EXHIBIT 4-b
CERTIFICATE OF DESIGNATION OF PREFERENCES AND RIGHTS
OF THE
________% CUMULATIVE PREFERRED STOCK
($200.00 Stated Value)
OF
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
_________________________
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
_________________________
The undersigned DOES HEREBY CERTIFY that the following
resolution was duly adopted by the Board of Directors (the "Board") of
Morgan Stanley, Dean Witter, Discover & Co., a Delaware corporation
(hereinafter called the "Corporation"), by unanimous written consent in
lieu of a meeting dated as of _______________, 199__, with certain of the
designations, preferences and rights having been fixed by the Pricing
Committee of the Board (the "Committee") [at a meeting] on _______________,
199__ pursuant to authority delegated to it by the Board pursuant to the
provisions of Section 141(c)(1) of the General Corporation Law of the State
of Delaware:
RESOLVED that, pursuant to authority expressly granted
to and vested in the Committee by the Board and in the Board by
provisions of the Restated Certificate of Incorporation of the
Corporation, as amended (the "Certificate of Incorporation"),
the issuance of a series of Preferred Stock, without par value
(the "Preferred Stock"), which shall consist of_______________
of the _______________ of Preferred Stock which the Corporation
now has authority to issue, is authorized, and the Board and
the Committee, pursuant to the authority expressly granted to
the Committee by the Board pursuant to the provisions of
Section 141(c)(1) of the General Corporation Law of the State
of Delaware and the Certificate of Incorporation, fix the
powers, designations, preferences and relative, participating,
optional or other special rights, and the qualifications,
limitations or restrictions thereof, of the shares of such
series (in addition to the powers, designations, preferences
and relative participating, optional or other special rights,
and the qualifications, limitations or restrictions thereof,
set forth in the Certificate of Incorporation which may be
applicable to the Preferred Stock) as follows:
1. Designation and Amount; Fractional Shares. The
designation for such series of the Preferred Stock authorized
by this resolution shall be the ______________ Cumulative
Preferred Stock, without par value, with a stated value of
$______ per share (the "Cumulative Preferred Stock"). The
stated value per share of the Cumulative Preferred Stock shall
not for any purpose be considered to be a determination by the
Board or the Committee with respect to the capital and surplus
of the Corporation. The number of shares of the Cumulative
Preferred Stock shall be __________ . The Cumulative Preferred
Stock is issuable in whole shares only.
2. Dividends. Holders of shares of the Cumulative
Preferred Stock will be entitled to receive, when, as and if
declared by the Board or the Committee out of assets of the
Corporation legally available for payment cash dividends at the
rate of __________% per annum. Dividends on the Cumulative
Preferred Stock will be payable quarterly on _________,
__________ ,__________ and __________ of each year (each a
"dividend payment date"). Dividends on shares of the
Cumulative Preferred Stock will be cumulative from the date of
initial issuance of such shares of the Cumulative Preferred
Stock. Dividends will be payable, in arrears, to holders of
record as they appear on the stock books of the Corporation on
such record dates, not more than 60 days nor less than 10 days
preceding the payment dates thereof, as shall be fixed by the
Board or the Committee. The amount of dividends payable for
the initial dividend period or any period shorter than a full
dividend period shall be calculated on the basis of a 360-day
year of twelve 30-day months. [Description of alternate method
of determining entitlement to and amount of dividends, and any
other terms of the Cumulative Preferred Stock.] No dividends
may be declared or paid or set apart for payment on any Parity
Preferred Stock (as defined in paragraph 9(b) below) with
regard to the payment of dividends unless there shall also be
or have been declared and paid or set apart for payment on the
Cumulative Preferred Stock, like dividends for all dividend
payment periods of the Cumulative Preferred Stock ending on or
before the dividend payment date of such Parity Preferred Stock
ratably in proportion to the respective amounts of dividends
(x) accumulated and unpaid or payable on such Parity Preferred
Stock, on the one hand, and (y) accumulated and unpaid through
the dividend payment period or periods of the Cumulative
Preferred Stock next preceding such dividend payment date, on
the other hand.
