other than stock options and other awards with
respect to Common Stock given to employees, directors and consultants)
("Restricted Instruments") unless, in the opinion of counsel to the Corporation
reasonably satisfactory to the holders of a majority of the shares of Series A
Preferred Stock, (A) the issuance of such Restricted Instruments will not cause
the Series A Preferred Stock to be treated as preferred stock for purposes of
Section 305 of the Internal Revenue Code of 1986, as amended (the "Code"), and
(B) regardless of whether the Corporation has or is expected to have current or
accumulated earnings and profits, the terms of such Restricted Instruments will
not permit or give rise to a distribution under Section 301 of the Code or a
transaction treated as a distribution under Section 305(c) of the Code which
will cause the holders of Series A Preferred Stock to realize income by reason
of Section 305 of the Code;
(ii) declare or pay any dividends or make any other direct or
indirect distribution on account of any capital stock (other than Series A
Preferred Stock or Common Stock); or
(iii) redeem, repurchase, otherwise acquire or enter into any
transaction involving the disposition of any shares of capital stock (other than
a disposition of such shares by the Company) unless, in the opinion of counsel
to the Corporation reasonably satisfactory to the holders of a majority of the
shares of Series A Preferred Stock, regardless of whether the Corporation has or
is expected to have current or accumulated earnings and profits, such
transaction will not cause the holders Series A Preferred Stock to realize
income by reason of Section 305 of the Code; provided however that this Section
3(c)(iii) shall not apply to repurchases by the Corporation of Common Stock on
the open market in which the identity of the seller is unknown to the
Corporation or to redemptions by the Corporation pursuant to Section 6 or
Section 7.
(d) Notwithstanding any other provision in the Corporation's
Certificate of Incorporation or By-laws, the holders of the Series A Preferred
Stock may take action by written consent in lieu of a meeting.
4. Optional Conversion. The holders of the Series A Preferred Stock
shall have conversion rights as follows (the "Conversion Rights"):
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(a) Right to Convert. Each share of Series A Preferred Stock shall
be convertible, at the option of the holder thereof, at any time and from time
to time, and without the payment of additional consideration by the holder
thereof, into fully paid and nonassessable shares of Class A Common Stock. The
number of shares of Class A Common Stock deliverable upon conversion of a share
of Series A Preferred Stock is determined by dividing the Liquidation Value on
the applicable date plus all accrued but unpaid dividends which have not been
added to the Accreted Value in accordance with Section 1(a) by the Series A
Conversion Price (as defined below) in effect at the time of conversion. The
"Series A Conversion Price" shall initially be $14.00. Such initial Series A
Conversion Price, and the rate at which shares of Series A Preferred Stock may
be converted into shares of Class A Common Stock, shall be subject to adjustment
as provided below.
In the event of a notice of redemption of any shares of Series A Preferred
Stock pursuant to Section 6 hereof, the Conversion Rights of the shares
designated for redemption shall terminate at the close of business on the first
full day preceding the date fixed for redemption, unless the redemption price is
not paid on such redemption date, in which case the Conversion Rights for such
shares shall continue until such price is paid in full. In the event of a
liquidation of the Corporation, the Conversion Rights shall terminate at the
close of business on the first full day preceding the date fixed for the payment
of any amounts distributable on liquidation to the holders of Series A Preferred
Stock.
(b) Fractional Shares. No fractional shares of Class A Common Stock
shall be issued upon conversion of the Series A Preferred Stock. In lieu of any
fractional shares to which the holder would otherwise be entitled, the
Corporation shall pay cash equal to such fraction multiplied by the then
effective Series A Conversion Price.
(c) Mechanics of Conversion.
(i) In order for a holder of Series A Preferred Stock to convert
shares of Series A Preferred Stock into shares of Class A Common Stock, such
holder shall surrender the certificate or certificates for such shares of Series
A Preferred Stock, at the office of the transfer agent for the Series A
Preferred Stock (or at the principal office of the Corporation if the
Corporation serves as its own transfer agent), together with written notice that
such holder elects to convert all or any portion of the shares of the Series A
Preferred Stock represented by such certificate or certificates. Such notice
shall state such holder's name or the names of the nominees in which such holder
wishes the certificate or certificates for shares of Class A Common Stock to be
issued. If required by the Corporation, certificates surrendered for conversion
shall be endorsed or accompanied by a written instrument or instruments of
transfer, in form satisfactory to the Corporation, duly executed by the
registered holder or his or its attorney duly authorized in writing. The date of
receipt of such certificates and notice by the transfer agent (or by the
Corporation if the Corporation serves as its own transfer agent) shall be the
conversion date ("Conversion Date"), and the shares of Class A Common Stock
issuable upon conversion of the shares represented by such certificate shall be
deemed to be outstanding of record as of such date. The Corporation shall, as
soon as practicable after the Conversion Date, issue and deliver at such office
to such holder of Series A Preferred Stock, or to his or its nominees, a
certificate or certificates for the number of shares of Class A Common Stock to
which such holder shall be entitled, together with cash in lieu of any fraction
of a share.
