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RESTATED CERTIFICATE OF INCORPORATION
OF
THE B.F.GOODRICH COMPANY
UNDER SECTION 807 OF THE
BUSINESS CORPORATION LAW
We, the undersigned, Jon V. Heider and Nicholas J. Calise, being
respectively Senior Vice President and Secretary of THE B.F.GOODRICH COMPANY, do
hereby certify as follows:
1. The name of the corporation is THE B.F.GOODRICH COMPANY, hereinafter
referred to as the "Company".
2. The Certificate of Incorporation was filed by the Department of
State on the 2nd day of May, 1912.
3. The Certificate of Incorporation is hereby amended to modify
paragraph A of Article ELEVENTH relating to repurchases from an Interested
Shareholder (as defined) in three respects. First, it requires that any proposed
repurchase of shares from an Interested Shareholder requiring the approval of
shareholders also requires the approval of a majority of the non-officer
directors. Second, it requires the cost of any such shareholder solicitation to
be at the expense of the Interested Shareholder. Finally, the amendment further
limits the price at which a purchase of shares could be made from an Interested
Shareholder without shareholder approval to the higher of (i) the closing price
on the last trading day immediately preceding the earlier of public disclosure
of the repurchase or the signing of a definitive repurchase agreement and (ii)
the average closing price during the 20 trading days immediately preceding the
date of such disclosure or agreement.
4. The text of the Certificate of Incorporation, as amended heretofore,
and as further amended, hereby is restated to read as herein set forth in full:
CERTIFICATE OF INCORPORATION OF
THE B.F.GOODRICH COMPANY
We, the undersigned, all being persons of full age and at least
two-thirds being citizens of the United States and at least one of us a resident
of the State of New York, desiring to form a stock corporation (other than a
moneyed corporation, or a corporation provided for by the banking, the
insurance, the
<PAGE>
railroad and the transportation corporation laws, or an educational institution
or corporation which may be incorporated as provided in the education law)
pursuant to the provisions of the Business Corporation Law of the State of New
York, do hereby make, sign, acknowledge and file this certificate for that
purpose as follows:
FIRST - The name of the corporation shall be THE B.F.GOODRICH COMPANY,
hereinafter referred to as the "Company."
SECOND - The location of its principal office in the State of New York
shall be at the City of New York, in the Borough of Manhattan, in the County of
New York, and State of New York.
THIRD - The purpose for which the Company is formed is to engage in any
lawful act or activity for which corporations may be organized under the
Business Corporation Law of the State of New York, provided that the Company is
not formed to engage in any act or activity requiring the consent or approval of
any state official, department, board, agency or other body without such consent
or approval first being obtained.
FOURTH - The aggregate number of shares which the Company shall have
authority to issue is 110,000,000, divided into 10,000,000 shares of Series
Preferred Stock of the par value of $1 per share (hereafter called "Series
Preferred Stock"), and 100,000,000 shares of Common Stock of the par value of $5
per share (hereafter called "Common Stock").
A statement of the designations, preferences, privileges and voting
powers of the shares of each class and the restrictions and qualifications
thereof shall be as follows:
(a) Series Preferred Stock
(1) Board Authority: The Series Preferred Stock may be issued
from time to time by the Board of Directors as herein provided in one
or more series. The designations, relative rights, preferences and
limitations of the Series Preferred Stock, and particularly of the
shares of each series thereof, may be similar to or may differ from
those of any other series. The Board of Directors of the Company is
hereby expressly granted authority, subject to the provisions of this
Article FOURTH, to issue from time to time Series Preferred stock in
one or more series and to fix from time to time before issuance
thereof, by filing a certificate pursuant to the Business Corporation
Law, the number of shares in each such series of such class and all
designations, relative rights, (including the right to convert into
shares of any class or into shares of any series of any class),
preferences and limitations of the shares in each such series,
including, but without limiting the generality of the foregoing, the
following:
2
<PAGE>
(i) The number of shares to constitute such series (which
number may at any time, or from time to time, be increased or
decreased by the Board of Directors, notwithstanding that
shares of the series may be outstanding at the time of such
increase or decrease, unless the Board of Directors shall have
otherwise provided in creating such series) and the
distinctive designation thereof;
(ii) The dividend rate on the shares of such series, whether
or not dividends on the shares of such series shall be
cumulative, and the date or dates, if any, from which
dividends thereon shall be cumulative;
(iii) Whether or not the shares of such series shall be
redeemable, and, if redeemable, the date or dates upon or
after which they shall be redeemable, the amount per share
(which shall be, in the case of each share, not less than its
preference upon involuntary liquidation, plus an amount equal
to all dividends thereon accrued and unpaid, whether or not
earned or declared) payable thereon in the case of the
redemption thereof, which amount may vary at different
redemption dates or otherwise as permitted by law;
(iv) The right, if any, of holders of such series to convert
the same into, or exchange the same for Common Stock or other
stock as permitted by law, and the terms and conditions of
such conversion or exchange, as well as provisions for
adjustment of the conversion rate in such events as the Board
of Directors shall determine;
(v) The amount per share payable on the shares of such series
upon the voluntary and involuntary liquidation, dissolution or
winding up of the Company.
(vi) Whether the holders of shares of such series shall have
voting power, full or limited, in addition to the voting
powers provided by law, and in case additional voting powers
are accorded to fix the extent thereof; and
(vii) Generally to fix the other rights and privileges and any
qualifications, limitations or restrictions of such rights and
privileges of such series, provided, however, that no such
rights, privileges, qualifications, limitations or
restrictions shall be in conflict with the Restated
Certificate of Incorporation of the Company or with the
resolution or resolutions adopted by the Board of Directors,
as
3
<PAGE>
hereinabove provided, providing for the issue of any series
for which there are shares then outstanding.
All shares of Series Preferred Stock of the same series shall be
identical in all respects, except that shares of any one series issued
at different times may differ as to dates, if any, from which
dividends thereon may accumulate. All shares of Series Preferred Stock
of all series shall be of equal rank and shall be identical in all
respects except that to the extent not otherwise limited in this
Article FOURTH any series may differ from any other series with
respect to any one or more of the designations, relative rights,
preferences and limitations (including, without limitations, the
designations, relative rights, preferences and limitations described
or referred to in subparagraphs (i) to (vii) inclusive above) which
may be fixed by the Board of Directors pursuant to this paragraph 1.
2. Dividends: Dividends on the outstanding Series Preferred
Stock of each series shall be declared and paid or set apart for
payment before any dividends shall be declared and paid or set apart
for payment on the Common Stock with respect to the same quarterly
dividend period. Dividends on any shares of Series Preferred Stock
shall be cumulative only if and to the extent set forth in a
certificate filed pursuant to law. After dividends on all shares of
Series Preferred Stock (including cumulative dividends if and to the
extent any such shares shall be entitled thereto) shall have been
declared and paid or set apart for payment with respect to any
quarterly dividend period, then and not otherwise so long as any shares
of the Series Preferred Stock shall remain outstanding, dividends may
be declared and paid or set apart for payment with respect to the same
quarterly dividend period on the Common Stock out of the assets or
funds of the Company legally available therefor.
All shares of Series Preferred Stock of all series shall be of equal
rank, preference and priority as to dividends irrespective of whether
or not the rates of dividends to which the same shall be entitled shall
be the same and when the stated dividends are not paid in full, the
shares of all series of the Series Preferred Stock shall share ratable
in the payment thereof in accordance with the sums which would be
payable on such shares if all dividends were paid in full provided,
however, that any two or more series of the Series Preferred Stock may
differ from each other as to the existence and extent of the right to
cumulative dividends, as aforesaid.