Except as set forth in the preceding sentence, unless
full cumulative dividends on the Cumulative Preferred Stock
have been paid, no dividends (other than in Common Stock of the
Corporation) may be paid or declared and set aside for payment
or other distribution made upon the Common Stock or on any
other stock of the Corporation ranking junior to or on a parity
with the Cumulative Preferred Stock as to dividends, nor may
any Common Stock or any other stock of the Corporation ranking
junior to or on a parity with the Cumulative Preferred Stock as
to dividends be redeemed, purchased or otherwise acquired for
any consideration (or any payment be made to or available for a
sinking fund for the redemption of any shares of such stock;
provided, however, that any moneys theretofore deposited in any
sinking fund with respect to any preferred stock of the
Corporation in compliance with the provisions of such sinking
fund may thereafter be applied to the purchase or redemption of
such preferred stock in accordance with the terms of such
sinking fund, regardless of whether at the time of such
application full cumulative dividends upon shares of the
Cumulative Preferred Stock outstanding to the last dividend
payment date shall have been paid or declared and set apart for
payment) by the Corporation; provided that any such junior or
parity Preferred Stock or Common Stock may be converted into or
exchanged for stock of the Corporation ranking junior to the
Cumulative Preferred Stock as to dividends.
3. Liquidation Preference. The shares of the
Cumulative Preferred Stock shall rank, as to liquidation,
dissolution or winding up of the Corporation, prior to the
shares of Common Stock and any other class of stock of the
Corporation ranking junior to the Cumulative Preferred Stock as
to rights upon liquidation, dissolution or winding up of the
Corporation, so that in the event of any liquidation,
dissolution or winding up of the Corporation, whether voluntary
or involuntary, the holders of the Cumulative Preferred Stock
shall be entitled to receive out of the assets of the
Corporation available for distribution to its stockholders,
whether from capital, surplus or earnings, before any
distribution is made to holders of shares of Common Stock or
any other such junior stock, an amount equal to $________ per
share (the "Liquidation Preference" of a share of the
Cumulative Preferred Stock) plus an amount equal to all
dividends (whether or not earned or declared) accrued and
accumulated and unpaid on the shares of the Cumulative
Preferred Stock to the date of final distribution. The holders
of the Cumulative Preferred Stock will not be entitled to
receive the Liquidation Preference until the liquidation
preference of any other class of stock of the Corporation
ranking senior to the Cumulative Preferred Stock as to rights
upon liquidation, dissolution or winding up shall have been
paid (or a sum set aside therefor sufficient to provide for
payment) in full. After payment of the full amount of the
Liquidation Preference and such dividends, the holders of
shares of the Cumulative Preferred Stock will not be entitled
to any further participation in any distribution of assets by
the Corporation. If, upon any liquidation, dissolution or
winding up of the Corporation, the assets of the Corporation,
or proceeds thereof, distributable among the holders of shares
of Parity Preferred Stock shall be insufficient to pay in full
the preferential amount aforesaid, then such assets, or the
proceeds thereof, shall be distributable among such holders
ratably in accordance with the respective amounts which would
be payable on such shares if all amounts payable thereon were
paid in full. For the purposes hereof, neither a consolidation
or merger of the Corporation with or into any other
corporation, nor a merger of any other corporation with or into
the Corporation, nor a sale or transfer of all or any part of
the Corporation's assets for cash or securities shall be
considered a liquidation, dissolution or winding up of the
Corporation.
4. Conversion. The Cumulative Preferred Stock is not
convertible into shares of any other class or series of stock
of the Corporation.
5. Voting Rights. The holders of shares of the
Cumulative Preferred Stock shall have no voting rights
whatsoever, except for any voting rights to which they may be
entitled under the laws of the State of Delaware, and except as
follows:
(a) Whenever, at any time or times, dividends
payable on the shares of Cumulative Preferred Stock or on
any Parity Preferred Stock with respect to payment of
dividends, shall be in arrears for an aggregate number of
days equal to six calendar quarters or more, whether or
not consecutive, the holders of the outstanding shares of
the Cumulative Preferred Stock shall have the right, with
holders of shares of any one or more other class or
series of stock upon which like voting rights have been
conferred and are exercisable (voting together as a
class), to elect two of the authorized number of members
of the Board at the Corporation's next annual meeting of
stockholders and at each subsequent annual meeting of
stockholders until such arrearages have been paid or set
apart for payment, at which time such right shall
terminate, except as herein or by law expressly provided,
subject to revesting in the event of each and every
subsequent default of the character above mentioned.
Upon any termination of the right of the holders of
shares of the Cumulative Preferred Stock as a class to
vote for directors as herein provided, the term of office
of all directors then in office elected by the holders of
shares of the Cumulative Preferred Stock shall terminate
immediately.
Any director who shall have been so elected pursuant to
this paragraph may be removed at any time, either with or
without cause. Any vacancy thereby created may be filled
only by the affirmative vote of the holders of shares of
the Cumulative Preferred Stock voting separately as a
class (together with the holders of shares of any other
class or series of stock upon which like voting rights
have been conferred and are exercisable). If the office
of any director elected by the holders of shares of the
Cumulative Preferred Stock voting as a class becomes
vacant for any reason other than removal from office as
aforesaid, the remaining director elected pursuant to
this paragraph may choose a successor who shall hold
office for the unexpired term in respect of which such
vacancy occurred. At elections for such directors, each
holder of shares of the Cumulative Preferred Stock shall
be entitled to one vote for each share held (the holders
of shares of any other class or series of preferred stock
having like voting rights being entitled to such number
of votes, if any, for each share of such stock held as
may be granted to them).
