Exhibit 4.2
FORM OF CERTIFICATE OF DESIGNATIONS
OF
_________ [CONVERTIBLE] [NONCUMULATIVE] [CUMULATIVE]
PREFERRED STOCK
OF
THE CHASE MANHATTAN CORPORATION
-------------------------------------------------
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
-------------------------------------------------
THE CHASE MANHATTAN CORPORATION, a corporation organized and existing
under the laws of the State of Delaware (the "Corporation"), HEREBY CERTIFIES
that the following resolutions were duly adopted by the Board of Directors of
the Corporation on _____________ and by the Stock Committee of the Board of
Directors on _________, respectively, pursuant to authority conferred upon the
Board of Directors by the provisions of the Restated Certificate of
Incorporation of the Corporation which authorize the issuance of up to
200,000,000 shares of preferred stock of $1 par value per share (the "Preferred
Stock"), and pursuant to authority conferred upon the Stock Committee of the
Board of Directors by Section 141(c) of the General Corporation Law of the State
of Delaware, by the By-Laws of the Corporation and by the resolutions of the
Board of Directors adopted at a meeting duly convened and held on___________,
1998:
1. The Board of Directors on ___________ adopted, among other resolutions,
the following resolutions authorizing a Stock Committee of the Board of
Directors to act on behalf of the Board of Directors in connection with the
issuance of the Preferred Stock and fixing the voting rights of the Preferred
Stock:
"RESOLVED that the Stock Committee may, from time to time during the Stock
Committee Term, authorize the issuance and sale of securities which shall
consist of any or all of the following: (i) one or more series of the
Corporation's preferred stock, $1 par value per share (the "Preferred Stock");
(ii) depositary shares each representing a fraction of a share of Preferred
Stock or other security ("Depositary Shares"); (iii) warrants to purchase any
shares of Preferred Stock or Depositary Shares; (iv) warrants to purchase
shares of Common Stock; (v) any shares of Preferred Stock or Common Stock or
other securities into which or for which any of the foregoing may be
exchangeable, convertible, or issuable upon exercise, and (vi) any securities
(or units or combinations of securities) (including, without limitation, any
securities of an SPV (as defined below)) that the Corporation deems functionally
equivalent to Preferred Stock by reason of such securities (or units or
combinations of securities) counting as "Tier 1 capital" of the Corporation
according to the bank regulatory agencies (all of the foregoing hereinafter
collectively referred to as the "Preferred Shares" unless the context shall
otherwise require; and the Preferred Shares and Common Stock hereinafter
collectively referred to as "Securities", unless the context shall otherwise
require), for cash or other property, as shall be determined by the Stock
Committee, subject to the limitations hereinafter set forth, and any such
Preferred Shares may be sold through agents, through underwriters, through
dealers and directly to purchasers, in one or more offerings registered under
the Securities Act of 1933 (the "Act") or in transactions not required to be
registered under the Act, all as shall be determined by the Stock Committee; and
the Stock Committee shall have full authority to take any and all actions
necessary to effect the intent of this resolution; and all Preferred Shares so
issued will be deemed duly authorized, validly issued, fully paid and
nonassessable;
RESOLVED that, without limiting the generality of the preceding
resolution, the Stock Committee is hereby expressly authorized during the Stock
Committee Term:
(i) to determine whether the Preferred Shares will be issued in one
or more series and the number of shares of any such series;
(ii) to fix the dividend rate or rates of any such shares and/or the
methods of determining dividends and the dates on which dividends
shall be payable;
(iii) to determine whether dividends of any series of Preferred
Shares shall be cumulative or noncumulative and, if cumulative, the
dates from which dividends shall commence to cumulate;
(iv) to determine the conversion or exchange provisions, if any, of
the shares of any series of the Preferred Shares, including without
limitation, the class and series of capital stock or other
securities of the Corporation into which such shares shall be
convertible or exchangeable;
(v) to determine whether the Corporation shall elect to offer (a)
warrants for such Preferred Shares ("Warrants") or (b) Depositary
Shares evidenced by depositary receipts, each representing a
fraction (to be determined by the Stock Committee) of a share of a
particular series of the Preferred Stock or other securities, which
shares of Preferred Stock or other securities will be issued and
deposited with a depositary, in each case,
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in lieu of offering full shares of such series of the Preferred
Stock or other securities;
(vi) to fix the liquidation preference of the shares of any series
of the Preferred Shares, subject to the limitation that the
aggregate liquidation preference over Common Stock of all the
Preferred Shares issued during the Stock Committee Term shall not
exceed $1.0 billion (the "Preferred Stock Maximum Amount");
(vii) to determine whether any warrants for Preferred Stock,
Depositary Shares or Common Stock shall be issued, whether alone or
in connection with any other Preferred Shares, and the terms and
conditions of any such warrants;
(viii) to determine whether the shares of any series of the
Preferred Shares shall be subject to redemption, optional or
mandatory or pursuant to a sinking fund, and, if such series shall
be subject to redemption, the redemption provisions of such series;
and
(ix) to fix or determine any additional dividend, liquidation,
redemption, sinking fund and other rights, preferences, privileges,
limitations and restrictions thereof;
RESOLVED that, if required, for any series of Preferred Stock, a
certificate shall be prepared and filed on behalf of the Corporation with the
Secretary of State of the State of Delaware pursuant to Section 151 of the
General Corporation Law of the State of Delaware (a "Certificate of
Designation"); that each such Certificate of Designation be in such form as is
approved by action of the Board of Directors or the Stock Committee; and that
the proper officers of the Corporation be and hereby are authorized to execute
and file each such Certificate of Designation pursuant to the General
Corporation Law of the State of Delaware;
RESOLVED that the Certificate of Designation for each series of the
Preferred Stock shall provide that the shares of such series shall not have any
voting powers either general or special, except that
(i) If at the time of any annual meeting of the Corporation's
stockholders for the election of directors there is a default in
preference dividends on the Preferred Stock, the number of directors
constituting the Board of Directors of the Corporation shall be increased
by two, and the holders of the Preferred Stock of all series (whether or
not the holders of such series of Preferred Stock would be entitled to
vote for the election of directors if such default in preference dividends
did not exist), shall have the right at such meeting, voting together as a
single class without regard to series, to the exclusion of the holders of
common stock, par value $1 per share, of the Corporation, to elect two
directors of the Corporation to
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fill such newly created directorships. Such right shall continue until
there are no dividends in arrears upon the Preferred Stock. Each director
elected by the holders of shares of Preferred Stock (a "Preferred
Director") shall continue to serve as such director for the full term for
which he or she shall have been elected, notwithstanding that prior to the
end of such term a default in preference dividends shall cease to exist.
