[Irell & Manella Letterhead]
(213) 229-0594
February 10, 1995
VIA EDGAR
Securities and Exchange Commission
450 - 5th Street, N.W.
Washington, D.C. 20549
Re: Teledyne, Inc. ("Teledyne")
Commission File No. 1-5212
Gentlemen:
Enclosed for filing pursuant to Section 12(b) of the
Securities Exchange Act of 1934, as amended, is one complete
copy of a Form 8-A Registration Statement (the "Form 8-A") of
Teledyne relating to Series E Cumulative Preferred Stock (the
"Preferred Stock") to be issued to Teledyne's shareholders of
record as of the close of business on February 15, 1995 as a
dividend. The filing fee of $250.00 has been paid as
provided in the EDGAR rules.
Please note that accelerated effectiveness of this
Registration Statement is requested to occur as soon as
possible and in any event prior to the March 8, 1995 payment
date.
A listing application for the Preferred Stock is
concurrently herewith being filed with the New York Stock
Exchange, on which Teledyne's common stock is listed.
Sincerely,
Henry Lesser
HL:rng
Enclosures
cc: New York Stock Exchange
Pacific Stock Exchange
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
TELEDYNE, INC.
- ------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 95-2282626
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(State of incorporation or organization) (I.R.S. Employer Identification No.)
1901 Avenue of the Stars
Los Angeles, California 90067-6046
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(Address of principal executive offices and zip code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
------------------- ------------------------------
Teledyne, Inc. Series E New York Stock Exchange
Cumulative Preferred Stock
Securities to be registered pursuant to Section 12(g) of the Act:
Not Applicable
- --------------------------------------------------------------------------------
(Title of Class)
Item 1. Description of Securities to be Registered.
On January 25, 1995, the Board of Directors of Teledyne,
Inc. (the "Corporation") declared a dividend that included as
a component one-one-hundredth (1/100th) of a share of Series E
Cumulative Preferred Stock (the "Series E Cumulative Preferred
Stock") for each outstanding share of the Corporation's common
stock, par value $1.00 per share (the "Common Stock"), such
shares of Series E Cumulative Preferred Stock to be issuable
with a stated value of $15.00 per share (with cash being paid
in lieu of fractional shares such that each holder of record
of one hundred shares of Common Stock will receive one share
of Series E Cumulative Preferred Stock). The dividend is
payable on March 8, 1995 to stockholders of record on February
15, 1995.
The following summary of terms of the Series E Cumulative
Preferred Stock contained in this Registration Statement does
not purport to be complete and is subject to, and is qualified
in its entirety by, the provisions of the Corporation's
Restated Certificate of Incorporation, as amended (the
"Certificate of Incorporation"), including the Certificate of
Designation, Preferences and Rights of the Series E Cumulative
Preferred Stock (the "Certificate of Designation"), copies of
which are exhibits to this Registration Statement and are
hereby incorporated herein by reference.
The Certificate of Incorporation authorizes the issuance
of 15,000,000 shares of preferred stock, par value $1.00 per
share ("preferred stock"). No shares of preferred stock are
currently outstanding, although 100,000 shares of Series D
Preferred Stock have been reserved for issuance pursuant to
the Preferred Share Purchase Rights of the Corporation
currently outstanding. The preferred stock may be issued from
time to time in one or more series, without stockholder
approval, with such powers, preferences, and relative,
participating, optional or other special rights, and
qualifications, limitations and restrictions as shall be
established by the Board of Directors. Thus, without
stockholder approval, the Corporation could authorize the
issuance of preferred stock with voting, conversion and other
rights that could dilute the voting power and affect the other
rights of the holders of the Corporation's Common Stock.
General
The Certificate of Designation establishes the series of
Series E Cumulative Preferred Stock and authorizes the
issuance of up to 2,500,000 shares thereof. When issued, the
Series E Cumulative Preferred Stock will be validly issued,
fully paid and nonassessable. The holders of the Series E
Cumulative Preferred Stock will have no preemptive rights with
respect to any shares of capital stock of the Corporation or
any other securities of the Corporation convertible into or
carrying rights or options to purchase any such shares. The
Series E Cumulative Preferred Stock will not be subject to any
sinking fund or other obligation of the Corporation to redeem
or retire the Series E Cumulative Preferred Stock. Unless
redeemed by the Corporation, the Series E Cumulative Preferred
Stock will have a perpetual maturity. Application will be
made for listing of the Series E Cumulative Preferred Stock on
the New York Stock Exchange under the symbol "TDYPrE." Any
Series E Cumulative Preferred Stock redeemed or otherwise
acquired by the Corporation will, upon cancellation of such
shares, have the status of authorized but unissued preferred
stock without designation as to series.
Ranking
The Series E Cumulative Preferred Stock will rank junior
to any shares of preferred stock which by their terms are
expressly made senior to the Series E Cumulative Preferred
Stock ("Senior Shares") both as to dividends and as to the
distribution of assets on any voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation, and
will rank on parity with any shares of preferred stock which
by their terms are expressly placed on parity with the Series
E Cumulative Preferred Stock ("Parity Shares") with respect to
such matters. The Series E Cumulative Preferred Stock will
rank senior to the Common Stock, any additional class of
common stock and any series of preferred stock expressly made
junior to the Series E Cumulative Preferred Stock ("Junior
Shares") both as to dividends and as to the distribution of
assets on any voluntary or involuntary liquidation,
dissolution or winding-up of the Corporation. The Corporation
has the right to create Senior Shares, Parity Shares, Junior
Shares and new series of Common Stock, increase the authorized
number of Senior Shares, Parity Shares, Junior Shares and
shares of Common Stock, and issue additional Senior Shares,
Parity Shares, Junior Shares and shares of Common Stock
without the consent of any holder of shares of Series E
Cumulative Preferred Stock. See "Voting Rights" below.