3. Voting Rights: Except as otherwise specifically provided
herein or in the certificate filed pursuant to law with respect to any
series of the Series Preferred Stock, or as otherwise provided by law,
the Series Preferred Stock shall not have any right to vote for the
election of directors or for any other purpose and the Common Stock
shall have the exclusive right to vote for the election of directors
and for all other purposes;
4
<PAGE>
provided, however, that at any time when six (6) quarterly dividends
on any one or more series of Series Preferred Stock entitled to
receive cumulative dividends shall be in default, the holders of all
such cumulative series at the time or times outstanding as to which
such default shall exist shall be entitled, at the next annual meeting
of stockholders for the election of directors, voting as a class,
whether or not the holders thereof shall be entitled otherwise to vote
by certificate filed pursuant to law, to the exclusion of the holders
of Common Stock and the holders of any series of non-cumulative Series
Preferred Stock, to vote for and elect two members of the Board of
Directors of the Company, and provided, further that at any time when
six (6) quarterly dividends on any one or more series of
non-cumulative Series Preferred Stock shall be in default, the holders
of all such non-cumulative series at the time or times outstanding as
to which such default shall exist shall be entitled, at the next
annual meeting of stockholders for the election of directors, voting
as a class, whether or not the holders thereof shall be entitled
otherwise to vote by certificate filed pursuant to law, to the
exclusion of the holders of Common Stock and the holders of any series
of cumulative Series Preferred Stock, to vote for and elect two
members of the Board of Directors of the Company. All rights of all
series of Series Preferred Stock to participate in the election of
directors pursuant to this paragraph 3 shall continue in effect, in
the case of all series of Series Preferred Stock entitled to receive
cumulative dividends, until cumulative dividends have been paid in
full or set apart for payment on each cumulative series which shall
have been entitled to vote at the previous annual meeting of
stockholders, or in the case of all series of non-cumulative Series
Preferred Stock, until non-cumulative dividends have been paid in full
or set apart for payment for four consecutive quarterly dividend
periods on each non-cumulative series which shall have been entitled
to vote at the previous annual meeting of stockholders. Directors
elected by the holders of any one or more series of stock voting
separately as a class, may be removed only by a majority vote of such
series, voting separately as a class, so long as the voting power of
such series shall continue. Subject to the voting rights, if any, of
any other series of Series Preferred Stock, the holders of the Common
Stock, voting as a class, to the exclusion of the holders of such
series so entitled to vote for and elect members of the Board pursuant
to this paragraph 3, shall be entitled to vote for and elect the
balance of the Board of Directors.
Each stockholder entitled to vote at any particular time in accordance
with the foregoing provisions shall not have more than one vote for
each share of stock held of record by him at the time entitled to
voting rights.
4. Liquidation: In the event of any liquidation, dissolution or
winding up of the Company, whether voluntary or involuntary, each
series of Series Preferred Stock shall have preference and priority
over the Common Stock for payment of the amount to which such series
of Series
5
<PAGE>
Preferred Stock shall be entitled in accordance with the provisions
thereof and each holder of Series Preferred Stock shall be entitled to
be paid in full his share of such amount, or have a sum sufficient for
the payment in full set aside, before any payments shall be made to
the holders of the Common Stock. If, upon liquidation, dissolution or
winding up of the Company, the assets of the Company or proceeds
thereof, distributable among the holders of the shares of all series
of the Series Preferred Stock shall be insufficient to pay in full the
preferential amount aforesaid, then such assets, or the proceeds
thereof, shall be distributed among such holders ratably in accordance
with the respective amounts which would be payable if all amounts
payable thereon were paid in full. After the payment to the holders of
Series Preferred Stock of all such amounts to which they are entitled,
as above provided, the remaining assets and funds of the Company shall
be divided and paid to the holders of the Common Stock.
5. Redemption: In the event that the Series Preferred Stock of
any one or more series shall be made redeemable as provided in clause
(iii) of paragraph 1 of section (a) of Article FOURTH herein, the
Company, at the option of the Board of Directors, may redeem, at the
time or times specified in the certificate filed pursuant to law with
respect to any such series, all or any part of any such series of
Series Preferred Stock outstanding upon notice duly given as
hereinafter specified, by paying for each share the then applicable
redemption price fixed by the Board of Directors as provided herein,
plus an amount equal to accrued and unpaid dividends to the date fixed
for redemption, provided, however, that a notice specifying the shares
to be redeemed, and the time and place of redemption (and, if less
than the total outstanding shares are to be redeemed, specifying the
certificate numbers and number of shares to be redeemed) shall be
published once in a daily newspaper printed in the English language
and published and of general circulation in the Borough of Manhattan,
the City of New York, and shall be mailed, addressed to the holders of
record of the Series Preferred Stock to be redeemed at their
respective addresses as the same shall appear upon the books of the
Company, not less than thirty (30) days nor more than ninety (90) days
previous to the date fixed for redemption. If less than the whole
amount of any outstanding series of Series Preferred Stock is to be
redeemed, the shares of such series to be redeemed shall be selected
by lot or pro rata in any manner determined by resolution of the Board
of Directors to be fair and proper. From and after the date fixed in
any such notice as the date of redemption (unless default shall be
made by the Company in providing moneys at the time and place of
redemption for the payment of the redemption price) all dividends upon
the Series Preferred Stock so called for redemption shall cease to
accrue, and all rights of the holders of said Series Preferred Stock
as stockholders in the Company, except the right to receive the
redemption price upon surrender of the certificate
6
<PAGE>
representing the Series Preferred Stock so called for redemption, duly
endorsed for transfer, if required, shall cease and determine. With
respect to any shares of Series Preferred Stock so called for
redemption, if, before the redemption date, the Company shall deposit
with a bank or trust company in the Borough of Manhattan, City of New
York, having a capital and surplus of at least $25,000,000, funds
necessary for such redemption, in trust, to be applied to the
redemption of the shares of Series Preferred Stock so called for
redemption, then from and after the date of such deposit, all rights
of the holders of such shares of Series Preferred Stock, so called for
redemption, shall cease and determine, except the right to receive, on
and after the date of such deposit, the redemption price upon
surrender of the certificates representing such shares of Series
Preferred Stock, so called for redemption, duly endorsed for transfer,
if required, and except as might otherwise be provided in the
certificate filed pursuant to law with respect to any such shares of
Series Preferred Stock, so called for redemption. Any interest accrued
on such funds shall be paid to the Company from time to time. Any
funds so deposited and unclaimed at the end of six (6) years from such
redemption date shall be released or repaid to the Company, after
which the holders of such shares of Series Preferred Stock so called
for redemption shall look only to the Company for payment of the
redemption price. Notwithstanding the foregoing, no redemption of any
shares of any series of Series Preferred Stock shall be made by the
Company (1) which as of the date of mailing of the notice of such
redemption would, if such date were the date fixed for redemption,
reduce the net assets of the Company remaining after such redemption
below the aggregate amount payable upon voluntary or involuntary
liquidation, dissolution or winding up to the holders of shares having
rights senior or equal to the Series Preferred Stock in the assets of
the Company upon liquidation, dissolution or winding up; or (2) unless
all cumulative dividends for the current and all prior dividend
periods have been declared and paid or declared and set apart for
payment on all shares of the Company having a right to cumulative
dividends.
6. $7.85 Cumulative Preferred Stock, Series A.
(i) The distinctive serial designation of the first series
of Series Preferred Stock, which shall be a closed series,
shall be "$7.85 Cumulative Preferred Stock, Series A ($1 par
value)" (hereinafter called "Series A Stock").
(ii) The number of shares of Series A Stock shall be
250,000.
(iii) The annual rate of dividends payable on shares of
Series A Stock shall be $7.85 per year and no more, payable
quarterly on the last days of March, June, September and
December, respectively, in each year with respect to the
quarterly dividend
7
<PAGE>
period (or portion thereof) ending on such dividend payment
date; provided, however, that in the case of any shares of
Series A Stock issued prior to October 1, 1972, the first
dividend payment, of dividends accrued since the date of
issue, shall be made on December 31, 1972.
(iv) Dividends on the shares of Series A Stock shall be
cumulative from the date or dates of issue thereof. The
holders of Series A Stock, in preference to the holders of any
junior stock, shall be entitled to receive, as and when
declared by the Board of Directors out of any funds legally
available therefor, cash dividends at the rate fixed in
subdivision (iii) hereof. The term "junior stock" as used
herein means Common Stock or any other stock of the Company
which by its terms is junior to Series Preferred Stock in
respect of dividends or payments in liquidation.
In no event, so long as any Shares of Series A Stock shall be
outstanding, shall any dividend, whether in cash or property,
be paid or declared, nor shall any other distribution be
ordered or made, on any junior stock, nor shall any shares of
any capital stock of the Company be purchased, redeemed or
otherwise acquired for value by the Company or by any
subsidiary of the Company, unless (A) all dividends on Series
A Stock for all past quarterly dividend periods and in the
case of a dividend or distribution, for the then current
quarterly period, shall have been paid or declared and a sum
sufficient for the payment thereof set apart and (B) the
Company shall have set aside all funds required for the
Sinking Fund for Series A Stock provided for in clause (vii)
of this paragraph 6 through the date of such payment,
declaration, distribution, purchase, redemption or other
acquisition. The provisions of this paragraph shall not,
however, apply to a dividend payable in any junior stock, to
the acquisition of shares of any junior stock in exchange for
shares of any other junior stock or to the acquisition of
shares of capital stock other than junior stock pursuant to a
tender offer made on a pro rata basis for all shares of
capital stock of the Company other than junior stock.