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(ii) The Corporation shall at all times when the Series A
Preferred Stock shall be outstanding, reserve and keep available out of its
authorized but unissued stock, for the purpose of effecting the conversion of
the Series A Preferred Stock, such number of its duly authorized shares of Class
A Common Stock as shall from time to time be sufficient to effect the conversion
of all outstanding Series A Preferred Stock. Before taking any action which
would cause an adjustment reducing the Series A Conversion Price below the then
par value of the shares of Class A Common Stock issuable upon conversion of the
Series A Preferred Stock, the Corporation will take any corporate action which
may, in the opinion of its counsel, be necessary in order that the Corporation
may validly and legally issue fully paid and nonassessable shares of Class A
Common Stock at such adjusted Series A Conversion Price.
(iii) All shares of Series A Preferred Stock which shall have
been surrendered for conversion as herein provided shall no longer be deemed to
be outstanding and all rights with respect to such shares hereunder, including
the rights, if any, to receive notices and to vote, shall immediately cease and
terminate on the Conversion Date, except only the right of the holders thereof
to receive shares of Class A Common Stock in exchange therefor and payment of
any dividends declared but unpaid thereon. Any shares of Series A Preferred
Stock so converted shall be retired and cancelled and shall not be reissued, and
the Corporation (without the need for stockholder action) will take such
appropriate action as may be necessary to reduce the authorized number of shares
of Series A Preferred Stock accordingly.
(iv) The Corporation shall pay any and all issue and other
similar taxes that may be payable in respect of any issuance or delivery of
shares of Class A Common Stock upon conversion of shares of Series A Preferred
Stock pursuant to this Section 4. The Corporation shall not, however, be
required to pay any tax which may be payable in respect of any transfer involved
in the issuance and delivery of shares of Class A Common Stock in a name other
than that in which the shares of Series A Preferred Stock so converted were
registered, and no such issuance or delivery shall be made unless and until the
person or entity requesting such issuance has paid to the Corporation the amount
of any such tax or has established, to the satisfaction of the Corporation, that
such tax has been paid.
(d) Adjustments to Series A Conversion Price for Diluting Issues:
(i) Special Definitions. For purposes of this Section 4, the
following definitions shall apply:
(A) "Option" shall mean rights, options or warrants to
subscribe for, purchase or otherwise acquire Common Stock or Convertible
Securities.
(B) "Series A Original Issue Date" shall mean the date on
which a share of Series A Preferred Stock was first issued.
(C) "Convertible Securities" shall mean any evidences of
indebtedness, shares or other securities directly or indirectly convertible into
or exchangeable for Common Stock, but excluding Options.
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(D) "Additional Shares of Common Stock" shall mean all
shares of Common Stock issued (or, pursuant to Subsection 4(d)(iii) below,
deemed to be issued) by the Corporation after the Series A Original Issue Date,
other than:
(I) shares of Common Stock issued or issuable upon
conversion or exchange of any Convertible
Securities or exercise of any Options outstanding
on the Series A Original Issue Date;
(II) shares of Convertible Securities or Common Stock
issued or issuable as a dividend or distribution
on Series A Preferred Stock or the adjustment of
the Series A Conversion Price;
(III) shares of Common Stock issued or issuable by
reason of a dividend, stock split, split-up or
other distribution on shares of Common Stock that
is covered by Section 4(e) or 4(f) below;
(IV) shares of Common Stock (or Options with respect
thereto) issued or issuable to employees or
directors of, or consultants to, the Corporation
pursuant to a plan or arrangement approved by the
Board of Directors of the Corporation; or
(V) shares of Convertible Securities or Common Stock
(or Options with respect thereto) issued or
issuable as consideration for the acquisition of a
business or of assets (whether pursuant to a
merger, asset acquisition or otherwise) or to the
Corporation's joint venture partners in exchange
for interests in the relevant joint venture, but
only to the extent that the consideration per
share (determined pursuant to Section 4(d)(v)) for
such transactions consummated after the Closing
Date is equal to or greater than $10.00 (subject
to appropriate adjustments for stock splits,
dividends, combinations and other similar
recapitalizations after the Closing Date).
(ii) No Adjustment of Series A Conversion Price. No adjustment
in the Series A Conversion Price shall be made as the result of the issuance of
Additional Shares of Common Stock if: (a) the consideration per share
(determined pursuant to Subsection 4(d)(v)) for such Additional Share of Common
Stock issued or deemed to be issued by the Corporation is equal to or greater
than the applicable Series A Conversion Price in effect immediately prior to the
issuance or deemed issuance of such Additional Shares, or (b) prior to such
issuance or deemed issuance, the Corporation receives written notice from the
holders of at least 50% of the
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then outstanding shares of Series A Preferred Stock agreeing that no such
adjustment shall be made as the result of the issuance or deemed issuance of
Additional Shares of Common Stock.