Any Preferred Director may be removed by, and shall not be removed except
by, the vote of the holders of record of the outstanding shares of
Preferred Stock, voting together as a single class without regard to
series, at a meeting of the Corporation's stockholders, or of the holders
of shares of Preferred Stock, called for the purpose. So long as a default
in any preference dividends on the Preferred Stock shall exist, (a) any
vacancy in the office of a Preferred Director may be filled (except as
provided in the following clause (b)) by an instrument in writing signed
by the remaining Preferred Director and filed with the Corporation and (b)
in the case of the removal of any Preferred Director, the vacancy may be
filled by the vote of the holders of the outstanding shares of Preferred
Stock, voting together as a single class without regard to series, at the
same meeting at which such removal shall be voted. Each director appointed
as aforesaid by the remaining Preferred Director shall be deemed, for all
purposes hereof, to be a Preferred Director. Whenever the term of office
of the Preferred Directors shall end and a default in preference dividends
shall no longer exist, the number of directors constituting the Board of
Directors of the Corporation shall be reduced by two. For the purposes
hereof, a "default in preference dividends" on the Preferred Stock shall
be deemed to have occurred whenever the amount of accrued dividends upon
any series of the Preferred Stock shall be equivalent to six full
quarter-yearly dividends or more, and, having so occurred, such default
shall be deemed to exist thereafter until, but only until, all accrued
dividends on all shares of Preferred Stock of each and every series then
outstanding shall have been paid to the end of the last preceding dividend
period.
(ii) Without the consent of the holders of shares entitled to cast
at least two-thirds of the votes entitled to be cast by the holders of the
total number of shares of Preferred Stock then outstanding, voting as a
class without regard to series, the holders of shares of this series being
entitled to cast one vote per share thereon, the Corporation may not: (a)
create any class or series of stock which shall have preference as to
dividends or distribution of assets over any outstanding series of the
Preferred Stock other than a series which shall not have any right to
object to such creation or (b) alter or change the provisions of the
Corporation's Certificate of Incorporation so as to adversely affect the
voting power, preferences or special rights of the holders of Preferred
Stock; provided, however, that if such creation or such alteration or
change would adversely affect the voting power, preferences or special
rights of one or more, but not all, series of Preferred Stock at the time
outstanding, consent of the holders of shares entitled to cast at least
two-thirds of the votes entitled to be cast by the holders of all of the
shares of all such series so affected, voting as a class, shall be
required in lieu of the consent of the holders of shares entitled to cast
at least two-thirds of the votes entitled to be
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cast by the holders of the total number of shares of Preferred Stock at
the time outstanding.
2. The Stock Committee of the Board of Directors on ____________,
pursuant to the authority conferred upon the Stock Committee of the Board of
Directors by Section 141(c) of the General Corporation Law of the State of
Delaware, by Section 3.03 of the By-Laws of the Corporation and by the
resolutions of the Board of Directors set forth above, adopted the following
resolution:
"RESOLVED that, pursuant to resolutions of the Board of Directors of The
Chase Manhattan Corporation (the "Corporation") adopted on ____________, the
issue of ___________ shares of ______ [Convertible] [Noncumulative] [Cumulative]
Preferred Stock, $___ stated value per share ($1 par value), of the Corporation
ranking on a parity with the series of Preferred Stock of the Corporation
designated as the Corporation's: 10.96% Preferred Stock; 7-1/2% Cumulative
Preferred Stock; Adjustable Rate Cumulative Preferred Stock, Series L; 10-1/2%
Cumulative Preferred Stock; 9.76% Cumulative Preferred Stock; 10.84% Cumulative
Preferred Stock; and Adjustable Rate Cumulative Preferred Stock, Series N,
Fixed/Adjustable Rate Noncumulative Preferred Stock [designate other parity
series, if any] is hereby authorized and the designation, preferences and
privileges, relative, participating, optional and other special rights, and
qualifications, limitations and restrictions of all ________ shares of this
Series, in addition to those set forth in the Restated Certificate of
Incorporation of the Corporation and, with respect to voting rights, in the
resolutions of the Board of Directors of the Corporation adopted on
______________, are hereby fixed as follows:
1. Designation. The designation of this Series shall be _________
[Convertible] [Noncumulative] [Cumulative] Preferred Stock (hereinafter referred
to as this "Series"), and the number of shares constituting this Series shall be
____________. Shares of this Series shall have a stated value of $___. The
number of authorized shares of this Series may be reduced by further resolution
duly adopted by the Board of Directors of the Corporation, the Stock Committee
of the Board of Directors or by any other duly authorized committee of the Board
of Directors (collectively, the "Board of Directors") and by the filing of a
certificate pursuant to the provisions of the General Corporation Law of the
State of Delaware stating that such reduction has been so authorized, but the
number of authorized shares of this Series shall not be increased.
2. Dividends. (a) The holders of shares of this Series shall be entitled
to receive cash dividends, when, as and if declared by the Board of Directors,
out of funds legally available for that purpose, in the amounts or at the rate
set forth below in this Section 2. Dividends on the shares of this Series shall
be payable, when, as and if declared by the Board of Directors, on __________,
__________, __________ and __________ of each year (each, a "Dividend Payment
Date"), commencing on __________. Each such dividend shall be paid to the
holders of record of shares of this Series as they appear on the stock register
of the Corporation on such record date, not more than 45 days preceding the
payment date thereof, as shall be fixed by the Board of Directors.
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[IF THIS SERIES HAS FIXED RATE DIVIDENDS, INSERT THE FOLLOWING: (b)
Dividends payable on the shares of this Series for the period from _______
through and including ___________ (the "Initial Dividend Period") shall be _____
per share. For each quarterly dividend period after the Initial Dividend Period
(each such quarterly dividend period and the Initial Dividend Period being
hereinafter referred to individually as a "Dividend Period"), which quarterly
Dividend Periods shall commence on ________, ________, _________ and _________
of each year and shall end on and include the day next preceding the first day
of the next such Dividend Period, dividends payable on the shares of this Series
shall be payable at ___% per annum of the stated value thereof. [IF THIS SERIES
IS NONCUMULATIVE, INSERT THE FOLLOWING: Dividends on the shares of this Series
shall not be cumulative and no rights shall accrue to the holders of the shares
of this Series if the Corporation fails to declare a dividend on the shares of
this Series with respect to any Dividend Period, whether or not dividends are
declared with respect to any future Dividend Period.] [IF THIS SERIES IS
CUMULATIVE, INSERT THE FOLLOWING: Dividends shall be cumulative from _________.
Dividends on account of arrears for any past Dividend Periods may be declared
and paid at any time, without reference to any regular Dividend Payment Date, to
holders of record on such date, not more than 45 days preceding the payment date
thereof, as may be fixed by the Board of Directors.]]
[IF THIS SERIES HAS ADJUSTABLE DIVIDENDS BASED ON THE APPLICABLE RATE SET
FORTH BELOW, INSERT THE FOLLOWING: (b) Dividends payable on the shares of this
Series for the period from _______ through and including ___________ (the
"Initial Dividend Period") shall be _____ per share. For each quarterly dividend
period after the Initial Dividend Period (each such quarterly dividend period
and the Initial Dividend Period being hereinafter referred to individually as a
"Dividend Period"), which quarterly Dividend Periods shall commence on ________,
________, _________ and _________ of each year and shall end on and include the
day next preceding the first day of the next such Dividend Period, dividends
payable on the shares of this Series shall be payable at a rate per annum of the
stated value thereof equal to the Applicable Rate (as defined in paragraph (c)
of this Section 2). [IF THIS SERIES IS NONCUMULATIVE, INSERT THE FOLLOWING:
Dividends on the shares of this Series shall not be cumulative and no rights
shall accrue to the holders of the shares of this Series if the Corporation
fails to declare a dividend on the shares of this Series with respect to any
Dividend Period, whether or not dividends are declared with respect to any
future Dividend Period.] [IF THIS SERIES IS CUMULATIVE, INSERT THE FOLLOWING:
Dividends shall be cumulative from _________. Dividends on account of arrears
for any past Dividend Periods may be declared and paid at any time, without
reference to any regular Dividend Payment Date, to holders of record on such
date, not more than 45 days preceding the payment date thereof, as may be fixed
by the Board of Directors.]