Dividends
Subject to the limitations discussed below, holders of
shares of Series E Cumulative Preferred Stock are entitled to
receive, when and as declared by the Board of Directors out of
funds legally available therefor, cumulative dividends from
the date of the initial issuance of any particular shares of
Series E Cumulative Preferred Stock at the rate of $1.20 per
share of Series E Cumulative Preferred Stock annum. Such
semi-annual dividends, whether or not declared out of funds
legally available therefor, will be "due," for all purposes of
the Certificate of Designation, semi-annually on March 1 and
September 1 in each year (a "Dividend Payment Date"),
commencing with the first such date that occurs following the
date of issuance of particular shares (and, in the case of any
due on unpaid dividends, at such additional times as
determined by the Board of Directors). Each such dividend
will be due and payable to holders of record as they appear on
the stock records of the Corporation at the close of business
on such record dates, not exceeding 60 days preceding the
payment dates thereof, as may be fixed by the Board of
Directors of the Corporation. Unpaid dividends on shares of
Series E Cumulative Preferred Stock will not bear interest.
The amount of dividends due for shares of Series E Cumulative
Preferred Stock for each dividend period (including the
dividend period during which such shares were issued) shall be
$0.60 per share, without proration on the basis of the length
of time any particular shares of Series E Cumulative Preferred
Stock have been outstanding or otherwise. If at any time the
Corporation has failed to pay accrued dividends on any Senior
Shares at the time such dividends are payable or has failed to
make any sinking fund or mandatory redemption payments on
Senior Shares, the Corporation may not pay any dividend on the
Series E Cumulative Preferred Stock.
If at any time the Corporation has failed to pay
dividends on any shares of Series E Cumulative Preferred Stock
at the time such dividends are due, or if the Corporation has
defaulted in providing funds for the payment of the redemption
price of any shares of Series E Cumulative Preferred Stock
called for redemption or has defaulted in its obligations
regarding the payment of dividends with respect to shares of
Series E Cumulative Preferred Stock called for redemption, the
Corporation shall not (i) authorize, create or issue any new
shares of Series E Cumulative Preferred Stock, other than to
the extent that the Corporation has, prior to such failure or
default, irrevocably declared a dividend obligating the
Corporation to do so, (ii) declare, pay or set aside for
payment any dividend on the shares of Common Stock, on any
Junior Shares or on any Parity Shares or make any payment on
account of, or set apart money for a sinking or other
analogous fund for, the purchase, redemption or other
acquisition of, any shares of Common Stock, any Junior Shares
or any Parity Shares or make any distribution in respect
thereof, either directly or indirectly and whether in cash or
property or in obligations or shares of the Corporation (other
than in shares of Common Stock or Junior Shares),
(iii) purchase any shares of Series E Cumulative Preferred
Stock or Parity Shares (except for consideration payable in
shares of Common Stock or Junior Shares), or redeem fewer than
all of the shares of Series E Cumulative Preferred Stock then
outstanding, or (iv) permit any corporation or other entity, a
majority of the voting power, equity securities or equity
interest of which is owned directly or indirectly by the
Corporation (a "Subsidiary"), to purchase any shares of Common
Stock, Junior Shares, Parity Shares or Series E Cumulative
Preferred Stock, unless, in each case, (i) all due but unpaid
dividends on the Series E Cumulative Preferred Stock have been
or contemporaneously are declared and paid in full or declared
and a sum sufficient for payment of such dividends has been
irrevocably set aside in trust and (ii) all defaults with
respect to the Company's obligations relating to any shares of
Series E Cumulative Preferred Stock called for redemption have
been cured.
Redemption
The shares of Series E Cumulative Preferred Stock will be
redeemable at any time at the option of the Corporation, in
whole but not in part, out of funds legally available for such
purpose, at a redemption price per share of $15.00. In
addition, the Corporation will be required to redeem the
shares of Series E Cumulative Preferred Stock in whole upon
the occurrence of a "Change of Control" (as defined below),
out of funds legally available for such purpose, at a
redemption price per share of $16.50. "Change of Control"
shall mean, in general, either (a) the acquisition by any
person, entity or group of beneficial ownership of fifty
percent (50%) or more of the combined voting power of the
Corporation's outstanding securities, or (b) any merger,
consolidation or reorganization to which the Corporation is a
party, or any sale, assignment, lease, conveyance or other
disposition of all or substantially all of the Corporation's
assets, in one transaction or a series of related
transactions, to any person other than a Subsidiary, unless,
immediately following the consummation of such transaction or
series of related transactions, the persons who were the
Corporation's stockholders immediately before such
consummation are the beneficial owners of at least fifty
percent (50%) of the combined voting power of the then
outstanding securities of the surviving, resulting or
transferee corporation in substantially the same proportion as
their ownership of the combined voting power of the then
outstanding securities of the Corporation immediately prior to
such consummation. However, an acquisition of voting
securities of the Corporation either (i) from the Corporation
or (ii) by (a) an employee benefit plan (or a trust forming a
part thereof) maintained by the Corporation or any Subsidiary,
(b) the Corporation or (c) any Subsidiary.
Immediately prior to any redemption of shares of Series E
Cumulative Preferred Stock, the Corporation shall pay in cash,
or irrevocably set aside in trust for payment in cash, out of
funds legally available for such purpose, the aggregate of (i)
any dividends due and unpaid in respect of any dividend period
that has ended prior to the redemption date specified in the
notice described below and (ii) the dividend that would be due
pursuant to the Certificate in respect of the dividend period
during which the redemption date occurs. If such redemption
date falls after a dividend payment record date and prior to
the corresponding Dividend Payment Date, then each holder of
record of shares of Series E Cumulative Preferred Stock at the
close of business on such dividend payment record date shall
be entitled to the dividend due on such shares on the
corresponding Dividend Payment Date notwithstanding the
redemption of such shares before such Dividend Payment Date.
Unless the Corporation shall default in providing funds for
the payment of the redemption price of the shares of Series E
Cumulative Preferred Stock or shall default in its obligations
regarding the payment of dividends with respect to shares of
Series E Cumulative Preferred Stock called for redemption, the
Corporation shall make no payment or allowance for unpaid
dividends on shares of Series E Cumulative Preferred Stock
called for redemption.