(b) So long as any shares of the Cumulative
Preferred Stock remain outstanding, the consent of the
holders of at least two-thirds of the shares of the
Cumulative Preferred Stock outstanding at the time and
all other classes or series of stock upon which like
voting rights have been conferred and are exercisable
(voting together as a class) given in person or by proxy,
either in writing or at any meeting called for the
purpose, shall be necessary to permit, effect or validate
any one or more of the following:
(i) the issuance or increase of the
authorized amount of any class or series of shares
ranking prior (as that term is defined in paragraph
9(a) hereof) to the shares of the Cumulative
Preferred Stock; or
(ii) the amendment, alteration or repeal,
whether by merger, consolidation or otherwise, of
any of the provisions of the Certificate of
Incorporation (including this resolution or any
provision hereof), that would materially and
adversely affect any power, preference, or special
right of the shares of the Cumulative Preferred
Stock or of the holders thereof;
provided, however, that any increase in the amount of
authorized Common Stock or authorized Preferred Stock or any
increase or decrease in the number of shares of any series
of Preferred Stock or the creation and issuance of other
series of Common Stock or Preferred Stock, in each case
ranking on a parity with or junior to the shares of the
Cumulative Preferred Stock with respect to the payment of
dividends and the distribution of assets upon liquidation,
dissolution or winding up, shall not be deemed to materially
and adversely affect such powers, preferences or special
rights.
(c) The foregoing voting provisions shall not
apply if, at or prior to the time when the act with
respect to which such vote would otherwise be required
shall be effected, all outstanding shares of the
Cumulative Preferred Stock shall have been redeemed or
called for redemption and sufficient funds shall have
been deposited in trust to effect such redemption.
6. Redemption. [Alternative 1] [The shares of the
Cumulative Preferred Stock may not be redeemed at any time.]
[Alternative 2] [The shares of the Cumulative Preferred Stock
may be redeemed at the option of the Corporation, as a whole,
or from time to time in part, at any time, upon not less than
30 days' prior notice mailed to the holders of the shares to be
redeemed at their addresses as shown on the stock books of the
Corporation; provided, however, that shares of the Cumulative
Preferred Stock shall not be redeemable prior to _________,
_________, [except as stated below]. Subject to the foregoing,
on or after such date, shares of the Cumulative Preferred Stock
are redeemable at $_________.00 per share together with an
amount equal to all dividends (whether or not earned or
declared) accrued and accumulated and unpaid to, but excluding,
the date fixed for redemption.]
If full cumulative dividends on the Cumulative Preferred Stock
have not been paid, the Cumulative Preferred Stock may not be redeemed in part
and the Corporation may not purchase or acquire any share of the Cumulative
Preferred Stock otherwise than pursuant to a purchase or exchange offer made
on the same terms to all holders of the Cumulative Preferred Stock. If fewer
than all the outstanding shares of the Cumulative Preferred Stock are to be
redeemed, the Corporation will select those to be redeemed by lot or a
substantially equivalent method.
If a notice of redemption has been given pursuant to this
paragraph 6 and if, on or before the date fixed for redemption, the funds
necessary for such redemption shall have been set aside by the Corporation,
separate and apart from its other funds, in trust for the pro rata benefit of
the holders of the shares of the Cumulative Preferred Stock so called for
redemption, then, notwithstanding that any certificates for such shares have
not been surrendered for cancellation, on the redemption date dividends shall
cease to accrue on the shares to be redeemed, and at the close of business on
the redemption date the holders of such shares shall cease to be stockholders
with respect to such shares and shall have no interest in or claims against
the Corporation by virtue thereof and shall have no voting or other rights
with respect to such shares, except the right to receive the moneys payable
upon surrender (and endorsement, if required by the Corporation) of their
certificates, and the shares evidenced thereby shall no longer be outstanding.
Subject to applicable escheat laws, any moneys so set aside by the Corporation
and unclaimed at the end of two years from the redemption date shall revert to
the general funds of the Corporation, after which reversion the holders of
such shares so called for redemption shall look only to the general funds of
the Corporation for the payment of the amounts payable upon such redemption.
Any interest accrued on funds so deposited shall be paid to the Corporation
from time to time.
[Alternative 3] [Describe provisions of any mandatory
redemption or sinking fund arrangements applicable to the Cumulative
Preferred Stock.]