(v) In the event of any voluntary liquidation, dissolution or
winding up of the affairs of the Company, then before any
distribution or payment shall be made to the holders of any
junior stock, the holders of Series A Stock shall be entitled
to be paid in full the redemption price in effect at the time
of the distribution or payment date as provided in clause (vi)
of this paragraph 6, together with accrued dividends to such
distribution or payment date whether or not earned or
declared. In the event of any involuntary liquidation,
dissolution or winding up of the affairs of the
8
<PAGE>
Company, then, before any distribution or payment shall be
made to the holders of any junior stock, the holders of Series
A Stock shall be entitled to be paid in full an amount equal
to $100 per share, together with accrued dividends to such
distribution or payment date whether or not earned or
declared.
(vi) Series A Stock may be redeemed, as a whole or in part, at
the option of the Company by vote of its Board of Directors,
at any time or from time to time, at the redemption price in
effect at the redemption date as provided in this clause (vi),
together with accrued dividends to the redemption date;
provided however, that no such redemption may be made prior to
August 15, 1982 directly or indirectly from the proceeds of,
or as a part of, or in anticipation of, any refunding
operation involving the incurring of indebtedness, or issuance
of stock ranking prior to or on a parity with Series A Stock
in respect of dividends or upon liquidation, at an interest
cost on indebtedness or dividend yield on capital stock of
less than 7.85% both calculated in accordance with accepted
financial practice. The redemption prices per share for shares
of Series A Stock redeemed at any time during the twelve
months' periods indicated shall be as follows:
<TABLE>
<CAPTION>
12 MONTHS
BEGINNING 12 MONTHS BEGINNING
AUGUST 15 PRICE AUGUST 15 PRICE
<S> <C> <C> <C> <C>
1972 $107.85 1982 $103.92
1973 107.46 1983 103.53
1974 107.06 1984 103.14
1975 106.67 1985 102.75
1976 106.28 1986 102.36
1977 105.89 1987 101.96
1978 105.50 1988 101.57
1979 105.10 1989 101.18
1980 104.71 1990 100.78
1981 104.32 1991 100.39
and $100 per share thereafter.
</TABLE>
The provisions of paragraph 5 of this section (a) of Article
FOURTH applicable to redemption of all Series Preferred Stock
shall apply to Series A Stock, provided that, in addition, in
the case of any redemption of Series A Stock the Company shall
deposit, before the redemption date, with a bank or trust
company in the Borough of Manhattan, City of New York, having
a capital and surplus of at least $25,000,000, funds necessary
for such redemption, in trust, to
9
<PAGE>
be applied to such redemption, and the amounts shall be made
payable at the office of such bank or trust company.
(vii) There shall be a sinking fund (hereinafter called the
"Sinking Fund") for the benefit of the shares of Series A
Stock. For the purposes of the Sinking Fund, out of any net
assets of the Company legally available therefor, before any
dividends, in cash or property, shall be paid or declared, or
any distribution ordered or made on any junior stock, and
before any shares of any capital stock of the Company shall be
purchased, redeemed, or otherwise acquired for value by the
Company or any subsidiary, the Company shall set aside in cash
annually on July 16 in each year commencing with July 16,
1979, so long as there shall be outstanding any shares of
Series A Stock, an amount sufficient to redeem 12,500 shares
of Series A Stock (or such lesser number as remains
outstanding), at a price (the `Sinking Fund Redemption Price")
of $100 per share plus an amount equal to dividends accrued
thereon to the date fixed for redemption; provided, however,
that there shall be allowed to the Company as a credit
thereagainst any shares of Series A Stock which the Company
may have acquired or redeemed (otherwise than through the
operation of the Sinking Fund) which have not theretofore been
used for the purpose of any such credit and which shares shall
have been set aside by the Company for the purpose of the
Sinking Fund. The Sinking Fund shall be cumulative so that if
on any such July 16 the net assets of the Company legally
available therefor shall be insufficient to permit any such
amount to be set aside in full, or if for any other reason
such amount shall not have been set aside in full, the amount
of the deficiency shall be set aside, but without interest,
before any dividend, in cash or property, shall be paid or
declared, or any other distribution ordered or made, on any
junior stock and before any shares of any capital stock of the
Company shall be purchased, redeemed or otherwise acquired for
value by the Company or by any subsidiary of the Company,
subject to the exceptions provided in the last sentence of
clause (iv) of this paragraph 6. Moneys in the Sinking Fund
shall be applied within thirty days after having been set
aside to the redemption of shares of Series A Stock as above
provided. The Company may elect to redeem, on any Sinking Fund
redemption date, up to an additional 12,500 shares of Series A
Stock at the Sinking Fund Redemption Price. Such optional
redemption privilege shall not be cumulative from year to
year.
The provisions of paragraph 5 of this section (a) of Article
FOURTH shall apply to all Sinking Fund redemptions of Series A
Stock
10
<PAGE>
provided that, in addition, in the case of Sinking Fund
redemptions of Series A Stock the Company shall deposit,
before the redemption date, with a bank or trust company
meeting the requirements of clause (vi) of this paragraph 6,
funds necessary for such redemption, and the amounts shall be
made payable at the office of such bank or trust company.
(viii) The holders of Series A Stock shall be entitled to vote
only as hereinafter and in paragraph 3 of this section (a) of
Article FOURTH provided. Each stockholder of Series A Stock
entitled to vote at any particular time shall have one vote
for each share of Series A Stock held of record by him and
entitled to voting rights.
So long as any shares of Series A Stock are outstanding, in
addition to any other vote or consent of shareholders required
in this Certificate of Incorporation or by law, the approval
of the holders of at least sixty-six and two-thirds percent
(66-2/3%) of Series A Stock at the time outstanding, shall be
necessary for effecting or validating:
(a) any amendment, alteration or repeal of any of the
provisions of the Certificate of Incorporation, or of
the By-Laws, of the Company, which affects adversely
the voting powers of any other rights or preferences
of the holders of Series A Stock;
(b) authorization or creation of any class of stock
of the Company ranking prior to or on a parity with
Series Preferred Stock in respect of dividends or
payments in liquidation, or any increase in the
number of authorized shares of Series Preferred
Stock;
(c) issuance of any shares of any other series of
Series Preferred Stock unless, after giving pro forma
effect to the issuance of such shares and any
concurrent stock or debt retirement, net income of
the Company for any period of twelve consecutive
months within the preceding eighteen calendar months
exceeds two times the aggregate of all annual
dividend requirements of Series A Stock and all
shares (outstanding pro forma) ranking prior to or on
a parity with Series A Stock with respect to
dividends; or
(d) any merger, consolidation, sale of assets or
other transaction the effect of which, in any such
case, is to accomplish an event otherwise requiring
approval by holders of 66-2/3% of Series B Stock
under this clause (viii).
11
<PAGE>
7. $.975 Cumulative Preferred Stock, Series B.
(i) The distinctive serial designation of the second series of
Series Preferred Stock, which shall be a closed series, shall
be "$.975 Cumulative Preferred Stock, Series B ($1 par value)"
(hereinafter called "Series B Stock").
(ii) The number of shares of Series B Stock shall be 450,000.
(iii) The annual rate of dividends payable on shares of Series
B Stock shall be $.975 per year and no more, payable quarterly
on the last day of March, June, September and December,
respectively, in each year with respect to the quarterly
dividend period (or portion thereof) ending on such dividend
payment date; provided, however, that in the case of any
shares of Series B Stock issued prior to October 1, 1978, the
first dividend payment, which shall be of dividends accrued
since the date of issue, shall be made on December 31, 1978.
(iv) Dividends on the shares of Series B Stock shall be
cumulative from the date or dates of issue thereof. The
holders of Series B Stock, in preference to the holders of any
junior stock, shall be entitled to receive, as and when
declared by the Board of Directors out of any funds legally
available therefor, cash dividends at the rate fixed in
subdivision (iii) hereof. The term "junior stock" as used
herein means Common Stock or any other stock of the Company
which by its terms is junior to Series Preferred Stock in
respect of dividends or payments in liquidation.
In no event, so long as any shares of Series B Stock shall be
outstanding, shall any dividend, whether in cash or property,
be paid or declared, nor shall any other distribution be
ordered or made, on any junior stock, nor shall any shares of
any capital stock of the Company be purchased, redeemed or
otherwise acquired for value by the Company or by any
subsidiary of the Company, unless (A) all dividends on Series
B Stock for all past quarterly dividend periods and, in the
case of a dividend or distribution, for the then current
quarterly period, shall have been paid or declared and a sum
sufficient for the payment thereof set apart, and (B) the
Company shall have set aside all funds required for the
Sinking Fund for Series B Stock provided for in clause (vii)
of this paragraph 7 through the date of such payment,
declaration, distribution, purchase, redemption or other
acquisition. The provisions of this paragraph shall not,
however, apply to a dividend payable in any junior
12
<PAGE>
stock, to the acquisition of shares of any junior stock in
exchange for shares of any other junior stock or to the
acquisition of shares of capital stock other than junior stock
pursuant to a tender offer made on a pro rata basis for all
shares of capital stock of the Company other than junior
stock.