Notice of redemption will be given to the holders of the
Series E Cumulative Preferred Stock by first class mail,
postage prepaid, not less than thirty (30) days nor more than
sixty (60) days prior to the redemption date, in the case of
an optional redemption, or not less than ten (10) days nor
more than sixty (60) days prior to the redemption date, in the
case of a mandatory redemption. The redemption date will be
the date specified in the notice of redemption given to the
holders of Series E Cumulative Preferred Stock and, in the
case of a mandatory redemption, will be the thirtieth (30th)
business day after the date of the Change of Control. A
summary of such notice will also be provided by publication in
The Wall Street Journal or The New York Times.
From and after the redemption date (unless the
Corporation defaults in providing funds for the payment of the
redemption price of the shares called for redemption at the
time and place specified in the notice or defaults in its
obligations regarding the payment of dividends with respect to
shares of Series E Cumulative Preferred Stock called for
redemption), (i) such shares will no longer be deemed to be
outstanding, and (ii) all rights of the holders thereof as
holders of shares of Series E Cumulative Preferred Stock will
cease (except the rights to receive the cash payable upon such
redemption, without interest from the date of such redemption,
upon surrender and endorsement of their certificates if so
required and to receive dividends in accordance to the extent
described in the preceding paragraph.
Liquidation Preference
In the event of the voluntary or involuntary liquidation,
dissolution or winding-up of the Corporation, holders of any
shares of Series E Cumulative Preferred Stock are entitled to
receive the liquidation preference of $15.00 per share of
Series E Cumulative Preferred Stock, plus an amount equal to
the aggregate of (i) all dividends due and unpaid thereon in
respect of any dividend periods that have ended prior to the
date of final distribution to holders of Series E Cumulative
Preferred Stock (whether or not declared), and (ii) the
dividend that would be due in respect of the dividend period
during which the final distribution to such holders occurs,
such amount to be received before any distribution is made to
the holders of Junior Shares or shares of Common Stock, but
the holders of shares of Series E Cumulative Preferred Stock
will not be entitled to receive the liquidation preference of
such shares until the liquidation preference of any Senior
Shares at the time outstanding have been paid in full. The
holders of shares of Series E Cumulative Preferred Stock and
all Parity Shares (if any) are entitled to share ratably, in
accordance with the respective amounts payable thereon, in any
such distribution which is not sufficient to pay in full the
aggregate of the amounts payable thereon. After payment in
full of the liquidation preference of the Series E Cumulative
Preferred Stock, the holders of such shares are not entitled
to any further participation in any distribution of assets by
the Corporation. Neither a consolidation or merger to which
the Corporation is a party, nor the sale or transfer of all or
part of the Corporation's assets, will be considered a
voluntary or involuntary liquidation, dissolution or winding-
up of the Corporation.
Voting Rights
Holders of shares of Series E Cumulative Preferred Stock
will not have any voting rights except as described below or
as required by applicable law.
If at any time dividends on any shares of Series E
Cumulative Preferred Stock, whether or not declared, have not
been paid in an aggregate amount equal to or greater than
three semi-annual dividends on such shares (whether or not
consecutive), the number of directors constituting the whole
Board of Directors of the Corporation will automatically be
increased by two and the holders of the shares of Series E
Cumulative Preferred Stock, voting noncumulatively as a single
class, will be entitled to elect such additional two directors
to the Corporation's Board of Directors until all due and
unpaid dividends have been paid in full or declared and
irrevocably set aside in trust for payment.
The affirmative vote of at least two-thirds of the shares
of Series E Cumulative Preferred Stock, voting as a separate
class, is required to approve an amendment of any provision of
the Certificate of Incorporation or the Certificate of
Designation to alter or change the powers, preferences or
special rights (including voting powers and rights) of shares
of Series E Cumulative Preferred Stock so as to affect them
adversely. The same affirmative vote is required to approve
any merger, consolidation or reorganization pursuant to the
terms of which the Series E Cumulative Preferred Stock would
not remain outstanding in accordance with the terms of the
Certificate of Designation, unless the terms of such
transaction provide that the holders of shares of Series E
Cumulative Preferred Stock would receive at least the same
amount in cash per share as they would receive in connection
with a mandatory redemption that were to occur at the time of
the consummation of such merger, consolidation or
reorganization. The affirmative vote of at least three-
fourths of the shares of Series E Cumulative Preferred Stock,
voting as a single class, is required for the authorization or
creation of any shares of preferred stock that are not Senior
Shares, Parity Shares or Junior Shares. However, without
limiting such other actions as would not be deemed to alter or
change the powers, preferences or special rights (including
voting powers and rights) of holders of shares of Series E
Cumulative Preferred Stock so as to affect them adversely,
neither (i) the creation, authorization or issuance of any
Senior Shares, Parity Shares, Junior Shares or shares of
Common Stock, nor (ii) subject to the provisions of clause (i)
in the second paragraph under the caption "Dividends", above,
any increase in the authorized number of shares of Series E
Cumulative Preferred Stock set forth in the Certificate of
Designation will require the consent of the holders of Series
E Cumulative Preferred Stock or be deemed to alter or change
the powers, preferences or special rights (including voting
powers and rights) of holders of shares of Series E Cumulative
Preferred Stock so as to affect them adversely. In addition,
the above-described voting requirements do not apply if notice
of redemption of the shares of Series E Cumulative Preferred
Stock has been given and funds have been irrevocably deposited
in trust for such redemption.
Except as required by law, the holders of shares of
Series E Cumulative Preferred Stock will not be entitled to
vote on any merger or consolidation involving the Corporation
or a sale of all or substantially all of the assets of the
Corporation.
Because the shares of Series E Cumulative Preferred Stock
must be redeemed following a Change of Control, it is possible
that, depending on various factors, including the number of
shares of Series E Preferred Stock outstanding, the Series E
Cumulative Preferred Stock may have an effect on whether a
Change of Control occurs or the terms of any transaction
pursuant to which a Change of Control would occur.
Item 2. Exhibits.