(iii) Issue of Securities Deemed Issue of Additional Shares of
Common Stock. If the Corporation at any time or from time to time after the
Series A Original Issue Date shall issue any Options or Convertible Securities
or shall fix a record date for the determination of holders of any class of
securities entitled to receive any such Options or Convertible Securities, then
the maximum number of shares of Common Stock (as set forth in the instrument
relating thereto without regard to any provision contained therein for a
subsequent adjustment of such number) issuable upon the exercise of such Options
or, in the case of Convertible Securities and Options therefor, the conversion
or exchange of such Convertible Securities, shall be deemed to be Additional
Shares of Common Stock issued as of the time of such issue or, in case such a
record date shall have been fixed, as of the close of business on such record
date (unless such Options or Convertible Securities are excluded from the
definition of Additional Shares of Common Stock pursuant to Section 4(d)(I)(D)
above), provided that (i) if those Options are only exercisable upon the
occurrence of certain triggering events, then the Options will be deemed not to
be issued or outstanding, and the Series A Conversion Price will not be adjusted
with respect to such Options, until the triggering events occur, and (ii)
Additional Shares of Common Stock shall not be deemed to have been issued unless
the consideration per share (determined pursuant to Section 4(d)(v) hereof) of
such Additional Shares of Common Stock would be less than the applicable Series
A Conversion Price in effect on the date of and immediately prior to such issue,
or such record date, as the case may be, and provided further that in any such
case in which Additional Shares of Common Stock are deemed to be issued:
(A) No further adjustment in the Series A Conversion Price
shall be made upon the subsequent issue of Convertible Securities or shares of
Common Stock upon the exercise of such Options or conversion or exchange of such
Convertible Securities;
(B) If such Options or Convertible Securities by their terms
provide, with the passage of time or otherwise, for any increase or decrease in
the consideration payable to the Corporation, upon the exercise, conversion or
exchange thereof, the Series A Conversion Price computed upon the original issue
thereof (or upon the occurrence of a record date with respect thereto), and any
subsequent adjustments based thereon, shall, upon any such increase or decrease
becoming effective, be recomputed to reflect such increase or decrease insofar
as it affects such Options or the rights of conversion or exchange under such
Convertible Securities;
(C) Upon the expiration or termination of any such
unexercised Option or unconverted Convertible Security, the Series A Conversion
Price shall not be readjusted, but the Additional Shares of Common Stock deemed
issued as the result of the original issue of such Option or Convertible
Security shall not be deemed issued for the purposes of any subsequent
adjustment of the Series A Conversion Price;
(D) In the event of any change in the number of shares of
Common Stock issuable upon the exercise, conversion or exchange of any such
Option or Convertible Security, including, but not limited to, a change
resulting from the anti-dilution provisions thereof, the Series A Conversion
Price then in effect shall forthwith be readjusted to
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such Series A Conversion Price as would have obtained had the adjustment which
was made upon the issuance of such Option or Convertible Security not exercised,
converted or exchanged prior to such change been made upon the basis of such
change; and
(E) No readjustment pursuant to clause (B) or (D) above
shall have the effect of increasing the Series A Conversion Price to an amount
which exceeds the lower of (i) the Series A Conversion Price on the original
adjustment date, or (ii) the Series A Conversion Price that would have resulted
from any issuances of Additional Shares of Common Stock between the original
adjustment date and such readjustment date.
In the event the Corporation, after the Series A Original Issue Date,
amends the terms of any such Options or Convertible Securities (whether such
Options or Convertible Securities were outstanding on the Series A Original
Issue Date or were issued after the Series A Original Issue Date), then such
Options or Convertible Securities, as so amended, shall be deemed to have been
issued after the Series A Original Issue Date and the provisions of this
Subsection 4(d)(iii) shall apply.
(iv) Adjustment of Series A Conversion Price Upon Issuance of
Additional Shares of Common Stock.
In the event the Corporation shall at any time after the Series A Original
Issue Date issue Additional Shares of Common Stock (including Additional Shares
of Common Stock deemed to be issued pursuant to Section 4(d)(iii)), without
consideration or for a consideration per share less than the applicable Series A
Conversion Price in effect immediately prior to such issue, then and in such
event, such Series A Conversion Price shall be reduced, concurrently with such
issue, to a price (calculated to the nearest cent) determined by multiplying
such Series A Conversion Price by a fraction, (A) the numerator of which shall
be (1) the number of shares of Common Stock outstanding immediately prior to
such issue plus (2) the number of shares of Common Stock which the aggregate
consideration received or to be received by the Corporation for the total number
of Additional Shares of Common Stock so issued would purchase at such Series A
Conversion Price; and (B) the denominator of which shall be the number of shares
of Common Stock outstanding immediately prior to such issue plus the number of
such Additional Shares of Common Stock so issued; provided that, (i) for the
purpose of this Section 4(d)(iv), all shares of Common Stock issuable upon
conversion or exchange of Convertible Securities outstanding immediately prior
to such issue shall be deemed to be outstanding, and (ii) the number of shares
of Common Stock deemed issuable upon conversion or exchange of such outstanding
Convertible Securities shall not give effect to any adjustments to the
conversion or exchange price or conversion or exchange rate of such Convertible
Securities resulting from the issuance of Additional Shares of Common Stock that
is the subject of this calculation.