(v) In the event of any voluntary liquidation, dissolution or
winding up of the affairs of the Company, then before any
distribution or payment shall be made to the holders of any
junior stock, the holders of Series B Stock shall be entitled
to be paid in full the redemption price in effect at the time
of the distribution or payment date as provided in clause (vi)
of this paragraph 7 (or at the redemption price for the 12
months beginning July 15, 1983 in the event of a distribution
or payment date prior to July 15, 1983), together with accrued
dividends to such distribution or payment date whether or not
earned or declared. In the event of any involuntary
liquidation, dissolution or winding up of the affairs of the
Company, then, before any distribution or payment shall be
made to the holders of any junior stock, the holders of Series
B Stock shall be entitled to be paid in full an amount equal
to $10 per share, together with accrued dividends to such
distribution or payment date whether or not earned or
declared.
(vi) Series B Stock may be redeemed, as a whole or in part, at
the option of the Company by vote of its Board of Directors,
at any time or from time to time, at the redemption price in
effect at the redemption date as provided in this clause (vi),
together with accrued dividends to the redemption date;
provided, however, that no such redemption may be made prior
to July 15, 1983 or the date five years from the original
issue date of the Series B Stock, whichever is later. The
redemption prices per share for shares of Series B Stock
redeemed at any time during the twelve month periods indicated
shall be as follows:
<TABLE>
<CAPTION>
12 MONTHS 12 MONTHS
BEGINNING BEGINNING
JULY 15 PRICE JULY 15 PRICE
<S> <C> <C> <C> <C>
1983 $10.49 1988 $10.24
1984 10.44 1989 10.20
1985 10.39 1990 10.15
1986 10.34 1991 10.10
1987 10.29 1992 10.05
and $10 per share thereafter.
</TABLE>
The provisions of paragraph 5 of this section (a) of Article
FOURTH applicable to redemption of all Series Preferred Stock
shall apply to Series B Stock, provided that, in addition, in
the case of any
13
<PAGE>
redemption of Series B Stock the Company shall deposit, before
the redemption date, with a bank or trust company in the
Borough of Manhattan, City of New York, having a capital and
surplus of at least $25,000,000, funds necessary for such
redemption, in trust, to be applied to such redemption and the
amounts shall be made payable at the office of such bank or
trust company.
(vii) There shall be a sinking fund (hereinafter called the
"Series B Sinking Fund") for the benefit of the shares of
Series B Stock. For the purposes of the Series B Sinking Fund,
out of any net assets of the company legally available
therefor, before any dividends, in cash or property, shall be
paid or declared, or any distribution ordered or made on any
junior stock, and before any shares of any capital stock of
the Company shall be purchased, redeemed, or otherwise
acquired for value by the Company or any subsidiary, the
Company shall set aside in cash annually on June 15 in each
year commencing with June 15, 1983 (provided the first such
date shall be on the fifth anniversary of the original issue
date of the Series B Stock if such original issue date is
later than June 15, 1978), so long as there shall be
outstanding any shares of Series B Stock, an amount sufficient
to redeem 30,000 shares of Series B Stock (or such lesser
number as remains outstanding), at a price (the "Series B
Sinking Fund Redemption Price") of $10 per share plus an
amount equal to dividends accrued thereon to the date fixed
for redemption; provided, however, that there shall be allowed
to the Company as a credit thereagainst any shares of Series B
Stock which the Company may have acquired or redeemed
(otherwise than through the operation of the Series B Sinking
Fund) which have not theretofore been used for the purpose of
any such credit and which shares shall have been set aside by
the Company for the purpose of the Series B Sinking Fund. The
Series B Sinking Fund shall be cumulative so that if on any
such June 15 or the fifth anniversary date referred to above,
in the case of June 15, 1983, the net assets of the Company
legally available therefor shall be insufficient to permit any
such amount to be set aside in full, or if for any other
reason such amount shall not have been set aside in full, the
amount of the deficiency shall be set aside, but without
interest, before any dividend, in cash or property shall be
paid or declared, or any other distribution ordered or made,
on any junior stock and before any shares of any capital stock
of the Company shall be purchased, redeemed or otherwise
acquired for value by the Company or by an subsidiary of the
Company, subject to the exceptions provided in the last
sentence of clause (iv) of this paragraph 7. Moneys in the
Series B Sinking Fund shall be applied within thirty days
after having been set aside to the redemption of shares of
Series B Stock as above provided. The
14
<PAGE>
Company may elect to redeem, on any Series B Sinking Fund
Redemption Date, up to an additional 30,000 shares of Series B
Stock at the Series B Sinking Fund Redemption Price. Such
optional redemption privilege shall not be cumulative from
year to year.
The provisions of paragraph 5 of this section (a) of Article
FOURTH shall apply to all Sinking Fund redemption of Series B
Stock provided that, in addition, in the case of Series B
Sinking Fund redemption of Series B Stock the Company shall
deposit, before the redemption date, with a bank or trust
company meeting the requirements of clause (vi) of this
paragraph 7, funds necessary for such redemption, and the
amounts shall be made payable at the office of such bank or
trust company.
(viii) The holders of Series B Stock shall be entitled to vote
only as hereinafter provided and as provided in paragraph 3 of
this section (a) of Article FOURTH. Each stockholder of Series
B Stock entitled to vote at any particular time shall have one
vote for each share of Series B Stock held of record by him
and entitled to voting rights.
So long as any shares of Series B Stock are outstanding, in
addition to any other vote or consent of shareholders required
in this Certificate of Incorporation or by law, the approval
of the holders of at least sixty-six and two-thirds percent
(66-2/3%) of Series B Stock at the time outstanding shall be
necessary for effecting or validating:
(a) any amendment, alteration or repeal of any of the
provisions of the Certificate of Incorporation, or of
the By-Laws, of the company, which affects adversely
the voting powers or any other rights or preferences
of the holders of Series B Stock;
(b) authorization or creation of any class of stock
of the Company ranking prior to or on a parity with
Series Preferred Stock in respect of dividends or
payments in liquidation, or any increase in the
number of authorized shares of Series Preferred
Stock;
(c) issuance of any shares of any other series of
Series Preferred Stock unless, after giving pro forma
effect to the issuance of such shares and any
concurrent stock or debt retirement, net income of
the Company for any period of twelve consecutive
months within the preceding eighteen
15
<PAGE>
calendar months exceeds two times the aggregate of
all annual dividend requirements of Series B Stock
and all shares (outstanding pro forma) ranking prior
to or on a parity with Series B Stock with respect to
dividends; or
(d) any merger, consolidation, sale of assets or
other transaction the effect of which, in any such
case, is to accomplish an event otherwise requiring
approval by holders of 66-2/3% of Series B Stock
under this clause (viii).
8. $3.125 Cumulative Convertible Preferred Stock, Series C.
(i) The distinctive serial designation of the third series of
Series Preferred Stock, which shall be a closed series, shall
be "$3.125 Cumulative Convertible Preferred Stock, Series C
($1 par value)" (hereinafter called "Series C Stock").
(ii) The number of shares of Series C Stock shall be
3,538,936.
(iii) The annual rate of dividends payable on shares of Series
C Stock shall be $3.125 per year and no more, payable
quarterly on the last day of march, June, September and
December in each year with respect to the quarterly dividend
period (or portion thereof) ending on such dividend payment
date; provided, however, that in the case of any shares of
Series C Stock issued prior to June 30, 1981, the first
dividend payment, which shall be of dividends accrued since
February 15, 1981, shall be made on June 30, 1981.
(iv) Dividends on the shares of Series C Stock shall be
cumulative from February 15, 1981. The holders of Series C
Stock, in preference to the holders of any junior stock, shall
be entitled to receive, as and when declared by the Board of
Directors out of any funds legally available therefor, cash
dividends at the rate fixed in clause (iii) of this paragraph
8. The term "junior stock" as used herein means Common Stock
or any other stock of the Company which by its terms is junior
to Series Preferred Stock in respect of dividends or payments
in liquidation.