1. Restated Certificate of Incorporation of Teledyne,
Inc., as amended (previously filed as Exhibit 3 to
the Corporation's Annual Report on Form 10-K for the
year ended December 31, 1991, and incorporated
herein by this reference).
2. Certificate of Designation, Preferences and Rights
of Teledyne, Inc. Series E Cumulative Preferred
Stock.
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the
Securities Exchange Act of 1934, the registrant has duly
caused this registration statement to be signed on its behalf
by the undersigned, thereto duly authorized.
TELEDYNE, INC.
By: /s/Douglas J. Grant
------------------------------------------------
Douglas J. Grant
Treasurer and Chief Financial
Officer
Date: February 9, 1995
<PAGE>
EXHIBIT INDEX
Exhibit Description Page
1 Restated Certificate of Incorporation
of Teledyne, Inc., as amended
(previously filed as Exhibit 3 to the
Corporation's Annual Report on Form
10-K for the year ended December 31,
1991, and incorporated herein by this
reference).
2 Certificate of Designation,
Preferences and Rights of Teledyne,
Inc. Series E Cumulative Preferred
Stock.
<PAGE>
EXHIBIT 2
Certificate of Designation, Preferences and
Rights of Series E Cumulative Preferred Stock
of
Teledyne, Inc.
(Pursuant to Section 151
of the Delaware General Corporation Law)
I, Douglas J. Grant, Treasurer and Chief Financial
Officer of Teledyne, Inc. (the "Corporation"), a corporation
organized and existing under the General Corporation Law of
the State of Delaware, in accordance with the provisions of
Section 103 thereof, DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board
of Directors of the Corporation by the Restated Certificate of
Incorporation of the Corporation, the said Board of Directors
on February 9, 1995, adopted the following resolutions
creating a series of 2,500,000 shares of Preferred Stock
designated as Teledyne, Inc. Series E Cumulative Preferred
Stock.
RESOLVED, that pursuant to the authority granted to and
vested in the Board of Directors of the Corporation in
accordance with the provisions of the Restated Certificate of
Incorporation of the Corporation, the Board of Directors
hereby creates a series of Series E Cumulative Preferred
Stock, with a par value of $1.00 per share, of the Corporation
and hereby states the designation and number of shares, and
fixes the relative rights, preferences and limitations thereof
as follows (the following provisions being intended to operate
in substitution for all of the provisions that would otherwise
be applicable to any series of Preferred Stock under
Sections A.1 through A.6 of Article FOURTH of the
Corporation's Restated Certificate of Incorporation but being
intended to operate in addition to any other provisions of
said Restated Certificate of Incorporation applicable to any
series of Preferred Stock):
Series E Preferred Stock
Section 1. Designation, Par Value, Amount and Stated
Value. The shares of such series shall be designated as
"Teledyne, Inc. Series E Cumulative Preferred Stock" (the
"Series E Cumulative Preferred Stock"), the shares of such
series shall be with par value of $1.00 per share, and the
number of shares constituting such series shall be 2,500,000.
The stated value of each share of Series E Cumulative
Preferred Stock shall be $15.00, which value does not
represent a determination by the Board of Directors for the
purposes of the capital accounts of the Corporation.
Section 2. Dividends and Distributions.
2.1 The dividend rate on shares of Series E Cumulative
Preferred Stock shall be $1.20 per share per annum. Dividends
on shares of Series E Cumulative Preferred Stock shall be
cumulative and shall be payable semi-annually, in cash, when,
as and if declared by the Board of Directors out of funds
legally available for the payment of dividends. Such
dividends shall, for all purposes of this Certificate of
Designation, Preferences and Rights of Series E Cumulative
Preferred Stock, be "due," whether or not declared out of
funds legally available for the payment of dividends, on each
Dividend Payment Date, commencing with the first Dividend
Payment Date that occurs following the date of issuance of any
particular shares of Series E Preferred Stock. Each such
dividend shall be due and payable to the holders of record of
shares of Series E Cumulative Preferred Stock, as they appear
on the stock records of the Corporation at the close of
business on the applicable record date, not more than sixty
(60) days preceding the applicable Dividend Payment Date, as
shall be fixed by the Board of Directors. Unpaid dividends
for any past Dividend Periods may be declared and paid at any
time, without reference to any Dividend Payment Date, to
holders of record on such date, not exceeding sixty (60) days
preceding the payment date thereof, as may be fixed by the
Board of Directors. The amount of dividends due for shares of
Series E Cumulative Preferred Stock for each Dividend Period
(including the Dividend Period during which such shares were
issued) shall be $0.60 per share, without proration on the
basis of the length of time any particular shares of Series E
Cumulative Preferred Stock have been outstanding or otherwise.
Holders of shares of Series E Cumulative Preferred Stock shall
be entitled to receive such dividends in preference to and in
priority over dividends upon the Common Shares and all Junior
Shares. No interest shall be due or payable in respect of any
due but unpaid dividends on the Series E Cumulative Preferred
Stock. Shares of Series E Cumulative Preferred Stock shall be
junior as to dividends to all Senior Shares, and if at any
time the Corporation has failed to pay accrued dividends on
any Senior Shares at the time such dividends are payable or
has failed to make a sinking fund or mandatory redemption
payment with respect to Senior Shares, the Corporation shall
not declare or pay any dividend on shares of Series E
Cumulative Preferred Stock.