(v) Determination of Consideration. For purposes of this
Subsection 4(d), the consideration received by the Corporation for the issue of
any Additional Shares of Common Stock shall be computed as follows:
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(A) Cash and Property: Such consideration shall:
(I) insofar as it consists of cash, be computed at the
aggregate of cash received by the Corporation,
excluding amounts paid or payable for accrued
interest;
(II) insofar as it consists of property other than
cash, be computed at the fair market value thereof
at the time of such issue, as determined in good
faith by the Board of Directors; and
(III) in the event Additional Shares of Common Stock are
issued together with other shares or securities or
other assets of the Corporation for consideration
which covers both, be the proportion of such
consideration so received, computed as provided in
clauses (I) and (II) above, as determined in good
faith by the Board of Directors.
(B) Options and Convertible Securities. The consideration
per share received by the Corporation for Additional Shares of Common Stock
deemed to have been issued pursuant to Section 4(d)(iii), relating to Options
and Convertible Securities, shall be determined by dividing
(x) the total amount, if any, received or receivable by
the Corporation as consideration for the issue of such Options or Convertible
Securities, plus the minimum aggregate amount of additional consideration (as
set forth in the instruments relating thereto, without regard to any provision
contained therein for a subsequent adjustment of such consideration) payable to
the Corporation upon the exercise of such Options or the conversion or exchange
of such Convertible Securities, or in the case of Options for Convertible
Securities, the exercise of such Options for Convertible Securities and the
conversion or exchange of such Convertible Securities, by
(y) the maximum number of shares of Common Stock (as set
forth in the instruments relating thereto, without regard to any provision
contained therein for a subsequent adjustment of such number) issuable upon the
exercise of such Options or the conversion or exchange of such Convertible
Securities.
(e) Adjustment for Stock Splits and Combinations. If the Corporation
shall at any time or from time to time after the Series A Original Issue Date
effect a subdivision of the outstanding Class A Common Stock, the Series A
Conversion Price then in effect immediately before that subdivision shall be
proportionately decreased. If the Corporation shall at any time or from time to
time after the Series A Original Issue Date combine the outstanding shares of
Class A Common Stock, the Series A Conversion Price then in effect immediately
before the combination shall be proportionately increased. Any adjustment under
this paragraph shall
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become effective at the close of business on the date the subdivision or
combination becomes effective.
(f) Adjustment for Certain Dividends and Distributions. In the event
the Corporation at any time, or from time to time after the Series A Original
Issue Date shall make or issue, or fix a record date for the determination of
holders of Common Stock entitled to receive, a dividend or other distribution
payable in additional shares of Common Stock, then and in each such event the
Series A Conversion Price then in effect immediately before such event shall be
decreased as of the time of such issuance or, in the event such a record date
shall have been fixed, as of the close of business on such record date, by
multiplying the Series A Conversion Price then in effect by a fraction:
(1) the numerator of which shall be the total number of shares
of Class A Common Stock issued and outstanding immediately prior to
the time of such issuance or the close of business on such record
date, and
(2) the denominator of which shall be the total number of shares
of Class A Common Stock issued and outstanding immediately prior to
the time of such issuance or the close of business on such record
date plus the number of shares of Class A Common Stock issuable in
payment of such dividend or distribution;
provided, however, if such record date shall have been fixed and such dividend
is not fully paid or if such distribution is not fully made on the date fixed
therefor, the Series A Conversion Price shall be recomputed accordingly as of
the close of business on such record date and thereafter the Series A Conversion
Price shall be adjusted pursuant to this paragraph as of the time of actual
payment of such dividends or distributions.
(g) Adjustment for Merger or Reorganization, etc. Subject to the
provisions of Section 2(c), if there shall occur any reorganization,
recapitalization, consolidation or merger involving the Corporation in which the
Class A Common Stock (but not the Series A Preferred Stock) is converted into or
exchanged for securities, cash or other property (other than a transaction
covered by paragraphs (e) or (f) of this Section 4), then, following any such
reorganization, recapitalization, consolidation or merger, each share of Series
A Preferred Stock shall be convertible into the kind and amount of securities,
cash or other property which a holder of the number of shares of Class A Common
Stock of the Corporation issuable upon conversion of one share of Series A
Preferred Stock immediately prior to such reorganization, recapitalization,
consolidation or merger would have been entitled to receive pursuant to such
transaction; and, in such case, appropriate adjustment (as determined in good
faith by the Board of Directors) shall be made in the application of the
provisions in this Section 4 set forth with respect to the rights and interest
thereafter of the holders of the Series A Preferred Stock, to the end that the
provisions set forth in this Section 4 (including provisions with respect to
changes in and other adjustments of the Series A Conversion Price) shall
thereafter be applicable, as nearly as reasonably may be, in relation to any
shares of stock or other property thereafter deliverable upon the conversion of
the Series A Preferred Stock.