7. Authorization and Issuance of Other Securities.
No consent of the holders of the Cumulative Preferred Stock
shall be required for (a) the creation of any indebtedness of
any kind of the Corporation, (b) the creation, or increase or
decrease in the amount, of any class or series of stock of the
Corporation not ranking prior as to dividends or upon
liquidation, dissolution or winding up to the Cumulative
Preferred Stock or (c) any increase or decrease in the amount
of authorized Common Stock or any increase, decrease or change
in the par value thereof or in any other terms thereof.
8. Amendment of Resolution. The Board and the
Committee each reserves the right by subsequent amendment of
this resolution from time to time to increase or decrease the
number of shares that constitute the Cumulative Preferred Stock
(but not below the number of shares thereof then outstanding)
and in other respects to amend this resolution within the
limitations provided by law, this resolution and the
Certificate of Incorporation.
9. Rank. For the purposes of this resolution, any
stock of any class or classes of the Corporation shall be
deemed to rank:
(a) prior to shares of the Cumulative Preferred
Stock, either as to dividends or upon liquidation,
dissolution or winding up, or both, if the holders of
stock of such class or classes shall be entitled by the
terms thereof to the receipt of dividends or of amounts
distributable upon liquidation, dissolution or winding
up, as the case may be, in preference or priority to the
holders of shares of the Cumulative Preferred Stock;
(b) on a parity with shares of the Cumulative
Preferred Stock, either as to dividends or upon
liquidation, dissolution or winding up, or both, whether
or not the dividend rates, dividend payment dates, or
redemption or liquidation prices per share thereof be
different from those of the Cumulative Preferred Stock,
if the holders of stock of such class or classes shall be
entitled by the terms thereof to the receipt of dividends
or of amounts distributed upon liquidation, dissolution
or winding up, as the case may be, in proportion to their
respective dividend rates or liquidation prices, without
preference or priority of one over the other as between
the holders of such stock and the holders of shares of
the Cumulative Preferred Stock (the term "Parity
Preferred Stock" being used to refer to any stock on a
parity with the shares of the Cumulative Preferred Stock,
either as to dividends or upon liquidation, dissolution
or winding up, or both, as the context may require); and
(c) junior to shares of the Cumulative Preferred
Stock, either as to dividends or upon liquidation,
dissolution or winding up, or both, if such class shall
be Common Stock or if the holders of the Cumulative
Preferred Stock shall be entitled to the receipt of
dividends or of amounts distributable upon liquidation,
dissolution or winding up, as the case may be, in
preference or priority to the holders of stock of such
class or classes.
The Cumulative Preferred Stock shall rank prior, as to
dividends and upon liquidation, dissolution or winding up, to the Common
Stock and on a parity with (i) the Corporation's ESOP Convertible Preferred
Stock, with a liquidation value of $35.88 per share, (ii) the Corporation's
9.36% Cumulative Preferred Stock, with a liquidation value of $25.00 per
share, (iii) the Corporation's 8.88% Cumulative Preferred Stock, with a
liquidation value of $200.00 per share, (iv) the Corporation's 8-3/4% Cumulative
Preferred Stock, with a liquidation value of $200.00 per share, (v) the
Corporation's 7-3/8% Cumulative Preferred Stock, with a liquidation value
of $200.00 per share, (vi) if issued, the Corporation's 7.82% Cumulative
Preferred Stock, with a liquidation value of $200.00 per share, (vii) if issued,
the Corporation's 7.80% Cumulative Preferred Stock, with a liquidation
value of $200.00 per share, (viii) if issued, the Corporation's 9.00% Cumulative
Preferred Stock, with a liquidation value of $200.00 per share, (ix) if issued,
the Corporation's 8.40% Cumulative Preferred Stock, with a liquidation
value of $200.00 per share, (x) if issued, the Corporation's 8.20% Cumulative
Preferred Stock, with a liquidation value of $200.00 per share (xi) the
Corporation's 7-3/4% Cumulative Preferred Stock, with a liquidation value
of $200.00 per share and (xii) the Corporation's Series A Fixed/Adjustable Rate
Cumulative Preferred Stock, with a liquidation value of $200.00 per share
[insert other outstanding series of preferred stock as applicable].
IN WITNESS WHEREOF, Morgan Stanley, Dean Witter, Discover & Co.
caused this Certificate to be made under the seal of the Corporation and
signed by _______________________________, its ________________________,
and attested by_______________________________,
[Assistant Secretary] of the Corporation, this _______________________________
_______________ day of ______________, 199___.
.
MORGAN STANLEY
DEAN WITTER, DISCOVER & CO.