(c) Except as provided below in this paragraph, the "Applicable Rate" for
each Dividend Period shall be equal to the Effective Rate (as hereinafter
defined) [plus][less]
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_____%. The "Effective Rate" for any Dividend Period shall be equal to the
highest of the Treasury Bill Rate, the Ten Year Constant Maturity Rate and the
Thirty Year Constant Maturity Rate (each as hereinafter defined) for such
Dividend Period. In the event that the Corporation determines in good faith that
for any reason:
(i) any one of the Treasury Bill Rate, the Ten Year Constant
Maturity Rate or the Thirty Year Constant Maturity Rate cannot be determined for
any Dividend Period, then the Effective Rate for such Dividend Period shall be
equal to the higher of whichever two of such rates can be so determined;
(ii) only one of the Treasury Bill Rate, the Ten Year Constant
Maturity Rate or the Thirty Year Constant Maturity Rate can be determined for
any Dividend Period, then the Effective Rate for such Dividend Period shall be
equal to whichever such rate can be so determined; or
(iii) none of the Treasury Bill Rate, the Ten Year Constant Maturity
Rate or the Thirty Year Constant Maturity Rate can be determined for any
Dividend Period, then the Effective Rate for the preceding Dividend Period shall
be continued for such Dividend Period.
[Anything herein to the contrary notwithstanding, the Applicable Rate for
any Dividend Period shall in no event be less than _____% per annum or greater
than ____% per annum.]
(d) Except as described below in this paragraph, the "Treasury Bill Rate"
for each Dividend Period shall be the arithmetic average of the two most recent
weekly per annum market discount rates (or the one weekly per annum market
discount rate, if only one such rate is published during the relevant Calendar
Period (as hereinafter defined)) for three-month U.S. Treasury bills, as
published weekly by the Federal Reserve Board (as hereinafter defined) during
the Calendar Period immediately preceding the last ten calendar days preceding
the Dividend Period for which the dividend rate on this Series is being
determined. In the event that the Federal Reserve Board does not publish such a
weekly per annum market discount rate during such Calendar Period, then the
Treasury Bill Rate for such Dividend Period shall be the arithmetic average of
the two most recent weekly per annum market discount rates (or the one weekly
per annum market discount rate, if only one such rate is published during the
relevant Calendar Period) for three-month U.S. Treasury bills, as published
weekly during such Calendar Period by any Federal Reserve Bank or by any U.S.
Government department or agency selected by the Corporation. In the event that a
per annum market discount rate for three-month U.S. Treasury bills is not
published by the Federal Reserve Board or by any Federal Reserve Bank or by any
U.S. Government department or agency during such Calendar Period, then the
Treasury Bill Rate for such Dividend Period shall be the arithmetic average of
the two most recent weekly per annum market discount rates (or the one weekly
per annum market discount rate, if only one such rate is published during the
relevant Calendar Period) for all of the U.S. Treasury bills then having
remaining maturities of not less than
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80 nor more than 100 days, as published during such Calendar Period by the
Federal Reserve Board or, if the Federal Reserve Board does not publish such
rates, by any Federal Reserve Bank or by any U.S. Government department or
agency selected by the Corporation. In the event that the Corporation determines
in good faith that for any reason no such U.S. Treasury bill rates are published
as provided above during such Calendar Period, then the Treasury Bill Rate for
such Dividend Period shall be the arithmetic average of the per annum market
discount rates based upon the closing bids during such Calendar Period for each
of the issues of marketable non-interest-bearing U.S. Treasury securities with a
remaining maturity of not less than 80 nor more than 100 days from the date of
each such quotation, as chosen and quoted daily for each business day in New
York City (or less frequently if daily quotations are not generally available)
to the Corporation by at least three recognized dealers in U.S. Government
securities selected by the Corporation. In the event that the Corporation
determines in good faith that for any reason the Corporation cannot determine
the Treasury Bill Rate for any applicable Dividend Period as provided above in
this paragraph, the Treasury Bill Rate for such Dividend Period shall be the
arithmetic average of the per annum market discount rates based upon the closing
bids during such Calendar Period for each of the issues of marketable
interest-bearing U.S. Treasury securities with a remaining maturity of not less
than 80 nor more than 100 days, as chosen and quoted daily for each business day
in New York City (or less frequently if daily quotations are not generally
available) to the Corporation by at least three recognized dealers in U.S.
Government securities selected by the Corporation.
(e) Except as described below in this paragraph, the "Ten Year Constant
Maturity Rate" for each Dividend Period shall be the arithmetic average of the
two most recent weekly per annum Ten Year Average Yields (as hereinafter
defined) (or the one weekly per annum Ten Year Average Yield, if only one such
yield is published during the relevant Calendar Period), as published weekly by
the Federal Reserve Board during the Calendar Period immediately preceding the
last ten calendar days preceding the Dividend Period for which the dividend rate
on this Series is being determined. In the event that the Federal Reserve Board
does not publish such a weekly per annum Ten Year Average Yield during such
Calendar Period, then the Ten Year Constant Maturity Rate for such Dividend
Period shall be the arithmetic average of the two most recent weekly per annum
Ten Year Average Yields (or the one weekly per annum Ten Year Average Yield, if
only one such yield is published during the relevant Calendar Period), as
published weekly during such Calendar Period by any Federal Reserve Bank or by
any U.S. Government department or agency selected by the Corporation. In the
event that a per annum Ten Year Average Yield is not published by the Federal
Reserve Board or by any Federal Reserve Bank or by any U.S. Government
department or agency during such Calendar Period, then the Ten Year Constant
Maturity Rate for such Dividend Period shall be the arithmetic average of the
two most recent weekly per annum average yields to maturity (or the one weekly
per annum average yield to maturity, if only one such yield is published during
the relevant Calendar Period) for all of the actively traded marketable U.S.
Treasury fixed interest rate securities (other than Special Securities (as
hereinafter defined)) then having remaining maturities of not less than eight
nor more than twelve years, as published during such
8
Calendar Period by the Federal Reserve Board or, if the Federal Reserve Board
does not publish such yields, by any Federal Reserve Bank or by any U.S.
Government department or agency selected by the Corporation. In the event that
the Corporation determines in good faith that for any reason the Corporation
cannot determine the Ten Year Constant Maturity Rate for any applicable Dividend
Period as provided above in this paragraph, then the Ten Year Constant Maturity
Rate for such Dividend Period shall be the arithmetic average of the per annum
average yields to maturity based upon the closing bids during such Calendar
Period for each of the issues of actively traded marketable U.S. Treasury fixed
interest rate securities (other than Special Securities) with a final maturity
date not less than eight nor more than twelve years from the date of each such
quotation, as chosen and quoted daily for each business day in New York City (or
less frequently if daily quotations are not generally available) to the
Corporation by at least three recognized dealers in U.S. Government securities
selected by the Corporation.