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(h) No Impairment. The Corporation will not, by amendment of its
Certificate of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed hereunder by the Corporation, but will at
all times in good faith assist in the carrying out of all the provisions of this
Section 4 and in the taking of all such action as may be necessary or
appropriate in order to protect the Conversion Rights of the holders of the
Series A Preferred Stock against impairment.
(i) Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment of the Series A Conversion Price pursuant to this
Section 4, the Corporation at its expense shall promptly compute such adjustment
or readjustment in accordance with the terms hereof and furnish to each holder
of Series A Preferred Stock a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or
readjustment is based. The Corporation shall, upon the written request at any
time of any holder of Series A Preferred Stock, furnish or cause to be furnished
to such holder a certificate setting forth (i) the Series A Conversion Price
then in effect, and (ii) the number of shares of Class A Common Stock and the
amount, if any, of other securities, cash or property which then would be
received upon the conversion of Series A Preferred Stock.
(j) Notice of Record Date. In the event:
(i) the Corporation shall take a record of the holders of its
Class A Common Stock (or other stock or securities at the time issuable upon
conversion of the Series A Preferred Stock) for the purpose of entitling or
enabling them to receive any dividend or other distribution, or to receive any
right to subscribe for or purchase any shares of stock of any class or any other
securities, or to receive any other right; or
(ii) of any capital reorganization of the Corporation, any
reclassification of the Class A Common Stock of the Corporation, any
consolidation or merger of the Corporation with or into another corporation
(other than a consolidation or merger in which the Corporation is the surviving
entity and its Class A Common Stock is not converted into or exchanged for any
other securities or property), or any transfer of all or substantially all of
the assets of the Corporation; or
(iii) of the voluntary or involuntary dissolution, liquidation
or winding-up of the Corporation,
then, and in each such case, the Corporation will mail or cause to be mailed to
the holders of the Series A Preferred Stock a notice specifying, as the case may
be, (i) the record date for such dividend, distribution or right, and the amount
and character of such dividend, distribution or right, or (ii) the effective
date on which such reorganization, reclassification, consolidation, merger,
transfer, dissolution, liquidation or winding-up is to take place, and the time,
if any is to be fixed, as of which the holders of record of Class A Common Stock
(or such other stock or securities at the time issuable upon the conversion of
the Series A Preferred Stock) shall be entitled to exchange their shares of
Common Stock (or such other stock or securities) for securities or other
property deliverable upon such reorganization, reclassification, consolidation,
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merger, transfer, dissolution, liquidation or winding-up. Such notice shall be
mailed at least 10 days prior to the record date or effective date for the event
specified in such notice.
5. Mandatory Conversion.
(a) In the event that the Corporation elects to (and is eligible to)
redeem less than all of the issued and outstanding shares of Series A Preferred
Stock pursuant to Section 6(a), then, upon such redemption, the Corporation may,
but is not obligated, to cause the remaining shares of Series A Preferred Stock
which were not redeemed to be automatically converted into shares of Class A
Common Stock at the then effective conversion ratio. On the date of a mandatory
conversion pursuant to this Section 5 (a) ("Mandatory Conversion Date"), the
number of authorized shares of Preferred Stock shall be automatically reduced by
the number of shares of Preferred Stock that had been designated as Series A
Preferred Stock, and all provisions included under the caption "Series A
Convertible Preferred Stock", and all references to the Series A Preferred
Stock, shall be deleted and shall be of no further force or effect.