In no event, so long as any shares of Series C Stock shall be
outstanding, shall, any dividend, whether in cash or property,
be paid or declared, nor shall any other distribution be
ordered or made, on any junior stock, nor shall any shares of
any capital stock of the Company be purchased, redeemed or
otherwise acquired for value by the Company or by any
subsidiary of the Company, unless all dividends on Series C
Stock for all past quarterly dividend
16
<PAGE>
periods and, in the case of a dividend or distribution, for
the then current quarterly period, shall have been paid or
declared and a sum sufficient for the payment thereof set
apart. The provisions of this clause (iv) shall not however,
apply to a dividend payable in any junior stock, to the
acquisition of shares of any junior stock in exchange for
shares of any other junior stock or to the acquisition of
shares of capital stock other than junior stock pursuant to a
tender offer made on a pro rata basis for all shares of
capital stock of the Company other than junior stock (based on
the aggregate involuntary liquidation value of each series of
such capital stock outstanding).
(v) In the event of any voluntary liquidation, dissolution or
winding up of the affairs of the Company, then before any
distribution or payment shall be made to the holders of any
junior stock, the holders of Series C Stock shall be entitled
to be paid in full the redemption price in effect at the time
of the distribution or payment date as provided in clause (vi)
of this paragraph 8, together with accrued dividends to such
distribution or payment date, whether or not earned or
declared. In the event of any involuntary liquidation,
dissolution or winding up of the affairs of the Company, then,
before any distribution or payment shall be made to the
holders of any junior stock, the holders of Series C Stock
shall be entitled to be paid in full an amount equal to $25
per share, together with accrued dividends to such
distribution or payment date, whether or not earned or
declared.
(vi) Series C Stock may be redeemed, as a whole or in part, at
the option of the Company by vote of its Board of Directors,
at any time or from time to time, at the redemption price in
effect at the redemption date as provided in this clause (vi),
together with accrued dividends to the redemption date,
whether or not earned or declared. The redemption prices per
share for shares of Series C Stock redeemed at any time during
the twelve-month periods indicated shall be as follows:
<TABLE>
<CAPTION>
12 MONTHS 12 MONTHS
BEGINNING BEGINNING
FEBRUARY 15 PRICE FEBRUARY 15 PRICE
<S> <C> <C> <C> <C>
1981 $28.125 1986 $26.563
1982 27.813 1987 26.250
1983 27,500 1988 25.938
1984 27.188 1989 25.625
1985 26.875 1990 25.313
and $25 per share thereafter.
</TABLE>
17
<PAGE>
The provisions of paragraph 5 of this section (a) of article
FOURTH applicable to redemption of all Series Preferred Stock
shall apply to Series C Stock, provided that, in addition, in
the case of any redemption of Series C Stock the Company shall
deposit, before the redemption date, with a bank or trust
company in the Borough of Manhattan, City of New York, having
a capital and surplus of at least $25,000,000, funds necessary
for such redemption, in trust, to be applied to such
redemption and the amounts shall be made payable at the office
of such bank or trust company.
(vii) The holders of Series C Stock shall be entitled to vote
only as hereinafter provided and as provided in paragraph 3 of
this section (a) of Article FOURTH. Each stockholder of Series
C Stock entitled to vote at any particular time shall have one
vote for each share of Series C Stock held of record by him
and entitled to voting rights.
So long as any shares of Series C Stock are outstanding, in
addition to any other vote or consent of stockholders required
in this Certificate of Incorporation or by law, the approval
of the holders of at least sixty-six and two-thirds percent
(66-2/3%) of Series C Stock at the time outstanding shall be
necessary for effecting or validating:
(a) any amendment, alteration or repeal of any of the
provisions of the Certificate of Incorporation, or of
the By-Laws, of the Company, which affects adversely
the voting powers or any other rights or preferences
of the holders of Series C Stock;
(b) authorization or creation of any class of stock
of the Company ranking prior to or on a parity with
Series Preferred Stock in respect of dividends or
payments in liquidation, or any increase in the
number of authorized shares of Series Preferred
Stock;
(c) issuance of any shares of any other series of
Series Preferred Stock unless, after giving pro forma
effect to the issuance of such shares and any
concurrent stock or debt retirement, net income of
the Company for any period of twelve consecutive
months within the preceding eighteen calendar months
exceeds two times the aggregate of all annual
dividend requirements of Series C Stock and all
18
<PAGE>
shares (outstanding pro forma) ranking prior to or on
a parity with Series C Stock with respect to
dividends; or
(d) any merger, consolidation, sale of assets or
other transaction the effect of which, in any such
case, is to accomplish an event otherwise requiring
approval by holders of 66-2/3% of Series C Stock
under this clause (vii).
(viii) (A) Subject to the provisions for adjustment
hereinafter set forth, each share of Series C Stock
shall be convertible at the option of the holder
thereof, upon surrender at the principal office of
the Company and at such other office or offices as
the Board of Directors may designate, of the
certificate for the share so to be converted, duly
endorsed or assigned to the Company in blank, into
.833 fully paid and nonassessable shares of Common
Stock of the Company. The right to convert shares of
Series C Stock called for redemption shall terminate
at the close of business on the date fixed for
redemption. Upon conversion, no allowance or
adjustment shall be made for dividends on either
class of stock.
(B) The number of shares of Common Stock and the
number of any other shares of the Company, if any,
into which each share of Series C Stock is
convertible shall be adjusted from time to time as
follows:
(1) In case the Company shall (x) pay a
dividend on its Common Stock in other
shares, (y) subdivide its outstanding Common
Stock or (z) combine its outstanding Common
Stock into a smaller number of shares of
Common Stock, or issue by reclassification
of its shares of Common Stock (whether
pursuant to a merger or consolidation or
otherwise) any other shares of the Company,
then the holder of each share of Series C
Stock shall be entitled to receive, upon the
conversion of such share, the number of
shares of the Company which he would have
owned or have been entitled to receive after
the happening of any of the events described
above had such share been converted
immediately prior to the happening of such
event. Such adjustment shall be made
whenever any of the events listed above
shall occur. An adjustment made pursuant to
this subclause (B)(1) shall become effective
retroactively with respect to conversions
made subsequent to the record date in the
case of a
19
<PAGE>
dividend and shall become effective
immediately after the effective date in the
case of a subdivision, combination or
reclassification;
(2) In case the Company shall issue rights
or warrants to the holders of its Common
Stock as such entitling them to subscribe
for a purchase Common Stock at a price per
share less than the current market price per
share (as defined in subclause (C) below) on
such record date, then in each such case the
number of shares of Common Stock into which
each share of Series C Stock shall
thereafter be convertible shall be
determined by multiplying the number of
shares of Common Stock into which such share
of Series C Stock was theretofore
convertible by a fraction, of which the
numerator shall be the number of shares of
Common Stock outstanding on the date of
issuance of such rights or warrants plus the
number of additional shares of Common Stock
offered for subscription or purchase, and of
which the denominator shall be the number of
shares of Common Stock outstanding on the
date of issuance of such rights or warrants
plus the number of shares of Common Stock
which the aggregate offering price of the
total number of shares so offered would
purchase at such current market price. For
the purposes of this subclause (B)(2), the
issuance of rights or warrants to subscribe
for or purchase securities convertible into
shares of Common Stock shall be deemed to be
the issuance of rights or warrants to
purchase the shares of Common Stock into
which such securities are convertible at an
aggregate offering price equal to the
aggregate offering price of such securities
plus the minimum aggregate amount (if any)
payable upon conversion of such securities
into shares of Common Stock. Such adjustment
shall be made whenever any such rights or
warrants are issued and shall become
effective retroactively with respect to
conversions made subsequent to the record
date for the determination of shareholders
entitled to receive such rights or warrants.
For purposes of this subclause (B)(2) the
granting of the right to purchase shares of
Common Stock (whether from treasury shares
or otherwise) pursuant to any dividend or
interest reinvestment plan and/or any Common
Stock purchase plan providing
20
<PAGE>
for the reinvestment of dividends or
interest payable on securities of the
Company and/or the investment of periodic
optional payments at a price per share of
not less than 95 percent of the current
market price per share (determined as
provided in such plans) of the Common Stock
(so long as such right to purchase is in no
case evidenced by the delivery of rights and
warrants) shall not be deemed to constitute
an issue of rights or warrants by the
Company within the meaning of this subclause
(B)(2); and
(3) In case the Company shall distribute to
holders of its shares of Common Stock
(whether pursuant to a merger or
consolidation or otherwise) evidences of its
indebtedness or assets (excluding cash
distributions after December 31, 1979 not
exceeding (x) $100,000,000 plus (y) the
aggregate net income of the Company and its
subsidiaries on a consolidated basis after
such date determined in accordance with
generally accepted accounting principals,
less (z) dividends paid after such date on
shares other than shares of Common Stock) or
rights to subscribe (excluding those
referred to in subclause (B)(2) above) then
in each such case the number of shares of
Common Stock into which each share of Series
C Stock shall thereafter be convertible
shall be determined by multiplying the
number of shares of Common Stock into which
such share of Series C Stock was theretofore
convertible by a fraction, of which the
numerator shall be the current market price
per share of Common Stock (as defined in
subclause (C) below) on the record date for
determination of shareholders entitled to
receive such distribution, and of which the
denominator shall be such current market
price per share of Common Stock less the
fair value (as determined by a resolution of
the Board of Directors of the Company filed
with each transfer agent for the Series C
Stock, which determination shall be
conclusive) of the portion of the evidences
of indebtedness or assets or rights to
subscribe applicable to one share of Common
Stock. Such adjustment shall be made
whenever any such distribution is made and
shall become effective retroactively with
respect to conversions made subsequent to
the record date for the determination of
stockholders entitled to receive such
distribution.