By:_________________________
Name: __________________
Title: __________________
[SEAL]
Attest:
__________________________
[Assistant Secretary]
CERTIFICATE OF DESIGNATION OF PREFERENCES AND RIGHTS
OF THE
________% CUMULATIVE PREFERRED STOCK
($200.00 Stated Value)
OF
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
_________________________
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
_________________________
The undersigned DOES HEREBY CERTIFY that the following
resolution was duly adopted by the Board of Directors (the "Board") of
Morgan Stanley, Dean Witter, Discover & Co., a Delaware corporation
(hereinafter called the "Corporation"), by unanimous written consent in
lieu of a meeting dated as of _______________, 199__, with certain of the
designations, preferences and rights having been fixed by the Pricing
Committee of the Board (the "Committee") [at a meeting] on _______________,
199__ pursuant to authority delegated to it by the Board pursuant to the
provisions of Section 141(c)(1) of the General Corporation Law of the State
of Delaware:
RESOLVED that, pursuant to authority expressly granted
to and vested in the Committee by the Board and in the Board by
provisions of the Restated Certificate of Incorporation of the
Corporation, as amended (the "Certificate of Incorporation"),
the issuance of a series of Preferred Stock, without par value
(the "Preferred Stock"), which shall consist of_______________
of the _______________ of Preferred Stock which the Corporation
now has authority to issue, is authorized, and the Board and
the Committee, pursuant to the authority expressly granted to
the Committee by the Board pursuant to the provisions of
Section 141(c)(1) of the General Corporation Law of the State
of Delaware and the Certificate of Incorporation, fix the
powers, designations, preferences and relative, participating,
optional or other special rights, and the qualifications,
limitations or restrictions thereof, of the shares of such
series (in addition to the powers, designations, preferences
and relative participating, optional or other special rights,
and the qualifications, limitations or restrictions thereof,
set forth in the Certificate of Incorporation which may be
applicable to the Preferred Stock) as follows:
1. Designation and Amount; Fractional Shares. The
designation for such series of the Preferred Stock authorized
by this resolution shall be the ______________ Cumulative
Preferred Stock, without par value, with a stated value of
$______ per share (the "Cumulative Preferred Stock"). The
stated value per share of the Cumulative Preferred Stock shall
not for any purpose be considered to be a determination by the
Board or the Committee with respect to the capital and surplus
of the Corporation. The number of shares of the Cumulative
Preferred Stock shall be __________ . The Cumulative Preferred
Stock is issuable in whole shares only.
2. Dividends. Holders of shares of the Cumulative
Preferred Stock will be entitled to receive, when, as and if
declared by the Board or the Committee out of assets of the
Corporation legally available for payment cash dividends at the
rate of __________% per annum. Dividends on the Cumulative
Preferred Stock will be payable quarterly on _________,
__________ ,__________ and __________ of each year (each a
"dividend payment date"). Dividends on shares of the
Cumulative Preferred Stock will be cumulative from the date of
initial issuance of such shares of the Cumulative Preferred
Stock. Dividends will be payable, in arrears, to holders of
record as they appear on the stock books of the Corporation on
such record dates, not more than 60 days nor less than 10 days
preceding the payment dates thereof, as shall be fixed by the
Board or the Committee. The amount of dividends payable for
the initial dividend period or any period shorter than a full
dividend period shall be calculated on the basis of a 360-day
year of twelve 30-day months. [Description of alternate method
of determining entitlement to and amount of dividends, and any
other terms of the Cumulative Preferred Stock.] No dividends
may be declared or paid or set apart for payment on any Parity
Preferred Stock (as defined in paragraph 9(b) below) with
regard to the payment of dividends unless there shall also be
or have been declared and paid or set apart for payment on the
Cumulative Preferred Stock, like dividends for all dividend
payment periods of the Cumulative Preferred Stock ending on or
before the dividend payment date of such Parity Preferred Stock
ratably in proportion to the respective amounts of dividends
(x) accumulated and unpaid or payable on such Parity Preferred
Stock, on the one hand, and (y) accumulated and unpaid through
the dividend payment period or periods of the Cumulative
Preferred Stock next preceding such dividend payment date, on
the other hand.