(f) Except as described below in this paragraph, the "Thirty Year Constant
Maturity Rate" for each Dividend Period shall be the arithmetic average of the
two most recent weekly per annum Thirty Year Average Yields (as hereinafter
defined) (or the one weekly per annum Thirty Year Average yield, if only one
such yield is published during the relevant Calendar Period), as published
weekly by the Federal Reserve Board during the Calendar Period immediately
preceding the last ten calendar days preceding the Dividend Period for which the
dividend rate on this Series is being determined. In the event that the Federal
Reserve Board does not publish such a weekly per annum Thirty Year Average Yield
during such Calendar Period, then the Thirty Year Constant Maturity Rate for
such Dividend Period shall be the arithmetic average of the two most recent
weekly per annum Thirty Year Average Yields (or the one weekly per annum Thirty
Year Average Yield, if only one such yield is published during the relevant
Calendar Period), as published weekly during such Calendar Period by any Federal
Reserve Bank or by any U.S. Government department or agency selected by the
Corporation. In the event that a per annum Thirty Year Average Yield is not
published by the Federal Reserve Board or by any Federal Reserve Bank or by any
U.S. Government department or agency during such Calendar Period, then the
Thirty Year Constant Maturity Rate for such Dividend Period shall be the
arithmetic average of the two most recent weekly per annum average yields to
maturity (or the one weekly per annum average yield to maturity, if only one
such yield is published during the relevant Calendar Period) for all of the
actively traded marketable U.S. Treasury fixed interest rate securities (other
than Special Securities) then having remaining maturities of not less than
twenty-eight nor more than thirty years, as published during such Calendar
Period by the Federal Reserve Board or, if the Federal Reserve Board does not
publish such yields, by any Federal Reserve Bank or by any U.S. Government
department or agency selected by the Corporation. In the event that the
Corporation determines in good faith that for any reason the Corporation cannot
determine the Thirty Year Constant Maturity for any applicable Dividend Period
as provided above in this paragraph, the Thirty Year Constant Maturity Rate for
such Dividend Period shall be the arithmetic average of the per annum average
yields to maturity based upon the closing bids during such Calendar Period for
each of the issues of actively traded marketable U.S. Treasury fixed interest
rate securities (other than Special Securities) with a final maturity
9
date not less than twenty-eight nor more than thirty years from the date of each
such quotation, as chosen and quoted daily for each business day in New York
City (or less frequently if daily quotations are not generally available) to the
Corporation by at least three recognized dealers in U.S. Government securities
selected by the Corporation.
(g) The Treasury Bill Rate, the Ten Year Constant Maturity Rate and the
Thirty Year Constant Maturity Rate shall each be rounded to the nearest five
hundredths of a percent.
(h) The Applicable Rate with respect to each Dividend Period shall be
calculated as promptly as practicable by the Corporation according to the
appropriate method described above. The Corporation shall cause notice of each
Applicable Rate to be sent to the holders of this Series.
(i) For purposes of this Section,
(i) "Calendar Period" means a period of fourteen calendar days;
(ii) "Federal Reserve Board" means the Board of Governors of the
Federal Reserve System;
(iii) "Special Securities" means securities which can, at the option
of the holder, be surrendered at face value in payment of any Federal
estate tax or which provide tax benefits to the holder and are priced to
reflect such tax benefits or which were originally issued at a deep or
substantial discount;
(iv) "Ten Year Average Yield" means the average yield to maturity
for actively traded marketable U.S. Treasury fixed interest rate
securities (adjusted to constant maturities of ten years); and
(v) "Thirty Year Average Yield" means the average yield to maturity
for actively traded marketable U.S. Treasury fixed interest rate
securities (adjusted to constant maturities of thirty years).]
[IF THIS SERIES HAS ADJUSTABLE DIVIDENDS BASED ON A RATE OTHER THAN THE RATE SET
FORTH ABOVE, INSERT THE APPROPRIATE CALCULATION OF SUCH RATE]
[(c)][(i)] Dividends payable on this Series for any period greater or less
than a full Dividend Period, other than the Initial Dividend Period, shall be
computed on the basis of a 360-day year consisting of twelve 30-day months and,
for any period less than one month, the actual number of days elapsed in the
period. [Dividends payable on this Series for each full Dividend Period shall be
computed by annualizing the Dividend Rate and dividing by four.]
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[(d)][(j)] No full dividends shall be declared or paid or set apart for
payment on the Preferred Stock of any series ranking, as to dividends, on a
parity with or junior to this Series for any period unless [IF THIS SERIES IS
NONCUMULATIVE, INSERT THE FOLLOWING: full dividends on the shares of this Series
for the Dividend Period commencing on the day following the immediately
preceding Dividend Payment Date have been or contemporaneously are declared and
paid or declared and a sum sufficient for the payment thereof set apart for such
payment] [IF THIS SERIES IS CUMULATIVE, INSERT THE FOLLOWING: full cumulative
dividends have been or contemporaneously are declared and paid or declared and a
sum sufficient for the payment thereof set apart for such payment on this Series
for all Dividend Periods terminating on or prior to the date of payment of such
full cumulative dividends]. When dividends are not paid in full, as aforesaid,
upon the shares of this Series and any other series of Preferred Stock ranking
on a parity as to dividends with this Series, all dividends declared upon shares
of this Series and any other series of Preferred Stock ranking on a parity as to
dividends with this Series shall be declared pro rata so that the amount of
dividends declared per share on this Series and such other Preferred Stock shall
in all cases bear to each other the same ratio that accrued and unpaid dividends
per share [IF THIS SERIES IS NONCUMULATIVE, INSERT THE FOLLOWING: (which in the
case of this Series shall include accrued and unpaid dividends for the Dividend
Period commencing on the day following the immediately preceding Dividend
Payment Date but shall not include accumulation of any dividends for prior
Dividend Periods, unless previously declared)] on the shares of this Series and
such other Preferred Stock bear to each other. No interest, or sum of money in
lieu of interest, shall be payable in respect of any dividend payment or
payments on this Series which may be in arrears.
[(e)][(k)] So long as any shares of this Series are outstanding, no
dividend (other than a dividend in Common Stock or in any other stock ranking
junior to this Series as to dividends and upon liquidation and other than as
provided in paragraph (d) of this Section 2) shall be declared or paid or set
aside for payment or other distribution declared or made upon the Common Stock
or upon any other stock ranking junior to or on a parity with this Series as to
dividends or upon liquidation, nor shall any Common Stock or any other stock of
the Corporation ranking junior to or on a parity with this Series as to
dividends or upon liquidation be redeemed, purchased or otherwise acquired for
any consideration (or any moneys be paid to or made available for a sinking fund
for the redemption of any shares of any such stock) by the Corporation (except
by conversion into or exchange for stock of the Corporation ranking junior to
this Series as to dividends and upon liquidation), unless, in each case, [IF
THIS SERIES IS NONCUMULATIVE, INSERT THE FOLLOWING: full dividends on all
outstanding shares of this Series shall have been paid or declared and set aside
for payment in respect of the Dividend Period commencing on the day following
the immediately preceding Dividend Payment Date] [IF THIS SERIES IS CUMULATIVE,
INSERT THE FOLLOWING: the full cumulative dividends on all outstanding shares of
this Series shall have been paid or declared and set aside for payment for all
past Dividend Periods].