21
<PAGE>
(C) For the purpose of any computation under
subclause (B) above, the current market price per
share of Common Stock on any date shall be deemed to
be the average of the daily Closing Prices for 30
consecutive Trading Days selected by the Company
commencing not more than 45 Trading Days before the
date in question. The term "Closing Price" on any day
shall mean the reported last sale price per share of
Common Stock regular way on such day or, in case no
such sale takes place on such day, the average of the
reported closing bid and asked prices regular way, in
each case on the New York Stock Exchange or, if the
shares of Common Stock are not listed or admitted to
trading on such Exchange, on the American Stock
Exchange or, if the shares of Common Stock are not
listed or admitted to trading on such Exchange, the
principal national securities exchange on which the
shares of Common Stock are listed or admitted to
trading or, if the shares of Common Stock are not
listed or admitted to trading on any national
securities exchange, the average of the closing bid
and asked prices in the over-the-counter market as
reported by the National Association of Securities
Dealers' Automated Quotation System, or, if not so
reported, as reported by the National Quotation
Bureau, Incorporated, or any successor thereof, or,
if not so reported, the average of the closing bid
and asked prices as furnished by any member of the
National Association of Securities Dealers, Inc.
selected from time to time by the Company for that
purpose; and the term "Trading Day" shall mean a day
on which the principal national securities exchange
on which the shares of Common Stock are listed or
admitted to trading is open for the transaction of
business or, if the shares of Common Stock are not
listed or admitted to trading on any national
securities exchange, a Monday, Tuesday, Wednesday,
Thursday or Friday on which banking institutions in
the Borough of Manhattan, City and State of New York,
are not authorized or obligated by law or executive
order to close.
(D) No adjustment in the conversion rate shall be
required unless such adjustment (plus any adjustments
not previously made by reason of this subclause (D))
would require an increase or decrease of at least 1%
in the number of shares of Common Stock into which
each share of Series C Stock is then convertible;
provided, however, that any adjustments which by
reason of this subclause (D) are not required to be
made shall be carried forward and taken into account
in any
22
<PAGE>
subsequent adjustment. All calculations under this
clause (viii) of paragraph 8 shall be made to the
nearest one hundred thousandth of a share.
(E) The Board of Directors may make such increases in
the conversion rate, in addition to those required by
this clause (viii) of paragraph 8, as shall be
determined by the Board, as evidenced by a Board
resolution, to be advisable in order to avoid
taxation so far as practicable of any dividend of
stock or stock rights or any event treated as such
for Federal income tax purposes to the recipients.
The Board shall have the power to resolve any
ambiguity or correct any error in this clause (viii)
of paragraph 8 and its actions in so doing, as
evidenced by a Board resolution, shall be final and
conclusive.
(F) In the event that at any time, as a result of an
adjustment made pursuant to subclause (B)(1) above,
the holder of any shares of Series C Stock thereafter
surrendered for conversion shall become entitled to
receive any shares of capital stock of the Company
other than shares of Common Stock, thereafter the
number of shares so receivable upon conversion of
such shares of Series C Stock shall be subject to
adjustment from time to time in a manner and on terms
as nearly equivalent as practicable to the provisions
with respect to the shares of Common Stock contained
in subclauses (B)(1) to (B)(3), inclusive, above, and
the other provisions of this clause (viii) of
paragraph 8 with respect to the shares of Common
Stock shall apply on like terms to any such other
shares.
(G) Whenever the conversion rate is adjusted as
herein provided:
(1) The Company shall compute the adjusted
conversion rate and shall cause to be
prepared a certificate signed by the
Company's treasurer setting forth the
adjusted conversion rate and a brief
statement of the facts requiring such
adjustment and the computation thereof; such
certificate shall forthwith be filed with
each transfer agent for the Series C Stock;
and
(2) A notice stating that the conversion
rate has been adjusted and setting forth the
adjusted conversion rate shall, as soon as
practicable, be
23
<PAGE>
mailed to the holders of record of
outstanding shares of the Series C Stock.
(H) In case:
(1) The Company shall declare a dividend or
other distribution on its Common Stock,
other than in cash;
(2) The Company shall authorize the issuance
to all holders of its Common Stock of rights
or warrants entitling them to subscribe for
or purchase any Common Stock or any other
subscription rights or warrants; or
(3) Of any reclassification of the capital
stock of the Company (other than a
subdivision or combination of its
outstanding Common Stock), or of any
consolidation or merger to which the Company
is a party and for which approval of any
shareholders of the Company is required, or
of the sale, lease, exchange or other
disposition of all or substantially all the
property and assets of the Company; or
(4) Of the voluntary or involuntary
liquidation, dissolution or winding up of
the Company; then the Company shall cause to
be mailed to each transfer agent for the
Series C Stock and to the holders of record
of the outstanding shares of Series C Stock,
at least 20 days (or 10 days in any case
specified in subclauses (H)(1) or (H)(2)
above) prior to the applicable record or
effective date hereinafter specified, a
notice stating (x) the date as of which the
holders of record of Common Stock to be
entitled to such dividend, distribution
rights or warrants are to be determined, or
(y) the date on which such reclassification,
consolidation, merger, sale, lease,
exchange, disposition, liquidation,
dissolution or winding up is expected to
become effective, and the date as of which
it is expected that holders of record of
Common Stock shall be entitled to exchange
their shares for securities or other
property, if any, deliverable upon such
reclassification, consolidation, merger,
sale, lease, exchange, disposition,
liquidation, dissolution or winding up. The
failure to give the notice required by this
subclause (H), or any defect therein, shall
not affect the legality or validity of
24
<PAGE>
any such dividend, distribution, right,
warrant, reclassification, consolidation,
merger, sale, lease, exchange, disposition,
liquidation, dissolution or winding up, or
the vote on any action authorizing such.
(I) The Company shall at all times reserve and keep
available out of its authorized but unissued Common
Stock, for the purpose of issuance upon conversion of
the Series C Stock, the full number of shares of
Common Stock then deliverable upon the conversion of
all shares of Series C Stock then outstanding.
(J) The Company will pay any and all taxes that may
be payable in respect of the issuance or delivery of
shares of Common Stock on conversion of shares of
Series C Stock. The Company 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 Common Stock in a name other
than that in which the shares of Series C Stock so
converted were registered, and no such issuance or
delivery shall be made unless and until the person
requesting such issuance has paid to the Company the
amount of any such tax or has established to the
satisfaction of the Company that such tax has been
paid.
(K) For the purpose of this clause (viii) of
paragraph 8, the term "Common Stock" shall include
any shares of the Company of any class or series
which has no preference or priority in the payment of
dividends or in the distribution of assets upon any
voluntary or involuntary liquidation, dissolution or
winding up of the Company and which is not subject to
redemption by the Company. However, shares of Common
Stock issuable upon conversion of Series C Stock
shall include only shares of the class designated as
Common Stock as of the original date of issuance of
the Series C Stock, or shares of the Company of any
classes or series resulting from any reclassification
or reclassifications thereof and which have no
preference or priority in the payment of dividends or
in the distribution of assets upon any voluntary or
involuntary liquidation, dissolution or winding up of
the Company and which are not subject to redemption
by the company, provided that if at any time there
shall be more than one such resulting class or
series, the shares of such class and series then so
issuable shall be substantially in the proportion
which the total number of
25
<PAGE>
shares of such class and series resulting from all
such reclassifications bears to the total number of
shares of all such classes and series resulting from
all such reclassifications.
(L) No fractional shares or scrip representing
fractional shares shall be issued upon the conversion
of Series C Stock. If any such conversion would
otherwise require the issuance of a fractional share,
an amount equal to such fraction multiplied by the
Closing Price (determined as provided in subclause
(C) above) of the Common Stock on the day of
conversion shall be paid to the holder in cash by the
Company.