(b) All holders of record of shares of Series A Preferred Stock
shall be given written notice of the Mandatory Conversion Date and the place
designated for mandatory conversion of such shares of Series A Preferred Stock
pursuant to this Section 5 and the redemption of the remaining shares of Series
A Preferred Stock pursuant to Section 6 and Section 7. Such notice shall be sent
by first class or registered mail, postage prepaid, mailed not less than 30 days
nor more than 60 days prior to the Mandatory Redemption Date to each holder of
record of the Series A Preferred Stock at such holder's address as the same
appears on the stock register of the Corporation; provided that neither the
failure to give such notice nor any defect therein shall affect the validity of
the giving of notice for the mandatory conversion of any share of any share of
Series A Preferred Stock to be 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. Upon receipt of such notice, each holder of shares of
Series A Preferred Stock shall surrender his or its certificate or certificates
for all such shares to the Corporation at the place designated in such notice,
and shall thereafter receive certificates for the number of shares of Class A
Common Stock to which such holder is entitled pursuant to this Section 5. On the
Mandatory Conversion Date, the number of shares of the outstanding shares of
Series A Preferred Stock not redeemed in accordance with Section 6(a) shall be
deemed to have been converted into shares of Class A Common Stock and all rights
set forth herein with respect to the Series A Preferred Stock so converted,
including the rights, if any, to receive notices and vote (other than as a
holder of Class A Common Stock) will terminate, except only the rights of the
holders thereof, upon surrender of their certificate or certificates therefor,
to receive certificates for the number of shares of Class A Common Stock into
which such Series A Preferred Stock has been converted, and payment of any
declared but unpaid dividends thereon. If so required by the Corporation,
certificates surrendered for conversion shall be endorsed or accompanied by
written instrument or instruments of transfer, in form satisfactory to the
Corporation, duly executed by the registered holder or by his or its attorney
duly authorized in writing. As soon as practicable after the Mandatory
Conversion Date and the surrender of the certificate or certificates for Series
A Preferred Stock, the Corporation shall cause to be issued and delivered to
such holder, or on his or its written order, a certificate or certificates for
the number of full shares of Class A Common Stock issuable on such conversion in
accordance with the provisions
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hereof and cash as provided in Section 4(b) in respect of any fraction of a
share of Class A Common Stock otherwise issuable upon such conversion.
(c) All certificates evidencing shares of Series A Preferred Stock
which are required to be surrendered for conversion in accordance with the
provisions hereof shall, from and after the Mandatory Conversion Date, be deemed
to have been retired and cancelled and the shares of Series A Preferred Stock
represented thereby converted into Class A Common Stock for all purposes,
notwithstanding the failure of the holder or holders thereof to surrender such
certificates on or prior to such date. Such converted Series A Preferred Stock
may not be reissued, and the Corporation will thereafter take such appropriate
action (without the need for stockholder action) as may be necessary to reduce
the authorized number of shares of Series A Preferred Stock accordingly.
6. Redemption.
(a) Subject to the right of the holders of Series A Preferred Stock
to convert such shares in accordance with Section 4 hereof, beginning on the
third anniversary of the Closing Date and continuing until the seventh
anniversary of the Closing Date, the Corporation may redeem at its option all of
the issued and outstanding shares of Series A Preferred Stock, at any time at a
redemption price per share in cash (the "Optional Redemption Price") equal to
the greater of (i) 90% of the Current Market Value of the number of shares of
Class A Common Stock into which a share of Series A Preferred Stock could be
converted by the holder on the date of the notice of redemption pursuant to
Section 7(b) or (ii) an amount which will provide the holders of the Series A
Preferred Stock with a 30% IRR on Original Investment to the date of redemption;
provided that if the redemption occurs prior to the fourth anniversary of the
Closing Date, the Optional Redemption Price shall not be less than the greater
of (i) a 30% IRR on Original Investment and (ii) a Return on Investment of Three
Times the Original Investment, in each case to the date of redemption; provided,
further, that in the event the Optional Redemption Price is equal to 90% of the
Current Market Value of the number of shares of Class A Common Stock into which
a share of Series Preferred Stock could be converted on the date of the notice
of redemption pursuant to Section 7(b), then the Corporation may redeem less
than all (but in no event less than 50%) of the issued and outstanding shares of
Series A Preferred Stock.
(b) Promptly following the occurrence of a Change of Control, the
Corporation shall notify (a "Change of Control Notice") the holders of the
Series A Preferred Stock of such occurrence. Within thirty days after the
Corporation sends a Change of Control Notice, each holder of shares of Series A
Preferred Stock shall have the option to the extent the Corporation shall have
funds legally available therefor, to require the Corporation to redeem such
holder's shares of Series A Preferred Stock, or such portion thereof as may be
determined by such holder, at a redemption price per share (the "Elective
Redemption Price") in cash equal to the Liquidation Value as of the date of the
Change of Control (which date shall be the redemption date for purposes hereof).
Any election pursuant to this Section 6(b) must be made by written notice
delivered to the offices of the Corporation, accompanied by certificates
representing the shares to be redeemed within thirty days following the mailing
of the Change of Control Notice. Such notice shall be signed by the holder of
the shares to be redeemed and must specify the number of shares to be redeemed.
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(c) All outstanding shares of Series A Preferred Stock shall be
redeemed by the Corporation at a price per share equal to the Liquidation Value
plus all accrued but unpaid dividends that have not been added to the Accreted
Value in accordance with Section 1(a) as of the date of redemption (the
"Mandatory Redemption Price") on the seventh anniversary of the Closing Date
(the "Mandatory Redemption Date"). If the Corporation does not have sufficient
funds legally available to redeem the Series A Preferred Stock on the Mandatory
Redemption Date, the Corporation shall redeem a pro rata portion of each
holder's shares of Series A Preferred Stock out of funds legally available
therefor and shall redeem the remaining shares to have been redeemed as soon as
practicable after the Corporation has funds legally available therefor.