11
[INSERT ANY OTHER PROVISIONS APPLICABLE TO DIVIDENDS WITH RESPECT TO THIS
SERIES.]
3. Redemption.
[IF THIS SERIES IS REDEEMABLE AT A FIXED PRICE, INSERT THE FOLLOWING: (a)
[The shares of this Series are not redeemable prior to _________.] The
Corporation, at its option, may redeem shares of this Series, as a whole or in
part, at any time or from time to time, [on or after ______________,] at a
redemption price of ____ per share plus accrued and unpaid dividends thereon
(whether or not declared) [IF THIS SERIES IS NONCUMULATIVE from the immediately
preceding Dividend Payment Date] to the date fixed for redemption [IF THIS
SERIES IS NONCUMULATIVE, INSERT THE FOLLOWING: (but without any accumulation for
unpaid dividends for prior Dividend Periods on the shares of this Series)].
[IF THIS SERIES IS REDEEMABLE AT VARIABLE PRICES, INSERT THE FOLLOWING:
(a) [The shares of this Series are not redeemable prior to _________.] The
Corporation, at its option, may redeem shares of this Series, as a whole or in
part, at any time or from time to time, [on or after ____________,] at the
applicable redemption price set forth below, plus accrued and unpaid dividends
thereon (whether or not declared) [IF THIS SERIES IS NONCUMULATIVE from the
immediately preceding Dividend Payment Date] to the date fixed for redemption
[IF THIS SERIES IS NONCUMULATIVE, INSERT THE FOLLOWING: (but without any
accumulation for unpaid dividends for prior Dividend Periods on the shares of
this Series)]:
[ IF THIS SERIES IS REDEEMABLE PURSUANT TO A SINKING FUND, INSERT THE
FOLLOWING:
(b) So long as any shares of this Series shall be outstanding, the
Corporation shall on each of the dates set forth in the following schedule
("Sinking Fund Payment Dates") set aside an amount sufficient for the redemption
of, and shll redeem, the number of shares of this Series set forth opposite such
Sinking Fund Payment Date:
Sinking Fund Payment Date Number of Shares to be Redeemed
------------------------- -------------------------------
12
The redemption price of shares of this Series to be redeemed pursuant to the
aforesaid sinking fund shall be $___ per share, plus accrued and unpaid
dividends thereon (whether or not declared) [IF THIS SERIES IS NONCUMULATIVE,
INSERT THE FOLLOWING: from the immediately preceding Dividend Payment Date] to
the date fixed for redemption [IF THIS SERIES IS NONCUMULATIVE, INSERT THE
FOLLOWING: (but without any accumulation for unpaid dividends for prior Dividend
Periods on the shares of this Series)]. The Corporation may, at its option,
apply toward its sinking fund obligation any shares of this Series puchased or
otherwise acquired by the Corporation or redeemed by the Corporation otherwise
than through the sinking fund which have not previously been credited toward a
sinking fund obligation. The obligation of the Corporation to redeem shares of
this Series shall be cumulative, so that if for any year or years such
requirements shall not be fully discharged as they accrue, funds legally
available therefor, after payment or provision for dividends, for each year
thereafter shall be applied thereto until such requirements are fully
discharged.]
[IF THIS SERIES IS SUBJECT TO EITHER OPTIONAL OR MANDATORY REDEMPTION, INSERT
THE FOLLOWING:
[(b)][(c)] In the event that fewer than all the outstanding shares of
this Series are to be redeemed [(by operation of a sinking fund or otherwise)],
the number of shares to be redeemed shall be determined by the Board of
Directors and the shares to be redeemed shall be determined by lot or pro rata
as may be determined by the Board of Directors or by any other method as may be
determined by the Board of Directors in its sole discretion to be equitable,
provided that such method satisfies any applicable requirements of any
securities exchange on which this Series is listed.
[(c)][(d)] In the event the Corporation shall redeem shares of this
Series [(by operation of a sinking fund or otherwise)], notice of such
redemption shall be given by first class mail, postage prepaid, mailed not less
than 30 or more than 60 days prior to the redemption date, to each holder of
record of the shares to be redeemed, at such holder's address as the same
appears on the stock register of the Corporation. Each such notice shall state:
(i) the redemption date; (ii) the number of shares of this Series to be redeemed
and, if fewer than all the shares held by such holder are to be redeemed, the
number of such shares to be redeemed from such holder; (iii) the redemption
price; (iv) the place or places where certificates for such shares are to be
surrendered for payment of the redemption price; [and] (v) that dividends on the
shares to be redeemed shall cease to accrue on the redemption date [IF THIS
SERIES IS CONVERTIBLE, INSERT THE FOLLOWING; and (vi) that such holder has the
right to convert such shares into a number of shares of Common Stock prior to
the close of business on the redemption date].
[(d)][(e)] Notice having been mailed as aforesaid, from and after the
redemption date (unless default shall be made by the Corporation in providing
money for the payment of the redemption price) dividends on the shares of this
Series so called for redemption shall cease to accrue, and said shares shall no
longer be deemed to be outstanding, and all
13
rights of the holders thereof as stockholders of the Corporation (except the
right to receive from the Corporation the redemption price) shall cease [ IF
THIS SERIES IS CONVERTIBLE, INSERT THE FOLLOWING: ; provided that,
notwithstanding the foregoing, if notice of redemption has been given pursuant
to this paragraph and any holder of shares of this Series shall, prior to the
close of business on the redemption date, surrender for conversion any or all of
the shares to be redeemed held by such holder in accordance with Section 4, then
the conversion of such shares to be redeemed shall become effective as provided
in Section 4.] Upon surrender in accordance with said notice of the certificates
for any shares so redeemed (properly endorsed or assigned for transfer, if the
Board of Directors shall so require and the notice shall so state), such shares
shall be redeemed by the Corporation at the redemption price aforesaid. In case
fewer than all the shares represented by any such certificate are redeemed, a
new certificate shall be issued representing the unredeemed shares without cost
to the holder thereof.
[(e)][(f)] Any shares of this Series which shall at any time have been
redeemed shall, after such redemption, have the status of authorized but
unissued shares of Preferred Stock, without designation as to series until such
shares are once more designated as part of a particular series by the Board of
Directors.
[(f)][(g)] Notwithstanding the foregoing provisions of this Section 3, if
full dividends on all outstanding shares of this Series are in arrears, no
shares of this Series shall be redeemed unless all outstanding shares of this
Series are simultaneously redeemed, and the Corporation shall not purchase or
otherwise acquire any shares of this Series; provided, however, that the
foregoing shall not prevent the purchase or acquisition of shares of this Series
pursuant to a purchase or exchange offer made on the same terms to holders of
all outstanding shares of this Series.]
[IF THIS SERIES IS NOT CONVERTIBLE, INSERT THE FOLLOWING:
4. Conversion. The holders of shares of this Series shall not have any
rights to convert such shares into shares of any other class or series of
capital stock of the Corporation.]