Except as set forth in the preceding sentence, unless
full cumulative dividends on the Cumulative Preferred Stock
have been paid, no dividends (other than in Common Stock of the
Corporation) may be paid or declared and set aside for payment
or other distribution made upon the Common Stock or on any
other stock of the Corporation ranking junior to or on a parity
with the Cumulative Preferred Stock as to dividends, nor may
any Common Stock or any other stock of the Corporation ranking
junior to or on a parity with the Cumulative Preferred Stock as
to dividends be redeemed, purchased or otherwise acquired for
any consideration (or any payment be made to or available for a
sinking fund for the redemption of any shares of such stock;
provided, however, that any moneys theretofore deposited in any
sinking fund with respect to any preferred stock of the
Corporation in compliance with the provisions of such sinking
fund may thereafter be applied to the purchase or redemption of
such preferred stock in accordance with the terms of such
sinking fund, regardless of whether at the time of such
application full cumulative dividends upon shares of the
Cumulative Preferred Stock outstanding to the last dividend
payment date shall have been paid or declared and set apart for
payment) by the Corporation; provided that any such junior or
parity Preferred Stock or Common Stock may be converted into or
exchanged for stock of the Corporation ranking junior to the
Cumulative Preferred Stock as to dividends.
3. Liquidation Preference. The shares of the
Cumulative Preferred Stock shall rank, as to liquidation,
dissolution or winding up of the Corporation, prior to the
shares of Common Stock and any other class of stock of the
Corporation ranking junior to the Cumulative Preferred Stock as
to rights upon liquidation, dissolution or winding up of the
Corporation, so that in the event of any liquidation,
dissolution or winding up of the Corporation, whether voluntary
or involuntary, the holders of the Cumulative Preferred Stock
shall be entitled to receive out of the assets of the
Corporation available for distribution to its stockholders,
whether from capital, surplus or earnings, before any
distribution is made to holders of shares of Common Stock or
any other such junior stock, an amount equal to $________ per
share (the "Liquidation Preference" of a share of the
Cumulative Preferred Stock) plus an amount equal to all
dividends (whether or not earned or declared) accrued and
accumulated and unpaid on the shares of the Cumulative
Preferred Stock to the date of final distribution. The holders
of the Cumulative Preferred Stock will not be entitled to
receive the Liquidation Preference until the liquidation
preference of any other class of stock of the Corporation
ranking senior to the Cumulative Preferred Stock as to rights
upon liquidation, dissolution or winding up shall have been
paid (or a sum set aside therefor sufficient to provide for
payment) in full. After payment of the full amount of the
Liquidation Preference and such dividends, the holders of
shares of the Cumulative Preferred Stock will not be entitled
to any further participation in any distribution of assets by
the Corporation. If, upon any liquidation, dissolution or
winding up of the Corporation, the assets of the Corporation,
or proceeds thereof, distributable among the holders of shares
of Parity Preferred Stock shall be insufficient to pay in full
the preferential amount aforesaid, then such assets, or the
proceeds thereof, shall be distributable among such holders
ratably in accordance with the respective amounts which would
be payable on such shares if all amounts payable thereon were
paid in full. For the purposes hereof, neither a consolidation
or merger of the Corporation with or into any other
corporation, nor a merger of any other corporation with or into
the Corporation, nor a sale or transfer of all or any part of
the Corporation's assets for cash or securities shall be
considered a liquidation, dissolution or winding up of the
Corporation.
4. Conversion. The Cumulative Preferred Stock is not
convertible into shares of any other class or series of stock
of the Corporation.
5. Voting Rights. The holders of shares of the
Cumulative Preferred Stock shall have no voting rights
whatsoever, except for any voting rights to which they may be
entitled under the laws of the State of Delaware, and except as
follows:
(a) Whenever, at any time or times, dividends
payable on the shares of Cumulative Preferred Stock or on
any Parity Preferred Stock with respect to payment of
dividends, shall be in arrears for an aggregate number of
days equal to six calendar quarters or more, whether or
not consecutive, the holders of the outstanding shares of
the Cumulative Preferred Stock shall have the right, with
holders of shares of any one or more other class or
series of stock upon which like voting rights have been
conferred and are exercisable (voting together as a
class), to elect two of the authorized number of members
of the Board at the Corporation's next annual meeting of
stockholders and at each subsequent annual meeting of
stockholders until such arrearages have been paid or set
apart for payment, at which time such right shall
terminate, except as herein or by law expressly provided,
subject to revesting in the event of each and every
subsequent default of the character above mentioned.
Upon any termination of the right of the holders of
shares of the Cumulative Preferred Stock as a class to
vote for directors as herein provided, the term of office
of all directors then in office elected by the holders of
shares of the Cumulative Preferred Stock shall terminate
immediately.
Any director who shall have been so elected pursuant to
this paragraph may be removed at any time, either with or
without cause. Any vacancy thereby created may be filled
only by the affirmative vote of the holders of shares of
the Cumulative Preferred Stock voting separately as a
class (together with the holders of shares of any other
class or series of stock upon which like voting rights
have been conferred and are exercisable). If the office
of any director elected by the holders of shares of the
Cumulative Preferred Stock voting as a class becomes
vacant for any reason other than removal from office as
aforesaid, the remaining director elected pursuant to
this paragraph may choose a successor who shall hold
office for the unexpired term in respect of which such
vacancy occurred. At elections for such directors, each
holder of shares of the Cumulative Preferred Stock shall
be entitled to one vote for each share held (the holders
of shares of any other class or series of preferred stock
having like voting rights being entitled to such number
of votes, if any, for each share of such stock held as
may be granted to them).