(d) If the Corporation is unable or shall fail to discharge its
obligation to redeem all outstanding shares of Series A Preferred Stock pursuant
to Section 6(c) (a "Mandatory Redemption Obligation") for any reason, including
as a result of the failure of the Corporation to have funds legally available to
make such redemption, the Mandatory Redemption Obligation shall be discharged as
soon as the Corporation is able to discharge such Mandatory Redemption
Obligation and the Board of Directors shall take all action commercially
reasonable to enable the Corporation to discharge such Mandatory Redemption
Obligation, including without limitation increasing the capital surplus of the
Corporation if possible. If and so long as any Mandatory Redemption Obligation
with respect to the Series A Preferred Stock shall not be fully discharged, the
Corporation shall not (i) declare or pay any dividend or distribution with
respect to, or directly or indirectly, redeem, purchase, or otherwise acquire
any Parity Stock or discharge any mandatory or optional redemption, sinking fund
or other similar obligation in respect of any Parity Stock or Junior Stock
(except in connection with a redemption, sinking fund or other similar
obligation to be satisfied pro rata with the Series A Preferred Stock and except
for dividends on Parity Stock which are payable solely in additional shares of
or by the increase in the liquidation value of Parity Stock, in each case,
pursuant to the terms thereof) or (ii) declare or pay any dividend or
distribution with respect to, or directly or indirectly redeem, purchase, or
otherwise acquire, any Junior Stock, or, directly or indirectly, discharge any
mandatory or optional redemption, sinking fund or other similar obligation in
respect of any Junior Stock (other than a redemption, purchase or other
acquisition of shares of Common Stock made pursuant to an employee incentive or
benefit plan or arrangement of the Corporation or any subsidiary or other
agreement or arrangement between an employee and the Corporation or any
subsidiary approved by the Board of Directors or any committee thereof and other
than dividends on Junior Stock which are payable solely in additional shares of
or by the increase in the liquidation value of Junior Stock, in each case,
pursuant to the terms thereof).
(e) Shares of Series A Preferred Stock which have been redeemed
pursuant to this Section 6 will be cancelled and will not under any
circumstances be reissued, sold or transferred and the Corporation will from
time to time take such appropriate action as may be necessary to reduce the
authorized Series A Preferred Stock accordingly.
7. Procedure for Redemption.
(a) In the event that fewer than all the outstanding shares of
Series A Preferred Stock are to be redeemed in accordance with the provisions of
Section 6(a) (which in no event shall be less than 50% of the then outstanding
Series A Preferred Stock), the number of
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shares to be redeemed shall be determined by the Board of Directors and the
shares to be redeemed shall be selected pro rata (with any fractional shares
being rounded to the nearest whole share).
(b) In the event the Corporation shall redeem shares of Series A
Preferred Stock pursuant to Section 6(a) or Section 6(c), notice of such
redemption shall be given by first class or registered mail, postage prepaid,
mailed not less than 30 days nor more than 60 days prior to the redemption date,
to each holder of record of the shares to be redeemed at such holder's address
as the same appears on the stock register of the Corporation; provided that
neither the failure to give such notice nor any defect therein shall affect the
validity of the giving of notice for the redemption of any share of Series A
Preferred Stock to be redeemed 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: (i) the redemption date; (ii) the
number of shares of Series A Preferred Stock to be redeemed and, if fewer than
all the shares held by such holder are to be redeemed in accordance with Section
6(a), the number of shares to be redeemed from such holder; (iii) the Optional
Redemption Price or the Mandatory Redemption Price, as the case may be; and (iv)
the place or places where certificates for such shares are to be surrendered for
payment of the Optional Redemption Price or the Mandatory Redemption Price, as
the case may be.
(c) Notice having been received by the Corporation as set forth in
Section 6(b) or having been mailed by the Corporation as set forth in Section
7(b), from and after the redemption date, dividends on the shares of Series A
Preferred Stock so called pursuant to Section 6(a) or Section 6(c), or
surrendered for redemption pursuant to Section 6(b), shall cease to accrue, and
all rights of the holders thereof as stockholders of the Corporation (except the
right to receive from the Corporation the Optional Redemption Price, the
Mandatory Redemption Price or the Elective Redemption Price, as the case may be)
shall cease. Upon surrender in accordance with said notice of the certificates
for any shares so redeemed (properly endorsed or assigned for transfer, if the
Board of Directors shall so require and the notice shall so state), such share
shall be redeemed by the Corporation at the Optional Redemption Price, the
Mandatory Redemption Price or the Elective Redemption Price, as the case may be.
(d) Unless there shall have been a failure to pay the Optional
Redemption Price, the Mandatory Redemption Price or the Elective Redemption
Price, as applicable, on the applicable redemption date all rights of the holder
of each share redeemed on such date as a stockholder of the Corporation by
reason of the ownership of such share will cease, except the right to receive
the Optional Redemption Price, the Mandatory Redemption Price or the Elective
Redemption Price, as applicable, of such share, without interest, upon
presentation and surrender of the certificate representing such share, and such
share will not from and after such applicable redemption date be deemed to be
outstanding.