If at any time the Corporation has failed to pay
dividends on any shares of Series E Cumulative Preferred Stock
on any Dividend Payment Date, or if the Corporation has
defaulted in providing funds for the payment of the redemption
price of any shares of Series E Cumulative Preferred Stock
called for redemption pursuant to Section 3 or has defaulted
in its obligations under Section 3.4, the Corporation shall
not:
2.1.1 authorize, create or issue any new shares
of Series E Cumulative Preferred Stock, other than to the
extent that the Corporation has, prior to such failure or
default, irrevocably declared a dividend obligating the
Corporation to do so;
2.1.2 declare or pay or set aside for payment
any dividend on the Common Shares, on any Junior Shares
or on any Parity Shares or purchase, redeem or otherwise
acquire, or make any payment on account of, or set apart
money for a sinking or other analogous fund for, the
purchase, redemption or other acquisition of, any Common
Shares, any Junior Shares or any Parity Shares, or make
any distribution in respect thereof, either directly or
indirectly and whether in cash or property or in
obligations or shares of the Corporation (other than in
Common Shares or Junior Shares);
2.1.3 purchase any shares of Series E Cumulative
Preferred Stock or any Parity Shares (except for
consideration payable in Common Shares or Junior Shares),
or redeem fewer than all of the shares of Series E
Cumulative Preferred Stock and Parity Shares then
outstanding, if any; or
2.1.4 permit any Subsidiary to purchase any
Common Shares, Junior Shares, Parity Shares or shares of
Series E Cumulative Preferred Stock;
unless, in the case of any such dividend, payment, setting
aside, distribution, purchase or redemption, (i) all dividends
due but unpaid on shares of Series E Cumulative Preferred
Stock have been, or contemporaneously with such action or
event are, declared and paid in full or declared and a sum
sufficient for the payment thereof has been, or
contemporaneously with such action or event is, irrevocably
set aside in trust for such payment, and (ii) all defaults in
the Company's obligations under Section 3 with respect to any
shares of the Series E Cumulative Preferred Stock called for
redemption have been cured.
2.2 Subject to Section 2.1, the Board of Directors may
declare and the Corporation may pay or set aside for payment
dividends and other distributions on any Junior Shares or
Parity Shares, and may redeem, purchase or otherwise retire
any Junior Shares or Parity Shares, and the holders of the
shares of Series E Cumulative Preferred Stock shall not be
entitled to share therein.
2.3 Any dividend payment made on shares of Series E
Cumulative Preferred Stock shall first be credited against the
earliest (by reference to their respective Dividend Payment
Dates) unpaid dividends due with respect to shares of Series E
Cumulative Preferred Stock.
Section 3. Optional and Mandatory Redemption.
3.1 The Series E Cumulative Preferred Stock may be
redeemed, in whole but not in part, at the option of the
Corporation, at any time, out of funds legally available for
such purpose, at a redemption price per share of $15.00.
3.2 The Series E Cumulative Preferred Stock shall be
redeemed in whole by the Corporation on the thirtieth (30th)
Business Day following a Change of Control, out of funds
legally available for such purpose, at a redemption price per
share of $16.50.
3.3 Immediately prior to any redemption of Series E
Cumulative Preferred Stock, the Corporation shall pay in cash,
or irrevocably set aside in trust for payment in cash, out of
funds legally available for such purpose, the aggregate of (i)
any dividends due and unpaid in respect of any Dividend Period
that has ended prior to the Redemption Date specified in the
notice required by Section 3.4 and (ii) the dividend that
would be due pursuant to Section 2.1 in respect of the
Dividend Period during which the Redemption Date occurs. If
such Redemption Date falls after a dividend payment record
date and prior to the corresponding Dividend Payment Date,
then each holder of record of shares of Series E Cumulative
Preferred Stock at the close of business on such dividend
payment record date shall be entitled to the dividend due on
such shares on the corresponding Dividend Payment Date
notwithstanding the redemption of such shares before such
Dividend Payment Date. Unless the Corporation shall default
in providing funds for the payment of the redemption price of
the shares of Series E Cumulative Preferred Stock or shall
default in its obligations under this Section 3.3, the
Corporation shall make no payment or allowance for unpaid
dividends on shares of Series E Cumulative Preferred Stock
called for redemption.
3.4 If the Corporation shall redeem shares of Series E
Cumulative Preferred Stock pursuant to either Section 3.1 or
Section 3.2, notice of such redemption shall be given to each
holder of record of shares of Series E Cumulative Preferred
Stock by first class mail, postage prepaid, mailed (i) not
less than thirty (30) days nor more than sixty (60) days prior
to the Redemption Date in any case not covered by the
following clause (ii), or (ii) not less than ten (10) days nor
more than sixty (60) days prior to the Redemption Date in the
case of mandatory redemption pursuant to Section 3.2, to each
such holder of record at such holder's address as the same
appears on the stock records of the Corporation. A summary of
such notice shall also be provided by publication in The Wall
Street Journal or The New York Times, or if neither such
newspaper is then being published, any other daily newspaper
of national circulation, such summary to state at least
(i) the Redemption Date, (ii) the redemption price, and
(iii) in the case of a mandatory redemption pursuant to
Section 3.2, the date on which the applicable Change of
Control occurred. Neither the failure to mail any notice
required by this Section 3.4, nor any defect therein or in the
mailing thereof, to any particular holder, shall affect the
sufficiency of the notice or the validity of the proceedings
for redemption with respect to the other holders. Any notice
which was mailed in the manner herein provided shall be
conclusively presumed to have been duly given on the date
mailed whether or not the holder receives the notice. Each
such mailed notice shall state, as appropriate: (i) the
Redemption Date, and the record date if different from the
Redemption Date, for purposes of such redemption; (ii) the
redemption price; (iii) the place or places at which
certificates for such shares are to be surrendered for payment
of the redemption price; (iv) that dividends on the Series E
Cumulative Preferred Stock shall not be due or paid for any
Dividend Period commencing after the last day of the Dividend
Period during which the Redemption Date specified in such
notice is to occur unless the Corporation shall default in
providing funds for the payment of the redemption price of the
shares called for redemption at the time and place specified
in such notice or shall default in its obligations under
Section 3.3; and (v) in the case of a mandatory redemption
pursuant to Section 3.2, the date on which the applicable
Change of Control occurred. Notice having been published or
mailed as aforesaid, from and after the Redemption Date set
forth in such notice (unless the Corporation shall default in
providing funds for the payment of the redemption price of the
shares called for redemption at the time and place specified
in such notice or shall default in its obligations under
Section 3.3), notwithstanding that the certificates evidencing
any shares of Series E Cumulative Preferred Stock so called
for redemption shall not have been surrendered, (i) said
shares shall no longer be deemed to be outstanding, and
(ii) all rights of the holders thereof as holders of shares of
Series E Cumulative Preferred Stock shall cease (except the
rights to receive the cash payable upon such redemption,
without interest from the date of such redemption, upon
surrender and endorsement of their certificates if so required
and to receive dividends in accordance with any other
provision hereof). The Corporation's obligation to provide
the cash payable hereunder upon redemption of shares of
Series E Cumulative Preferred Stock shall be deemed fulfilled
if, on or before the Redemption Date set forth in the
applicable notice of redemption, the Corporation shall deposit
with a bank or trust company (which may be an affiliate of the
Corporation) that has an office in the Borough of Manhattan,
City of New York, and that has, or is an affiliate of a bank
or trust company that has, a capital and surplus of at least
$50,000,000, the cash necessary for such redemption, in trust,
with irrevocable instructions that such cash be applied to the
redemption of the shares of Series E Cumulative Preferred
Stock so called for redemption. No interest shall accrue for
the benefit of the holders of shares of Series E Cumulative
Preferred Stock to be redeemed on any cash set aside by the
Corporation and any such interest shall be paid to the
Corporation. Subject to applicable escheat laws, any such
cash unclaimed at the end of one year from the Redemption Date
shall revert to the general funds of the Corporation, after
which reversion the holders of such shares so called for
redemption shall look only to the general funds of the
Corporation for the payment of such cash.