(M) The certificate of any independent firm of public
accountants of recognized standing selected by the
Board of Directors shall be presumptive evidence of
the correctness of any computation made under this
clause (viii) of paragraph 8.
9. $3.50 Cumulative Convertible Preferred Stock, Series
D.
(i) The distinctive serial designation of the fourth series of
Series Preferred Stock, which shall be a closed series, shall
be "$3.50 Cumulative Convertible Preferred Stock, Series D ($1
par value)" (hereinafter called "Series D Stock").
(ii) The number of shares of Series D Stock shall be
2,200,000.
(iii) The annual rate of dividends payable on shares of Series
D Stock shall be $3.50 per year and no more, payable quarterly
on the last day of March, June, September and December in each
year with respect to the quarterly dividend period (or portion
thereof) ending on such dividend payment date; provided,
however, that in the case of any shares of Series D Stock
issued prior to December 31, 1986, the first dividend payment,
which shall be of dividends accrued since November 21, 1986
shall be made on March 31, 1987.
(iv) Dividends on the shares of Series D Stock shall be
cumulative from November 21, 1986. The holders of Series D
Stock, in preference to the holders of any junior stock, shall
be entitled to receive, as and when declared by the Board of
Directors out of any funds legally available therefor, cash
dividends at the rate fixed in clause (iii) of this paragraph
9. The term "junior stock" as used herein means Common Stock
or any other stock of the
26
<PAGE>
Company which by its terms is junior to Series Preferred Stock
in respect of dividends or payments in liquidation.
In no event, so long as any shares of Series D Stock shall be
outstanding, shall any dividend, whether in cash or property,
be paid or declared, nor shall any other distribution be
ordered or made, on junior stock, nor shall any shares of any
capital stock of the Company be purchased, redeemed or
otherwise acquired for value by the Company or by any
subsidiary of the Company, unless all dividends on Series D
Stock for all past quarterly dividend periods and, in the case
of a dividend or distribution, for the then current quarterly
period, shall have been paid or declared and a sum sufficient
for the payment thereof set apart. The provisions of this
clause (iv) shall not however, apply to a dividend payable in
any junior stock, to the acquisition of shares of any junior
stock in exchange for shares of any other junior stock or to
the acquisition of shares of capital stock other than junior
stock pursuant to a tender offer made on a pro rata basis for
all shares of capital stock of the Company other than junior
stock (based on the aggregate involuntary liquidation value of
each series of such capital stock outstanding).
(v) In the event of any voluntary liquidation, dissolution or
winding up of the affairs of the Company, then before any
distribution or payment shall be made to the holders of any
junior stock, the holders of Series D Stock shall be entitled
to be paid in full the redemption price in effect at the time
of the distribution or payment date as provided in clause (vi)
of this paragraph 9 (and if prior to January 2, 1990, then at
the redemption price in effect on January 2, 1990), together
with accrued dividends to such distribution or payment date,
whether or not earned or declared. In the event of any
involuntary liquidation, dissolution or winding up of the
affairs of the Company, then, before any distribution or
payment shall be made to the holders of any junior stock, the
holders of Series D Stock shall be entitled to be paid in full
an amount equal to $50 per share, together with accrued
dividends to such distribution or payment date, whether or not
earned or declared.
(vi) Series D Stock may be redeemed, as a whole or in part, at
the option of the Company by vote of its Board of Directors,
at any time or from time to time, on or after January 2, 1990,
at the redemption price in effect at the redemption date as
provided in this clause (vi), together with accrued dividends
to the redemption date, whether or not earned or declared. The
redemption prices per share for shares of Series D Stock
redeemed at any time during the twelve month periods indicated
shall be as follows:
27
<PAGE>
<TABLE>
<CAPTION>
12 MONTHS 12 MONTHS
BEGINNING BEGINNING
JANUARY 1 PRICE JANUARY 1 PRICE
<S> <C> <C> <C> <C>
1990 $52.45 1994 $51.05
1991 52.10 1995 50.70
1992 51.75 1996 50.35
1993 51.40
and $50 per share thereafter.
</TABLE>
The provisions of paragraph 5 of this section (a) of Article
FOURTH applicable to redemption of all Series Preferred Stock
shall apply to Series D Stock, provided that, in addition, in
the case of any redemption of Series D Stock the Company shall
deposit, before the redemption date, with a bank or trust
company in the Borough of Manhattan, City of New York, having
a capital and surplus of at least $25,000,000, funds necessary
for such redemption, in trust, to be applied to such
redemption and the amounts shall be made payable at the office
of such bank or trust company.
(vii) The holders of Series D Stock shall be entitled to vote
only as hereinafter provided and as provided in paragraph 3 of
this section (a) of Article FOURTH. Each stockholder of Series
D Stock entitled to vote at any particular time shall have one
vote for each share of Series D Stock held of record by him
and entitled to voting rights.
So long as any shares of Series D Stock are outstanding, in
addition to any other vote or consent of stockholders required
in this Certificate of Incorporation or by law, the approval
of the holders of at least sixty-six and two-thirds percent
(66-2/3%) of Series D Stock at the time outstanding shall be
necessary for effecting or validating:
(A) any amendment, alteration or repeal of any of the
provisions of the Certificate of Incorporation, or of
the By-Laws, of the Company, which affects adversely
the voting powers or any other rights or preferences
of the holders of Series D Stock;
(B) authorization or creation of any class of stock
of the Company ranking prior to or on a parity with
Series Preferred Stock in respect of dividends or
payments in liquidation, or any increase in the
number of authorized shares of Series Preferred
Stock;
28
<PAGE>
(C) any merger, consolidation, sale of assets or
other transaction the effect of which, in any such
case, is to accomplish an event otherwise requiring
approval by holders of 66-2/3% of Series D Stock
under this clause (vii).
(viii) (A) Subject to the provisions for adjustment
hereinafter set forth, each share of Series D Stock
shall be convertible at the option of the holder
thereof, upon surrender at the principal office of
the Company and at such other office or offices as
the Board of Directors may designate, of the
certificate for the share so to be converted, duly
endorsed or assigned to the Company in blank, into
0.909 fully paid and nonassessable shares of Common
Stock of the Company. The right to convert shares of
Series D Stock called for redemption shall terminate
at the close of business on the date fixed for
redemption. Upon conversion, no allowance or
adjustment shall be made for dividends on either
class of stock, except to the extent set forth in the
next paragraph.
Any holder of shares of Series D Stock desiring to
convert such shares into shares of Common Stock shall
surrender the certificate or certificates for the
shares of Series D Stock being converted, duly
endorsed or assigned to the Company or in blank, at
the principal office of the Company or at a bank or
trust company appointed by the Company for that
purpose, accompanied by a written notice of
conversion specifying the number (in whole shares) of
shares of Series D Stock to be converted and the name
or names in which such holder wishes the certificate
or certificates for shares of Common Stock to be
issued; in case such notice shall specify a name or
names other than that of such holder, such notice
shall be accompanied by payment of all transfer taxes
payable upon the issue of shares of Common Stock in
such name or names. In case less than all of the
shares of Series D Stock represented by a certificate
are to be converted by a holder, upon such conversion
the Company shall issue and deliver or cause to be
issued and delivered to such holder a certificate or
certificates for the shares of Series D Stock not so
converted. A holder of Series D Stock on a dividend
record date who (or whose transferee) converts Series
D Stock on a dividend payment date will be entitled
to receive and retain the dividend payable on such
Series D Stock. A holder of Series D Stock at the
close of business on a dividend record date will be
entitled to receive the dividend payable on such
Series D Stock on the corresponding dividend payment
date notwithstanding the
29
<PAGE>
conversion thereof or the Company's default in
payment of the dividend due on the dividend payment
date, but Series D Stock surrendered for conversion
during the period from the close of business on any
dividend record date to the opening of business on
the corresponding dividend payment date (except
Series D Stock called for redemption on a redemption
date during such period) must be accompanied by
payment to the Company of an amount equal to the
dividend payable on such dividend payment date. A
holder of Series D Stock called for redemption on a
redemption date between a dividend record date and
the corresponding dividend payment date who (or whose
transferee) convert such Series D Stock will be
entitled to receive such dividend and need not repay
the dividend upon surrender of such Series D Stock
for conversion.