8. Definitions.
"A 30% IRR on Original Investment" shall mean in connection with the
redemption of any share of Series A Preferred Stock, a 30% internal rate of
return on investment to the holder of such share, calculated from the date of
issuance of such share of Series A Preferred Stock to
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the date of receipt of the Optional Redemption Price and based on the
Liquidation Value of such share on the date of issuance and the Optional
Redemption Price.
"A Return on Investment of Three Times the Original Investment" shall mean
in connection with the redemption of any share of Series A Preferred Stock, the
receipt by the holder of such share of an amount equal to or greater than three
times (3x) the Liquidation Value of such share as of the date of issuance.
"Accreted Value" means, with respect to one share of Series A Preferred
Stock, the amount equal to $1,000.00 plus the amount of any dividends added to
the Accreted Value in accordance with Section 1(a) (which aggregate amount shall
be subject to adjustment whenever there shall occur a stock split, combination,
reclassification, or other similar event involving the Series A Preferred Stock
occurring after the Closing Date).
"Change of Control" means the occurrence of any of the following events:
(a) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d)
of the Exchange Act) other than holders of the Series A Preferred Stock or John
or Douglas Casella becomes the "beneficial owner" (as defined in Rule 13d-3 and
13d-5 under the Exchange Act) of more than 50% of the total voting stock of the
Corporation or (b) during any consecutive two-year period, individuals who at
the beginning of such period constituted the Board of Directors (together with
any new directors whose election by the Board of Directors or whose nomination
for election by the stockholders of the Corporation was approved by a vote of a
majority of the directors then still in office who were either directors at the
beginning of such period or whose election or nomination for election was
previously so approved or whose nomination was made by the holders of the Series
A Preferred Stock) cease for any reason to constitute a majority of the Board of
Directors then in office other than pursuant to provisions of the Purchase
Agreement relating to nomination, election, resignation or removal of directors
under certain circumstances described therein; provided, however, that a "Change
of Control" shall not include any event which is deemed to be a liquidation of
the Corporation for purposes of Section 2 or any merger or consolidation of the
Corporation immediately after which holders of the outstanding voting stock of
the Corporation immediately prior to such transaction hold 50% or more of the
outstanding voting stock of the surviving company or its parent company.
"Class A Common Stock" shall mean the Corporation's Class A Common Stock,
par value $0.01 per share, and any other capital stock of the Corporation into
which such stock is reclassified or reconstituted.
"Closing Date" shall have the meaning given such term in the Purchase
Agreement.
"Common Stock" shall mean the Class A Common Stock, the Corporation's
Class B Common Stock, par value $0.01 per share, and any other class of common
stock of the Corporation created after the date hereof.
"Current Market Value" means the average of the daily Market Prices of the
Class A Common Stock for 15 consecutive trading days immediately preceding the
date for which such value is to be determined.
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"Liquidation Value" means, at a given time with respect to one share of
Series A Preferred Stock, the Accreted Value as of such time.
"Market Price" means, with respect to the Class A Common Stock, on any
given day, (i) the price of the last trade, as reported on the Nasdaq Stock
Market, not identified as having been reported late to such system, or (ii) if
the Class A Common Stock is so traded, but not so quoted, the average of the
last bid and ask prices, as those prices are reported on the Nasdaq Stock
Market, or (iii) if the Class A Common Stock is not listed or authorized for
trading on the Nasdaq Stock Market or any comparable system, the average of the
closing bid and asked prices as furnished by two members of the National
Association of Securities Dealers, Inc. selected from time to time by the
Corporation for that purpose. If the Class A Common Stock is not listed and
traded in a manner that the quotations referred to above are available for the
period required hereunder, the Market Price per share of Class A Common Stock
shall be deemed to be the fair value per share of such security as determined in
good faith by the Board of Directors of the Corporation.
"Parity Stock" means any class of capital stock of the Corporation or
series of Preferred Stock of the Corporation established hereafter by the Board
of Directors, the terms of which expressly provide that such class or series
will rank on a parity with the Series A Preferred Stock as to dividend rights
and rights on liquidation, winding-up and dissolution.
"Preferred Stock" shall mean the Corporation's preferred stock, par value
$0.01 per share.
"Purchase Agreement" means the Preferred Stock Purchase Agreement dated as
of June 28, 2000 among the Corporation and the purchasers named therein.
9. Waiver. Any of the rights of the holders of Series A Preferred Stock
set forth herein may be waived by the affirmative vote of the holders of a
majority of the shares of Series A Preferred Stock then outstanding.
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IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Designation to be signed by its President this 8th day of August, 2000.
CASELLA WASTE SYSTEMS, INC.
By: /s/ John W. Casella
--------------------------------
John W. Casella, President
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