[IF THIS SERIES IS CONVERTIBLE FOR SHARES OF COMMON STOCK, INSERT THE FOLLOWING]
4. Conversion. (a) Subject to and upon compliance with the provisions of
this Section 4, each holder of shares of this Series shall have the right, at
such holder's option, at any time [from and after ___________], to convert any
or all of the shares of this Series held by such holder into the number of fully
paid and nonassessable shares of Common Stock (calculated as to each conversion,
for the purpose of determining the amount of any cash payments provided for
under paragraph (c) of this Section 4, to the nearest .01 of a share of Common
Stock, as the case may be, with one-half cent and .005 of a share, respectively,
being rounded upward) obtained by dividing the stated value of a share of
14
this Series by the Conversion Price (as defined below) and multiplying such
resulting number by the number of shares of this Series to be converted, and by
surrender of such shares of this Series so to be converted, such surrender to be
made in the manner provided in paragraph (b) of this Section 4; provided,
however, that the right to convert shares called for redemption pursuant to
Section 3 hereof shall terminate at the close of business on the date fixed for
such redemption unless the Corporation shall default in making payment of the
amount payable upon such redemption.
The term "Conversion Price" shall mean $______, as adjusted in accordance with
the provisions of this Section 4.
(b). In order to exercise the conversion privilege, the holder of each
share of this Series to be converted shall surrender the certificate
representing such share at the office of any transfer agent for the Common Stock
and shall give written notice to the Corporation at said office that such holder
elects to convert the same, specifying the name or names and denominations in
which such holder wishes the certificate or certificates for the Common Stock to
be issued (which notice may be in the form of a notice of election to convert
which may be printed on the reverse of the certificates for the shares of this
Series). Unless the shares issuable on conversion are to be issued in the same
name as the name in which such share of this Series is registered, each share
surrendered for conversion shall be accompanied by instruments of transfer, in
form satisfactory to the Corporation, duly executed by the holder or his duly
authorized attorney, and by an amount sufficient to pay any transfer or similar
tax.
The holders of shares of this Series at the close of business on a dividend
payment record date shall be entitled to receive the dividend payable on such
shares (except that holders of shares called for redemption on a redemption date
between such record date and the Dividend Payment Date shall not be entitled to
receive such dividend on such Dividend Payment Date) on the corresponding
dividend payment date notwithstanding the conversion thereof or the
Corporation's default in payment of the dividend due on such Dividend Payment
Date. However, shares of this Series surrendered for conversion during the
period between the close of business on any dividend payment record date and the
opening of business on the corresponding Dividend Payment Date (except shares
called for redemption on a redemption date during such period) must be
accompanied by payment of an amount equal to the dividend payable on such shares
on such Dividend Payment Date. A holder of shares of this Series on a dividend
payment record date who (or whose transferee) tenders any of such shares for
conversion into shares of Common Stock on a Dividend Payment Date will receive
the dividend payable by the Corporation on such shares of this Series on such
date, and the converting holder need not include payment in the amount of such
dividend upon surrender of shares of this Series for conversion. Except as
provided above, the Corporation shall make no payment or allowance for unpaid
dividends, whether or not in arrears, on converted shares or for dividends on
the shares of Common Stock issued upon such conversion.
15
As promptly as practicable after the surrender of the certificates for shares of
this Series as aforesaid, the Corporation shall issue and shall deliver at the
office of any transfer agent for the Common Stock to such holder, or on his
written order, a certificate or certificates for the number of full shares of
Common Stock issuable upon the conversion of such shares in accordance with the
provisions of this Section 4, together with a certificate or certificates
representing any shares of this Series which are not to be converted but which
shall have constituted part of the shares of this Series represented by the
certificate or certificates so surrendered, and any fractional interest in
respect of a share of Common Stock arising upon such conversion shall be settled
as provided in subparagraph (c) of this Section 4.
Each conversion shall be deemed to have been effected immediately prior to the
close of business on the date on which the certificates for shares of this
Series shall have been surrendered and such notice (and, if applicable, payment
of an amount equal to the dividend payable on such shares) received by the
Corporation as aforesaid, and the person or persons in whose name or names any
certificate or certificates for shares of Common Stock shall be issuable upon
such conversion shall be deemed to have become the holder or holders of record
of the shares represented thereby at such time on such date and such conversion
shall be at the Conversion Price in effect at such time on such date, unless the
stock transfer books of the Corporation shall be closed on such date, in which
event such person or persons shall be deemed to have become such holder or
holders of record at the close of business on the next succeeding day on which
such stock transfer books are open, but such conversion shall be at the
Conversion Price in effect on the date upon which such shares shall have been
surrendered and such notice (and, if applicable, payment) received by the
Corporation. All shares of Common Stock delivered upon conversion of the shares
of this Series will upon delivery be duly and validly issued and fully paid and
nonassessable, free of all liens and charges and not subject to any preemptive
rights.
(c) No fractional shares or scrip representing fractions of shares of
Common Stock shall be issued upon conversion of shares of this Series. Instead
of any fractional interest in a share of Common Stock which would otherwise be
deliverable upon the conversion of a share of this Series, the Corporation shall
pay to the holder of such share of this Series an amount in cash (computed to
the nearest cent, with one-half cent being rounded upward) equal to the reported
last sales price (as defined in subparagraph (d)(v) of this Section 4) of the
Common Stock on the Trading Day (as defined in subparagraph (d)(v) of this
Section 4) next preceding the day of conversion multiplied by the fraction of a
share of Common Stock represented by such fractional interest. If more than one
share of this Series shall be surrendered for conversion at one time by the same
holder, the number of full shares of Common Stock issuable upon conversion
thereof shall be computed on the basis of the aggregate stated value of the
shares of this Series so surrendered.
(d) The Conversion Price shall be adjusted from time to time as follows:
16
(i) In case the Corporation shall (x) pay a dividend or make a
distribution on the Common Stock in shares of Common Stock, (y) subdivide the
outstanding Common Stock into a greater number of shares or (z) combine the
outstanding Common Stock into a smaller number of shares, the Conversion Price
shall be adjusted so that the holder of any share of this Series thereafter
surrendered for conversion shall be entitled to receive the number of shares of
Common Stock of the Corporation 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 record date in the case of a
dividend or the effective date in the case of subdivision or combination. An
adjustment made pursuant to this subparagraph (i) shall become effective
immediately after the record date in the case of a dividend, except as provided
in subparagraph (viii) below, and shall become effective immediately after the
effective date in the case of a subdivision or combination. No adjustment in the
Conversion Price shall be made if, at the same time as the Corporation shall
issue shares of Common Stock as a dividend or distribution on the outstanding
shares of Common Stock which would otherwise call for an adjustment in the
Conversion Price, the Corporation shall issue shares of Common Stock as a
dividend or distribution on the outstanding shares of this Series equivalent to
the number of shares distributable on the shares of Common Stock into which this
Series is then convertible.