(B) The number of shares of Common Stock and the
number of any other shares of the Company, if any,
into which each share of Series D Stock is
convertible shall be adjusted from time to time as
follows:
(1) In case the Company shall (x) pay a
dividend on its Common Stock in other
shares, (y) subdivide its outstanding Common
Stock or (z) combine its outstanding Common
Stock into a smaller number of shares of
Common Stock, or issue by reclassification
of its shares of Common Stock (whether
pursuant to a merger or consolidation or
otherwise) any other shares of the Company,
then the holder of each share of Series D
Stock shall be entitled to receive, upon the
conversion of such share, the number of
shares of the Company which he would have
owned or have been entitled to receive after
the happening of any of the events described
above had such share been converted
immediately prior to the happening of such
event. Such adjustment shall be made
whenever any of the events listed above
shall occur. An adjustment made pursuant to
this subclause (B)(1) shall become effective
retroactively with respect to conversions
made subsequent to the record date in the
case of a dividend and shall become
effective immediately after the effective
date in the case of a subdivision,
combination or reclassification;
(2) In case the Company shall issue rights
or warrants to the holders of its Common
Stock as such
30
<PAGE>
entitling them to subscribe for or purchase
Common Stock at a price per share less than
the current market price per share (as
defined in subclause (c) below) on such
record date, then in each such case the
number of shares of Common Stock into which
each share of Series D Stock shall
thereafter be convertible shall be
determined by multiplying the number of
shares of Common Stock into which such share
of Series D Stock was theretofore
convertible by a fraction, of which the
numerator shall be the number of shares of
Common Stock outstanding on the date of
issuance of such rights or warrants plus the
number of additional shares of Common Stock
offered for subscription or purchase, and of
which the denominator shall be the number of
shares of Common Stock outstanding on the
date of issuance of such rights or warrants
plus the number of shares of Common Stock
which the aggregate offering price of the
total number of shares so offered would
purchase at such current market price. For
the purposes of this subclause (B)(2), the
issuance of rights or warrants to subscribe
for or purchase securities convertible into
shares of Common Stock shall be deemed to be
the issuance of rights or warrants to
purchase the shares of Common Stock into
which such securities are convertible at an
aggregate offering price equal to the
aggregate offering price of such securities
plus the minimum aggregate amount (if any)
payable upon conversion of such securities
into shares of Common Stock. Such adjustment
shall be made whenever any such rights or
warrants are issued and shall become
effective retroactively with respect to
conversions made subsequent to the record
date for the determination of shareholders
entitled to receive such rights or warrants.
For purposes of this subclause (B)(2) the
granting of the right to purchase shares of
Common Stock (whether from treasury shares
or otherwise) pursuant to any dividend or
interest reinvestment plan and/or any Common
Stock purchase plan providing for the
reinvestment of dividends or interest
payable on securities of the Company and/or
the investment of periodic optional payments
at a price per share of not less than 95
percent of the current market price per
share (determined as provided in such plans)
of the Common Stock (so long as such right
to purchase is
31
<PAGE>
in no case evidenced by the delivery of
rights and warrants) shall not be deemed to
constitute an issue of rights or warrants by
the Company within the meaning of this
subclause (B)(2); and
(3) In case the Company shall distribute to
holders of its shares of Common Stock
(whether pursuant to a merger or
consolidation or otherwise) evidences of its
indebtedness or assets (excluding cash
distributions) or rights to subscribe
(excluding those referred to in subclause
(B)(2) above) then in each such case the
number of shares of Common Stock into which
each share of Series D Stock shall
thereafter be convertible shall be
determined by multiplying the number of
shares of Common Stock into which such share
of Series D Stock was theretofore
convertible by a fraction, of which the
numerator shall be the current market price
per share of Common Stock (as defined in
subclause (C) below) on the record date for
determination of shareholders entitled to
receive such distribution, and of which the
denominator shall be such current market
price per share of Common Stock on the date
fixed for such determination less the fair
value (as determined by a resolution of the
Board of Directors of the Company filed with
each transfer agent for the Series D Stock,
which determination shall be conclusive) of
the portion of the evidences of indebtedness
or assets or rights to subscribe applicable
to one share of Common Stock. Such
adjustment shall be made whenever any such
distribution is made and shall become
effective retroactively with respect to
conversions made subsequent to the record
date for the determination of stockholders
entitled to receive such distribution.
(C) For the purpose of any computation under
subclause (B) above, the current market price per
share of Common Stock on any date shall be deemed to
be the average of the daily Closing Prices for 30
consecutive Trading Days selected by the Company
commencing not more than 45 Trading Days before the
date in question. The term "Closing Price" on any day
shall mean the reported last sale price per share of
Common Stock regular way on such day or, in case no
such sale takes place on such day, the average of the
reported closing bid and asked prices regular way, in
each case as reported on the New York Stock Exchange
32
<PAGE>
Composite Transactions or, if the shares of Common
Stock are not listed or admitted to trading on such
Exchange, on the American Stock Exchange or, if the
shares of Common Stock are not listed or admitted to
trading on such Exchange, the principal national
securities exchange on which the shares of Common
Stock are listed or admitted to trading or, if the
shares of Common Stock are not listed or admitted to
trading on any national securities exchange, the
average of the closing bid and asked prices in the
over-the-counter market as reported by the National
Association of Securities Dealers' Automated
Quotation System, or, if not so reported, as reported
by the National Quotation Bureau, Incorporated, or
any successor thereof, or, if not so reported, the
average of the closing bid and asked prices as
furnished by any member of the National Association
of Securities Dealers, Inc. selected from time to
time by the Company for that purpose; and the term
"Trading Day" shall mean a day on which the principal
national securities exchange on which the shares of
Common Stock are listed or admitted to trading is
open for the transaction of business or, if the
shares of Common Stock are not listed or admitted to
trading on any national securities exchange, a
Monday, Tuesday, Wednesday, Thursday or Friday on
which banking institutions in the Borough of
Manhattan, City and State of New York, are not
authorized or obligated by law or executive order to
close.
(D) No adjustment in the conversion rate shall be
required unless such adjustment (plus any adjustments
not previously made by reason of this subclause (D))
would require an increase or decrease of at least 1%
in the number of shares of Common Stock into which
each share of Series D Stock is then convertible;
provided, however, that any adjustments which by
reason of this subclause (D) are not required to be
made shall be carried forward and taken into account
in any subsequent adjustment. All calculations under
this clause (viii) of paragraph 9 shall be made to
the nearest one-hundred thousandth of a share.
(E) In the event that at any time, as a result of an
adjustment made pursuant to subclause (B)(1) above,
the holder of any shares of Series D Stock thereafter
surrendered for conversion shall become entitled to
receive any shares of capital stock of the Company
other than shares of Common Stock, thereafter the
number of shares so receivable upon conversion of
such shares of Series D
33
<PAGE>
Stock shall be subject to adjustment from time to
time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the
shares of Common Stock contained in subclauses (B)(1)
to (B)(3), inclusive, above, and the other provisions
of this clause (viii) of paragraph 9 with respect to
the shares of Common Stock shall apply on like terms
to any such other shares.
(F) The Company may, but shall not be required to,
make such increases in the conversion rate, in
addition to those required by this clause (viii) of
paragraph 9 as it considers to be advisable in order
to avoid or diminish any income tax to any holder of
shares of Common Stock resulting from any dividend or
distribution of stock or issuance of rights or
warrants to purchase or subscribe for stock or from
any event treated as such for income tax purposes or
for any other reasons. The Company shall have the
power to resolve any ambiguity or correct any error
in this clause (viii) of paragraph 9 and its actions
in so doing shall be final and conclusive.
(G) In case the Company shall effect any capital
reorganization of the Common Stock (other than a
subdivision, combination, capital reorganization or
reclassification provided for in paragraph (B)) or
shall consolidate, merge or engage in a statutory
share exchange with or into any other corporation
(other than a consolidation, merger or share exchange
in which the Company is the surviving corporation and
each share of Common Stock outstanding immediately
prior to such consolidation or merger is to remain
outstanding immediately after such consolidation or
merger) or shall sell or transfer all or
substantially all its assets to any other
corporation, lawful provision shall be made as a part
of the terms of such transaction whereby the holders
of shares of Series D Stock shall receive upon
conversion thereof, in lieu of each share of Common
Stock which would have been issuable upon conversion
of such shares if converted immediately prior to the
consummation of such transaction, the same kind and
amount of stock (or other securities, cash or
property, if any) as may be issuable or distributable
in connection with such transaction with respect to
each share of Common Stock outstanding at the
effective time of such transaction, subject to
subsequent adjustments for subsequent stock dividends
and distributions, subdivisions or combinations of
shares, capital reorganizations, reclassifications,
consolidations,
34
<PAGE>
mergers or share exchanges, as nearly equivalent as
possible to the adjustments provided for in this
clause (viii) of paragraph 9.
(H) Whenever the conversion rate is adjusted as
herein provided:
(1) The Company shall compute the adjusted
conversion rate and shall cause to be
prepared a certificate signed by the
Company's treasurer setting forth the
adjusted conversion rate and a brief
statement of the facts requiring such
adjustment and the computation thereof;