(b) So long as any shares of the Cumulative
Preferred Stock remain outstanding, the consent of the
holders of at least two-thirds of the shares of the
Cumulative Preferred Stock outstanding at the time and
all other classes or series of stock upon which like
voting rights have been conferred and are exercisable
(voting together as a class) given in person or by proxy,
either in writing or at any meeting called for the
purpose, shall be necessary to permit, effect or validate
any one or more of the following:
(i) the issuance or increase of the
authorized amount of any class or series of shares
ranking prior (as that term is defined in paragraph
9(a) hereof) to the shares of the Cumulative
Preferred Stock; or
(ii) the amendment, alteration or repeal,
whether by merger, consolidation or otherwise, of
any of the provisions of the Certificate of
Incorporation (including this resolution or any
provision hereof), that would materially and
adversely affect any power, preference, or special
right of the shares of the Cumulative Preferred
Stock or of the holders thereof;
provided, however, that any increase in the amount of
authorized Common Stock or authorized Preferred Stock or any
increase or decrease in the number of shares of any series
of Preferred Stock or the creation and issuance of other
series of Common Stock or Preferred Stock, in each case
ranking on a parity with or junior to the shares of the
Cumulative Preferred Stock with respect to the payment of
dividends and the distribution of assets upon liquidation,
dissolution or winding up, shall not be deemed to materially
and adversely affect such powers, preferences or special
rights.
(c) The foregoing voting provisions shall not
apply if, at or prior to the time when the act with
respect to which such vote would otherwise be required
shall be effected, all outstanding shares of the
Cumulative Preferred Stock shall have been redeemed or
called for redemption and sufficient funds shall have
been deposited in trust to effect such redemption.
6. Redemption. [Alternative 1] [The shares of the
Cumulative Preferred Stock may not be redeemed at any time.]
[Alternative 2] [The shares of the Cumulative Preferred Stock
may be redeemed at the option of the Corporation, as a whole,
or from time to time in part, at any time, upon not less than
30 days' prior notice mailed to the holders of the shares to be
redeemed at their addresses as shown on the stock books of the
Corporation; provided, however, that shares of the Cumulative
Preferred Stock shall not be redeemable prior to _________,
_________, [except as stated below]. Subject to the foregoing,
on or after such date, shares of the Cumulative Preferred Stock
are redeemable at $_________.00 per share together with an
amount equal to all dividends (whether or not earned or
declared) accrued and accumulated and unpaid to, but excluding,
the date fixed for redemption.]
If full cumulative dividends on the Cumulative Preferred Stock
have not been paid, the Cumulative Preferred Stock may not be redeemed in part
and the Corporation may not purchase or acquire any share of the Cumulative
Preferred Stock otherwise than pursuant to a purchase or exchange offer made
on the same terms to all holders of the Cumulative Preferred Stock. If fewer
than all the outstanding shares of the Cumulative Preferred Stock are to be
redeemed, the Corporation will select those to be redeemed by lot or a
substantially equivalent method.
If a notice of redemption has been given pursuant to this
paragraph 6 and if, on or before the date fixed for redemption, the funds
necessary for such redemption shall have been set aside by the Corporation,
separate and apart from its other funds, in trust for the pro rata benefit of
the holders of the shares of the Cumulative Preferred Stock so called for
redemption, then, notwithstanding that any certificates for such shares have
not been surrendered for cancellation, on the redemption date dividends shall
cease to accrue on the shares to be redeemed, and at the close of business on
the redemption date the holders of such shares shall cease to be stockholders
with respect to such shares and shall have no interest in or claims against
the Corporation by virtue thereof and shall have no voting or other rights
with respect to such shares, except the right to receive the moneys payable
upon surrender (and endorsement, if required by the Corporation) of their
certificates, and the shares evidenced thereby shall no longer be outstanding.
Subject to applicable escheat laws, any moneys so set aside by the Corporation
and unclaimed at the end of two years from the redemption date shall revert to
the general funds of the Corporation, after which reversion the holders of
such shares so called for redemption shall look only to the general funds of
the Corporation for the payment of the amounts payable upon such redemption.
Any interest accrued on funds so deposited shall be paid to the Corporation
from time to time.
[Alternative 3] [Describe provisions of any mandatory
redemption or sinking fund arrangements applicable to the Cumulative
Preferred Stock.]