(ii) In case the Corporation shall issue rights or warrants to all
holders of shares of Common Stock entitling them (for a period expiring within
45 days after the record date mentioned below) to subscribe for or purchase
shares of Common stock at a price per share less than the current market price
per share of Common Stock (as defined for purposes of this subparagraph (ii) in
subparagraph (v) below), at the record date for the determination of
stockholders entitled to receive such rights or warrants, the Conversion Price
in effect after such record date shall be determined by multiplying the
Conversion Price in effect immediately prior to such record date by a fraction,
the numerator of which shall be the number of shares of Common Stock outstanding
on the record date for 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 of Common Stock so offered would purchase at such current market price,
and the denominator of which shall be the number of shares of Common Stock
outstanding on the record date for issuance of such rights or warrants plus the
number of additional shares of Common Stock receivable upon exercise of such
rights or warrants. Such adjustment shall be made successively whenever any such
rights or warrants are issued, and shall become effective immediately, except as
provided in subparagraph (viii) below, after such record date. In determining
whether any rights or warrants entitled the holders of the shares of this Series
to subscribe for or purchase shares of Common Stock at less than such current
market price, and in determining the aggregate offering price of such shares of
Common Stock, there shall be taken into account any consideration received by
the Corporation for such rights or warrants plus the exercise price thereof, the
value of such consideration or exercised price, as the case may be, if other
than cash, to be determined by the Board of Directors.
17
(iii) In case the Corporation shall distribute to all holders of
Common Stock any shares of capital stock of the Corporation (other than Common
Stock) or evidences of its indebtedness or assets (excluding cash dividends or
distributions paid from retained earnings of the Corporation or dividends
payable in Common Stock) or rights or warrants to subscribe for or purchase any
of its securities (excluding those rights or warrants referred to in
subparagraph (ii) above) (any of the foregoing being hereinafter in this
subparagraph (iii) called the "Securities"), then, in each such case, unless the
Corporation elects to reserve such Securities for distribution to the holders of
the shares of this Series upon the conversion of the shares of this Series so
that any such holder converting shares of this Series will receive upon such
conversion, in addition to the shares of the Common Stock to which such holder
is entitled, the amount and kind of such Securities which such holder would have
received if such holder had, immediately prior to the record date for the
distribution of the Securities, converted its shares of this Series into Common
Stock, the Conversion Price shall be adjusted so that the same shall equal the
price determined by multiplying the Conversion Price in effect immediately prior
to the date of such distribution by a fraction the numerator of which shall be
the current market price per share (as defined for purposes of this subparagraph
(iii) in subparagraph (v) below) of the Common Stock on the record date
mentioned above less the then fair market value (as determined by the Board of
Directors, whose determination shall be conclusive) of the portion of the
Securities so distributed applicable to one share of Common Stock, and the
denominator of which shall be the current market price per share (as defined in
subparagraph (v) below) of the Common Stock; provided, however, that in the
event the then fair market value (as so determined) of the portion of the
Securities so distributed applicable to one share of Common Stock is equal to or
greater than the current market price per share (as defined in subparagraph (v)
below) of the Common Stock on the record date mentioned above, in lieu of the
foregoing adjustment, adequate provision shall be made so that each holder of
shares of this Series shall have the right to receive the amount and kind of
Securities such holder would have received had such holder converted each such
share of this Series immediately prior to the record date for the distribution
of the Securities. Such adjustment shall become effective immediately, except as
provided in subparagraph (viii) below, after the record date for the
determination of shareholders entitled to receive such distribution.
(iv) If, pursuant to subparagraph (ii) or (iii) above, the number of
shares of Common Stock into which a share of this Series is convertible shall
have been adjusted because the Corporation has declared a dividend, or made a
distribution, on the outstanding shares of Common Stock in the form of any right
or warrant to purchase securities of the Corporation, or the Corporation has
issued any such right or warrant, then, upon the expiration of any such
unexercised right or unexercised warrant, the Conversion Price shall forthwith
be adjusted to equal the Conversion Price that would have applied had such right
or warrant never been declared, distributed or issued.
(v) For the purpose of any computation under subparagraph (ii)
above, the current market price per share of Common Stock on any date shall be
deemed to be the average of the reported last sales prices for the thirty
consecutive Trading Days (as
18
defined below) commencing forty-five Trading Days before the date in question.
For the purpose of any computation under subparagraph (iii) above, the current
market price per share of Common Stock on any date shall be deemed to be the
average of the reported last sales prices for the ten consecutive Trading Days
before the date in question. The reported last sales price for each day (whether
for purposes of subparagraph (ii) or subparagraph (iii)) shall be the reported
last sales price, regular way, or, in case no sale takes place on such day, the
average of the reported closing bid and asked prices, regular way, in either
case as reported on the New York Stock Exchange Composite Tape or, if the Common
Stock is not listed or admitted to trading on the New York Stock Exchange at
such time, on the principal national securities exchange on which the Common
Stock is listed or admitted to trading or, if not listed or admitted to trading
on any national securities exchange, on the National Market System of the
National Association of Securities Dealers, Inc. Automated Quotations System
("NASDAQ") or, if the Common Stock is not quoted on such National Market System,
the average of the closing bid and asked prices on such day in the
over-the-counter market as reported by NASDAQ or, if bid and asked prices for
the Common Stock on each such day shall not have been reported through NASDAQ,
the average of the bid and asked prices for such date as furnished by any New
York Stock Exchange member firm regularly making a market in the Common Stock
selected for such purpose by the Board of Directors or, if no such quotations
are available, the fair market value of the Common Stock as determined by a New
York Stock Exchange member firm regularly making a market in the Common Stock
selected for such purpose by the Board of Directors. As used herein, the Term
"Trading Day" with respect to Common Stock means (x) if the Common Stock is
listed or admitted for trading on the New York Stock Exchange or another
national securities exchange, a day on which the New York Stock Exchange or such
other national securities exchange is open for business or (y) if the Common
Stock is quoted on the National Market System of the NASDAQ, a day on which
trades may be made on such National Market System or (z) otherwise, any day
other than a Saturday or Sunday or a day on which banking institutions in the
State of New York are authorized or obligated by law or executive order to
close.
(vi) No adjustment in the Conversion Price shall be required unless
such adjustment would require an increase or decrease of at least 1% in such
price; provided, however, that any adjustments which by reason of this
subparagraph (F) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations under this Section 4
shall be made to the nearest cent or to the nearest .01 of a share, as the case
may be, with one-half cent and .005 of a share, respectively, being rounded
upward. Anything in this paragraph (d) to the contrary notwithstanding, the
Corporation shall be entitled to make such reductions in the Conversion Price,
in addition to those required by this paragraph (d), as it in its discretion
shall determine to be advisable in order that any stock dividend, subdivision of
shares, distribution of rights or warrants to purchase stock or securities, or
distribution of other assets (other than cash dividends) hereafter made by the
Corporation to its stockholders shall not be taxable.
(vii) Whenever the Conversion Price is adjusted as herein provided,
the Corporation shall file with the transfer agent a certificate, signed by the
Chairman of the
19
Board, the President, any Vice Chairman, any Senior Executive Vice President,
Executive Vice President, Senior Vice President, Managing Director or Vice
President of the Corporation, setting forth the Conversion Price after such
adjustment and setting forth a brief statement of the facts requiring such
adjustment, which certificate shall be conclusive evidence of the correctness of
such adjustment; provided, however, that the failure of the Corporation to file
such officers' certificate shall not invalidate any corporate action by the
Corporation.
(viii) In any case in which this paragraph (d) provides that an
adjustment shall become effective immediately after a record date for an event,
the Corporation may defer until the occurrence of such event (y) issuing to the
holder of any share of this Series converted after such record date and before
the occurrence of such event the additional shares of Common Stock issuable upon
such conversion by reason of the adjustment required by such event over and
above the Common Stock issuable upon such conversion before giving effect to
such adjustment and (z) paying to such holder any amount of cash in lieu of any
fractional share of Common Stock pursuant to paragraph (c) of this Section 4.