As promptly as practicable after the surrender in
accordance with said notice of the certificates for any such
shares so redeemed (properly endorsed or assigned for
transfer, if the Corporation shall so require and the notice
shall so state), such shares shall be exchanged for the cash
(without interest thereon) for which such shares have been
redeemed.
3.5 All shares of Series E Cumulative Preferred Stock
which are at any time redeemed by the Corporation pursuant to
Section 3 or repurchased or otherwise acquired by the
Corporation shall be retired by the Board of Directors and
shall have the status of authorized but unissued Preference
Shares, without designation as to series or class, upon the
filing by the Corporation with the Secretary of State of the
State of Delaware of an appropriate certificate evidencing
retirement.
Section 4. Liquidation.
4.1 The liquidation price of shares of Series E
Cumulative Preferred Stock, in the event of any voluntary or
involuntary liquidation, dissolution or winding-up of the
Corporation, shall be $15.00 per share, plus an amount equal
to the aggregate of (i) all dividends due and unpaid thereon
in respect of any Dividend Periods that have ended prior to
the date of final distribution to holders of Series E
Cumulative Preferred Stock (whether or not declared), and
(ii) the dividend that would be due pursuant to Section 2.1 in
respect of the Dividend Period during which the final
distribution to such holders occurs.
4.2 In the event of any voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation, the
holders of shares of Series E Cumulative Preferred Stock (i)
shall not be entitled to receive the liquidation price of such
shares held by them until the liquidation price of all Senior
Shares, if any, shall have been paid in full and (ii) shall be
entitled to receive the liquidation price of such shares held
by them in preference to and in priority over any
distributions upon the Common Shares and all Junior Shares, if
any. Upon payment in full of the liquidation price to which
the holders of shares of Series E Cumulative Preferred Stock
are entitled, the holders of shares of Series E Cumulative
Preferred Stock shall not be entitled to any further
participation in any distribution of assets by the
Corporation. If the assets of the Corporation are not
sufficient to pay in full the liquidation price payable to the
holders of shares of Series E Cumulative Preferred Stock and
the liquidation price payable to the holders of all Parity
Shares, if any, the holders of all such shares shall share
ratably in such distribution of assets in accordance with the
amounts which would be payable on such distribution if the
amounts to which the holders of shares of Series E Cumulative
Preferred Stock and the holders of Parity Shares, if any, are
entitled were paid in full.
4.3 Neither a consolidation or merger of the Corporation
with or into any other Person or Persons, nor a merger of any
other Person or Persons with or into the Corporation, nor the
voluntary sale, conveyance, lease, exchange or transfer (for
cash, shares of stock, securities or other consideration) of
all or any part of the Corporation's assets shall be
considered a voluntary or involuntary liquidation, dissolution
or winding-up of the Corporation within the meaning of this
Section 4.
Section 5. Voting Rights. Except as otherwise required
by law, holders of shares of Series E Cumulative Preferred
Stock shall have no voting rights except for the separate
class vote set forth in Section 5.1 and Section 5.2.
5.1 Dividend Defaults.
5.1.1 If and whenever dividends on the shares of
Series E Cumulative Preferred Stock, whether or not
declared, shall not have been paid in an aggregate amount
equal to or greater than three semi-annual dividends
(whether or not consecutive) on the shares of Series E
Cumulative Preferred Stock outstanding at the time such
dividends became due, then, and in any such event, the
number of Directors then constituting the whole Board of
Directors of the Corporation shall automatically be
increased by two Directors, and the holders of shares of
Series E Cumulative Preferred Stock, voting together as a
single class, but without having the right to cumulate
their votes, shall be entitled to fill such newly created
directorships. Such right to vote as a single class to
elect two Directors shall, when vested, continue until
all dividends due but unpaid on the shares of Series E
Cumulative Preferred Stock shall have been paid in full
or declared and irrevocably set aside in trust for
payment in full and, when so paid or declared and
irrevocably set aside in trust for payment in full, such
right to elect two Directors separately as a class shall
cease, subject, always, to the same provisions for the
vesting of such right to elect two Directors separately
as a class in the case of future dividend defaults. At
any time when such right to elect two Directors
separately as a class shall have so vested and if such
right shall not already have been initially exercised,
the Corporation may, and upon the written request of the
holders of record of not less than twenty percent (20%)
of the total number of shares of Series E Cumulative
Preferred Stock then outstanding (addressed to the
Secretary of the Corporation) shall, call a special
meeting of the holders of such shares to fill such newly
created directorships for the election of Directors. In
the case of such a written request, such special meeting
shall be held within ninety (90) days after the delivery
of such request and, in either case, at the place and
upon the notice provided by law and in the Bylaws of the
Corporation; provided, however, that the Corporation
shall not be required to call such a special meeting if
such request is received less than one hundred twenty
(120) days before the date fixed for the next ensuing
annual meeting of stockholders of the Corporation, at
which meeting such newly created directorship shall be
filled by the holders of such shares of Series E
Cumulative Preferred Stock.