7. Authorization and Issuance of Other Securities.
No consent of the holders of the Cumulative Preferred Stock
shall be required for (a) the creation of any indebtedness of
any kind of the Corporation, (b) the creation, or increase or
decrease in the amount, of any class or series of stock of the
Corporation not ranking prior as to dividends or upon
liquidation, dissolution or winding up to the Cumulative
Preferred Stock or (c) any increase or decrease in the amount
of authorized Common Stock or any increase, decrease or change
in the par value thereof or in any other terms thereof.
8. Amendment of Resolution. The Board and the
Committee each reserves the right by subsequent amendment of
this resolution from time to time to increase or decrease the
number of shares that constitute the Cumulative Preferred Stock
(but not below the number of shares thereof then outstanding)
and in other respects to amend this resolution within the
limitations provided by law, this resolution and the
Certificate of Incorporation.
9. Rank. For the purposes of this resolution, any
stock of any class or classes of the Corporation shall be
deemed to rank:
(a) prior to shares of the Cumulative Preferred
Stock, either as to dividends or upon liquidation,
dissolution or winding up, or both, if the holders of
stock of such class or classes shall be entitled by the
terms thereof to the receipt of dividends or of amounts
distributable upon liquidation, dissolution or winding
up, as the case may be, in preference or priority to the
holders of shares of the Cumulative Preferred Stock;
(b) on a parity with shares of the Cumulative
Preferred Stock, either as to dividends or upon
liquidation, dissolution or winding up, or both, whether
or not the dividend rates, dividend payment dates, or
redemption or liquidation prices per share thereof be
different from those of the Cumulative Preferred Stock,
if the holders of stock of such class or classes shall be
entitled by the terms thereof to the receipt of dividends
or of amounts distributed upon liquidation, dissolution
or winding up, as the case may be, in proportion to their
respective dividend rates or liquidation prices, without
preference or priority of one over the other as between
the holders of such stock and the holders of shares of
the Cumulative Preferred Stock (the term "Parity
Preferred Stock" being used to refer to any stock on a
parity with the shares of the Cumulative Preferred Stock,
either as to dividends or upon liquidation, dissolution
or winding up, or both, as the context may require); and
(c) junior to shares of the Cumulative Preferred
Stock, either as to dividends or upon liquidation,
dissolution or winding up, or both, if such class shall
be Common Stock or if the holders of the Cumulative
Preferred Stock shall be entitled to the receipt of
dividends or of amounts distributable upon liquidation,
dissolution or winding up, as the case may be, in
preference or priority to the holders of stock of such
class or classes.
The Cumulative Preferred Stock shall rank prior, as to
dividends and upon liquidation, dissolution or winding up, to the Common
Stock and on a parity with (i) the Corporation's ESOP Convertible Preferred
Stock, with a liquidation value of $35.88 per share, (ii) the Corporation's
9.36% Cumulative Preferred Stock, with a liquidation value of $25.00 per
share, (iii) the Corporation's 8.88% Cumulative Preferred Stock, with a
liquidation value of $200.00 per share, (iv) the Corporation's 8-3/4% Cumulative
Preferred Stock, with a liquidation value of $200.00 per share, (v) the
Corporation's 7-3/8% Cumulative Preferred Stock, with a liquidation value
of $200.00 per share, (vi) if issued, the Corporation's 7.82% Cumulative
Preferred Stock, with a liquidation value of $200.00 per share, (vii) if issued,
the Corporation's 7.80% Cumulative Preferred Stock, with a liquidation
value of $200.00 per share, (viii) if issued, the Corporation's 9.00% Cumulative
Preferred Stock, with a liquidation value of $200.00 per share, (ix) if issued,
the Corporation's 8.40% Cumulative Preferred Stock, with a liquidation
value of $200.00 per share, (x) if issued, the Corporation's 8.20% Cumulative
Preferred Stock, with a liquidation value of $200.00 per share (xi) the
Corporation's 7-3/4% Cumulative Preferred Stock, with a liquidation value
of $200.00 per share and (xii) the Corporation's Series A Fixed/Adjustable Rate
Cumulative Preferred Stock, with a liquidation value of $200.00 per share
[insert other outstanding series of preferred stock as applicable].
IN WITNESS WHEREOF, Morgan Stanley, Dean Witter, Discover & Co.
caused this Certificate to be made under the seal of the Corporation and
signed by _______________________________, its ________________________,
and attested by_______________________________,
[Assistant Secretary] of the Corporation, this _______________________________
_______________ day of ______________, 199___.
.
MORGAN STANLEY
DEAN WITTER, DISCOVER & CO.
By:_________________________
Name: __________________
Title: __________________
[SEAL]
Attest:
__________________________
[Assistant Secretary]