(e) Whenever the Conversion Price is adjusted as provided in
paragraph (d), the Corporation shall cause to be mailed to each holder of shares
of this Series at its then registered address by first-class mail, postage
prepaid, a notice of such adjustment of the Conversion Price setting forth such
adjusted Conversion Price and the effective date of such adjusted Conversion
Price; provided, however, that the failure of the Corporation to give such
notice shall not invalidate any corporate action by the Corporation.
(f) The Corporation covenants that it will at all times reserve and
keep available, free from preemptive rights, out of the aggregate of its
authorized but unissued shares of Common Stock or its issued shares of Common
Stock held in its treasury, or both, for the purpose of effecting conversions of
shares of this Series, the full number of shares of Common Stock deliverable
upon the conversion of all outstanding shares of this Series not theretofore
converted. For purposes of this paragraph (f), the number of shares of Common
Stock which shall be deliverable upon the conversion of all outstanding shares
of this Series shall be computed as if at the time of computation all such
outstanding shares were held by a single holder.
(g) The Corporation will pay any and all documentary stamp or
similar issue or transfer taxes payable in respect of the issue or delivery of
share of Common Stock on conversions of shares of this Series pursuant hereto;
provided, however, that the Corporation shall not be required to pay any tax
which may be payable in respect of any transfer involved in the issue or
delivery of shares of Common Stock in a name other than that of the holder of
shares of this Series to be converted and no such issue or delivery shall be
made unless and until the person requesting such issue or delivery has paid to
the Corporation the amount of any such tax or has established, to the
satisfaction of the Corporation, that such tax has been paid.
20
(h) Notwithstanding any other provision herein to the contrary, if
any of the following events occur, namely (w) any reclassification or change of
outstanding shares of Common Stock (other than a change in par value, or from
par value to no par value, or from no par value to par value, or as a result of
a subdivision or combination of the Common Stock), (x) any consolidation, merger
or combination of the Corporation with or into another corporation as a result
of which holders of Common Stock shall be entitled to receive stock, securities
or other property or assets (including cash) with respect to or in exchange for
such Common Stock, or (y) any sale or conveyance of the properties and assets of
the Corporation as, or substantially as, an entirety to any other entity as a
result of which holders of Common Stock shall be entitled to receive stock,
securities or other property or assets (including cash) with respect to or in
exchange for such Common Stock, then appropriate provision shall be made so that
the holder of each share of this Series then outstanding shall have the right to
convert such share into the kind and amount of the shares of stock and
securities or other property or assets (including cash) that would have been
receivable upon such reclassification, change, consolidation, merger,
combination, sale or conveyance by a holder of the number of shares of Common
Stock issuable upon conversion of such share of this Series immediately prior to
such reclassification, change, consolidation, merger, combination, sale or
conveyance. The adjustments described in this paragraph (h) shall be subject to
further adjustments as appropriate that shall be as nearly equivalent as may be
practicable to the relevant adjustment provided for in this paragraph (h). If,
in the case of any such consolidation, merger, combination, sale or conveyance,
the stock or other securities and property receivable thereupon by a holder of
shares of Common Stock includes shares of stock, securities or other property or
assets (including cash) of an entity other than the successor or acquiring
entity, as the case may be, in such consolidation, merger, combination, sale or
conveyance, then the Corporation shall enter into an agreement with such other
entity for the benefit of the holders of this Series that shall contain such
provisions to protect the interests of such holders as the Board of Directors
shall reasonably consider necessary by reason of the foregoing.
(i) Upon any conversion of shares of this Series, the shares of this
Series so converted shall have the status of authorized and unissued shares of
Preferred Stock, without designation as to series until such shares are once
more designated as part of a particular series by the Board of Directors.
5. Liquidation Rights. (a) Upon the voluntary or involuntary dissolution,
liquidation or winding up of the Corporation, the holders of the shares of this
Series shall be entitled to receive and to be paid out of the assets of the
Corporation available for distribution to its stockholders, before any payment
or distribution shall be made on the Common Stock or on any other class of stock
ranking junior to this Series upon liquidation, the amount of $___ per share,
plus accrued and unpaid dividends thereon (whether or not declared) [IF THIS
SERIES IS NONCUMULATIVE, INSERT THE FOLLOWING: from the immediately preceding
Dividend Payment Date or the date of original issuance of this Series, as the
case may be,] to the date of the liquidating
21
distribution [IF THIS SERIES IS NONCUMULATIVE, INSERT THE FOLLOWING, (but
without any accumulation of unpaid dividends for prior Dividend Periods)].
(b) After the payment to the holders of the shares of this Series of the
full preferential amounts provided for in this Section 5, the holders of this
Series as such shall have no right or claim to any of the remaining assets of
the Corporation.
(c) If, upon any voluntary or involuntary dissolution, liquidation, or
winding up of the Corporation, the amounts payable with respect to the shares of
this Series and any other shares of stock of the Corporation ranking as to any
such distribution on a parity with the shares of this Series are not paid in
full, the holders of the shares of this Series and of such other shares shall
share ratably in any such distribution of assets of the Corporation in
proportion to the full respective distributions to which they are entitled.
(d) Neither the sale of all or substantially all the property or business
of the Corporation, nor the merger or consolidation of the Corporation into or
with any other corporation or the merger or consolidation of any other
corporation into or with the Corporation, shall be deemed to be a dissolution,
liquidation or winding up, voluntary or involuntary, for the purposes of this
Section 5.
7. Ranking. For purposes of this resolution, any stock of any class or
classes of the Corporation shall be deemed to rank:
(a) prior to the shares of this Series, either as to dividends or upon
liquidation, if the holders of such class or classes shall be entitled to the
receipt of dividends or of amounts distributable upon dissolution, liquidation
or winding up of the Corporation, as the case may be, in preference or priority
to the holders of shares of this Series;
(b) on a parity with shares of this Series, either as to dividends or upon
liquidation, whether or not the dividend rates, dividend payment dates or
redemption or liquidation prices per share or sinking fund provisions, if any,
be different from those of this Series (and whether or not such dividends shall
accumulate), if the holders of such stock shall be entitled to the receipt of
dividends or of amounts distributable upon dissolution, liquidation or winding
up of the Corporation, as the case may be, without preference or priority, one
over the other, as between the holders of such stock and the holders of shares
of this Series; and
(c) junior to shares of this Series, either as to dividends or upon
liquidation, if such class shall be Common Stock or if the holders of shares of
this Series shall be entitled to receipt of dividends or of amounts
distributable upon dissolution, liquidation or winding up of the Corporation, as
the case may be, in preference or priority to the holders of shares of such
class or classes.
8. Voting Rights. The shares of this Series shall have the voting rights
set forth in the resolutions of the Board of Directors adopted on
_____________."
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IN WITNESS WHEREOF, The Chase Manhattan Corporation has caused its
corporate seal to be hereunto affixed and this Certificate to be signed by its
Corporate Secretary, [name], this ____ day of _______, 1998.
THE CHASE MANHATTAN CORPORATION
By:
--------------------------------
Corporate Secretary
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