If such meeting shall not be called by the proper
officers of the Corporation within thirty (30) days after
the personal service of such written request upon the
Secretary of the Corporation, or within thirty (30) days
after mailing the same within the United States, by
registered mail, addressed to the Secretary of the
Corporation at its principal office (such mailing to be
evidenced by the registry receipt issued by the postal
authorities), then the holders of record of twenty (20%)
of the shares of Series E Cumulative Preferred Stock then
outstanding may designate in writing a holder of shares
of Series E Cumulative Preferred Stock to call such
meeting at the expense of the Corporation, and such
meeting may be called by such Person so designated upon
the notice required for annual meetings of stockholders
and shall be held at the same place as is elsewhere
provided in this Section 5.1.1. Any holder of shares of
Series E Cumulative Preferred Stock that would be
entitled to vote at such meeting shall have access to the
stock books of the Corporation for the Series E
Cumulative Preferred Stock for the purpose of causing a
meeting of stockholders to be called pursuant to the
provisions of this paragraph.
5.1.2 So long as any shares of Series E
Cumulative Preferred Stock are outstanding, the By-Laws
of the Corporation shall at all times contain provisions
adequate to permit the holders of the shares of Series E
Cumulative Preferred Stock to elect two Directors of the
Corporation under the circumstances provided in Section
5.1.1.
5.1.3 At any meeting held for the purpose of
electing directors at which the holders of shares of
Series E Cumulative Preferred Stock 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 Series E Cumulative
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, (i) the absence of a quorum of the
holders of shares of Series E Cumulative Preferred Stock
shall not prevent the election of directors other than
those to be elected by the holders of stock of Series E
Cumulative Preferred Stock 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
Series E Cumulative Preferred Stock and (ii) in the
absence of a quorum of the holders of shares of Series E
Cumulative 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 Series E Cumulative 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.
5.1.4 Directors elected pursuant to Section
5.1.1 shall serve until the earlier of (x) the next
annual meeting of the stockholders of the Corporation and
the election (by the holders of shares of Series E
Cumulative Preferred Stock) and qualification of their
respective successors or (y) the termination of the
voting rights set forth in Section 5.1.1 in accordance
with such section, and upon such termination the number
of directors constituting the Board of Directors shall,
without further action, be reduced by two and the terms
of office of any Director then holding office as a result
of election by the holders of shares of Series E
Cumulative Preferred Stock pursuant to Section 5.1.1
shall thereupon terminate to reflect such reduction. If,
prior to the end of the term of any Director or both
Directors elected as aforesaid, a vacancy in the office
of such Director or both Directors shall occur by reason
of death, resignation or removal, (i) in the case of a
single vacancy, the remaining Director who shall have
been elected by the holders of Series E Cumulative
Preferred Stock may appoint a successor to hold office
for the unexpired term of the Director whose place shall
be vacant and (ii) in the case of one or two vacancies,
holders of shares of Series E Cumulative Preferred Stock
then outstanding shall be entitled, at a special meeting
of the holders called as provided in Section 5.1.2, to
elect successors to hold office for the unexpired terms
of the directors whose places shall be vacant.
5.2 Other Voting Rights. So long as any shares of
Series E Cumulative Preferred Stock are outstanding (except
when notice of redemption has been given pursuant to Section
3.4 hereof and funds have been irrevocably deposited in trust
for such redemption in accordance with such section), without
the affirmative vote of the holders of at least two-thirds of
the outstanding shares of Series E Cumulative Preferred Stock
(three-fourths in the case of the matters set forth in Section
5.2.3), voting as a single class, the Corporation shall not:
5.2.1 amend the Corporation's Certificate of
Incorporation or this Certificate of Designation,
Preferences and Rights of Series E Cumulative Preferred
Stock to alter or change the powers, preferences or
special rights (including voting powers and rights) of
shares of Series E Cumulative Preferred Stock so as to
affect such powers, preferences or special rights
(including voting powers and rights) adversely, it being
understood that, without limiting such other actions as
would not be deemed to so alter or change the powers,
preferences or special rights (including voting powers
and rights) of shares of Series E Cumulative Preferred
Stock, neither (i) the creation, authorization or
issuance of any Senior Shares, Parity Shares, Junior
Shares or Common Shares, nor (ii) subject to Section
2.1.1, any increase in the authorized number of shares of
Series E Cumulative Preferred Stock set forth in the
Certificate of Designation, Preferences and Rights of
Series E Cumulative Preferred Stock (whether or not such
authorized number has previously decreased), by the
filing of an appropriate certificate by the Corporation
with the Secretary of State of the State of Delaware,
shall require the consent of the holders of Series E
Cumulative Preferred Stock or be deemed to alter or
change the powers, preferences or special rights
(including voting powers and rights) of shares of Series
E Cumulative Preferred Stock so as to affect them
adversely; or
5.2.2 consummate any merger, consolidation or
reorganization, the terms of which provide for the
Series E Cumulative Preferred Stock to cease to be issued
and outstanding in accordance with the terms set forth in
this Certificate of Designation, Preferences and Rights
of Series E Cumulative Preferred Stock unless such terms
provide for all holders of shares of Series E Cumulative
Preferred Stock to receive, as a result of such
consummation, at least the same amount in cash per share
of Series E Cumulative Preferred Stock that they would
receive in accordance with Section 3.3 and Section 3.4 in
connection with a mandatory redemption of such shares
under Section 3.2 that was effected at the time of the
consummation of such merger, consolidation or
reorganization; or
5.2.3 authorize, create or issue any Preference
Shares which are not Senior Shares, Parity Shares or
Junior Shares.
Section 6. Record Holders. The Corporation and each
transfer agent and registrar of the Corporation may deem and
treat the record holder of any shares of Series E Cumulative
Preferred Stock as the true and lawful owner thereof for all
purposes, and neither the Corporation nor any transfer agent
shall be affected by any notice to the contrary.
Section 7. Certain Definitions. As used in this
Certificate, the following terms shall have the following
respective meanings:
"Board of Directors" shall mean the board of directors of
the Corporation or any committee authorized by such board of
directors to perform any of its responsibilities with respect
to the Series E Cumulative Preferred Stock.
"Business Day" shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which
banking institutions in the City of New York are authorized or
obligated by law or executive order to close.
"Change of Control" shall mean the occurrence of any of
the following events:
(a) a Person (alone or together with such Person's
Affiliates and Associates, as such terms are defined in
Rule 12b-2 promulgated under the Securities Exchange Act
of 1934, as amended (the "1934 Act")), or a "group" (as
such term is defined in Rule 13d-5 promulgated under the
1934 Act) of Persons, becomes, after January 25, 1995,
the "beneficial owner" (as such term is defined in
Rule 13d-3 promulgated under the 1934 Act) of fifty
percent (50%) or more of the combined voting power of the
Corporation's then outstanding voting securities;
provided, however, that in determining whether a Change
of Control has occurred, voting securities of the
Corporation which are acquired in a "Non-Control
Acquisition" (as hereinafter defined) shall not
constitute an acquisition which would cause a Change of
Control. A "Non-Control Acquisition" shall mean an
acquisition either (i) from the Corporation or (ii) by
(1) an employee benefit plan (or a trust forming a part
thereof) maintained by the Corporation or any Subsidiary,
(2) the Corporation or (3) any Subsidiary; or
(b) the consummation of (i) a merger, consolidation
or reorganization to which the Corporation is a party,
whether or not the Corporation is the Person surviving or
resulting therefrom, or (ii) a sale, assignment, lease,
conveyance or other disposition of all or substantially
all of the assets of the Corporation, in one transaction
or a series of related transactions, to any Person other
than a Subsidiary, where any such transaction or series
of related transactions as is referred to in clause (i)
or clause (ii) above in this paragraph (b) (a
"Transaction") does not otherwise result in a "Change of
Control" pursuant to paragraph (a) of this definition of
"Change of Control;" provided, however, that no such
Transaction shall constitute a "Change of Control" under
this paragraph (b) if the Persons who were the
stockholders of the Corporation immediately before the
consummation of such Transaction are the "beneficial
owners" (as such term is defined in Rule 13d-3
promulgated under the 1934 Act), immediately following
the consummation of such Transaction, of fifty percent
(50%) or more of the combined voting power of the then
outstanding voting securities of the Person surviving or
resulting from any merger, consolidation or
reorganization referred to in clause (i) above in this
paragraph (b) or the Person to whom the assets of the
corporation are sold, assigned, leased, conveyed or
disposed of in any transaction or series of related
transactions referred in clause (ii) above in this
paragraph (b) in substantially the same proportion as
such stockholders' ownership of the combined voting power
of the Corporation's then outstanding voting securities
immediately before the consummation of such Transaction.
"Common Shares" shall mean any stock of any class of the
Corporation which has no preference as to dividends or as to
the distribution of assets on any voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation and
which is not subject to redemption by the Corporation.
"Corporation" shall have the meaning provided in the
first paragraph of this Certificate of Designation,
Preferences and Rights of Series E Cumulative Preferred Stock.
"Dividend Payment Date" shall mean the first calendar day
of March and September in each year; provided, however, that
if any Dividend Payment Date falls on any day other than a
Business Day, the dividend payment due on such Dividend
Payment Date shall be paid on the Business Day immediately
following such Dividend Payment Date.
"Dividend Period" shall mean each semi-annual period for
the purposes of the payment of dividends on shares of Series E
Cumulative Preferred Stock hereunder (or, in the case of the
first dividend period applicable with respect to any
particular shares of Series E Cumulative Preferred Stock
issued during such first period, a period shorter than a full
semi-annual period) commencing on the first Dividend Payment
Date that occurs following the issuance of any particular
shares of Series E Cumulative Preferred Stock and ending on
and including the day preceding the first day of the next
succeeding Dividend Period.
"Issue Date" shall mean the first date on which shares of
Series E Cumulative Preferred Stock are issued.
"Junior Shares" shall mean any Preference Shares of any
series or class of the Corporation's capital stock which are
by their terms expressly made junior to shares of Series E
Cumulative Preferred Stock both as to dividends and as to the
distribution of assets on any voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation.
"Parity Shares" shall mean any Preference Shares (other
than the Series E Cumulative Preferred Stock) which are by
their terms expressly placed on a parity with the shares of
Series E Cumulative Preferred Stock both as to dividends and
as to the distribution of assets on any voluntary or
involuntary liquidation, dissolution or winding-up of the
Corporation.
"Person" shall mean (except as otherwise set forth in the
definition of "Change of Control") any individual, firm,
partnership, limited liability company, corporation or other
entity, and shall include any successor (by merger or
otherwise) of such entity.
"Preference Shares" shall mean any series or class of
shares of the Corporation ranking prior to at least one other
series or class of shares of the Corporation as to the payment
of dividends or the distribution of assets on any voluntary or
involuntary liquidation, dissolution or winding-up of the
Corporation.
"Redemption Date" shall mean, with respect to any
redemption of Series E Cumulative Preferred Stock under
Section 3.1 or Section 3.2, the date set forth in the notice
required by Section 3.4 as the redemption date for purposes of
such redemption.
"Senior Shares" shall mean any Preference Shares of any
series or class of the Corporation which are by their terms
expressly made senior to shares of Series E Cumulative
Preferred Stock both as to dividends and as to the
distribution of assets on any voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation.
"Subsidiary" shall mean any corporation or other Person,
a majority of the voting power, equity securities or equity
interest of which is owned directly or indirectly by the
Corporation.
(signature page follows)
IN WITNESS WHEREOF, I have executed and subscribed to
this Certificate and do affirm the foregoing as true under
penalty of perjury this 9th day of February, 1995.
/s/Douglas J. Grant
-----------------------------------
Douglas J. Grant
Treasurer and Chief Financial
Officer
