PROPOSED AMENDMENT OF CERTIFICATE OF INCORPORATION
Background
The Company currently has 265,000,000 authorized shares of stock, consisting of 250,000,000
shares of Common Stock and 15,000,000 shares of cumulative preference stock, par value $1 per
share ("Preference Stock"). Two series of Preference Stock have been designated and are
described below. In these two series, an aggregate of 7,379,394 shares of Preference Stock were
either reserved or outstanding as of the record date for the Meeting, leaving only 7,620,606
shares of Preference Stock unreserved or unissued.
The proposed amendment of the Certificate of Incorporation ("Proposal") would increase the
number of authorized shares of all classes of stock from 265,000,000 to 280,000,000 by creating
a new class of 15,000,000 shares of preferred stock, par value $1 per share ("Preferred Stock").
Preferred Stock will rank, as to dividends and upon liquidation, dissolution or winding up, (i)
junior and subordinate to Preference Stock and (ii) prior to Common Stock.
The holders of Preferred Stock will have no voting rights except as required by law or by
applicable stock exchange rules.
The Proposal
The Company's Certificate of Incorporation shall be amended in the following respects:
The first sentence of Article FOURTH shall be amended to read as follows: The total number of shares of all classes of stock which the Corporation shall have authority to issue is 280,000,000, consisting of (i) 250,000,000 shares of common
stock having a par value of $1 per share, (ii) 15,000,000 shares of Cumulative
Preference Stock (hereinafter called "Preference Stock") having a par value of $1
per share, and (iii) 15,000,000 shares of Preferred Stock (hereinafter called
"Preferred Stock") having a par value of $1 per share.
Article FOURTH shall be amended by adding a new subdivision entitled "Preferred
Stock" which authorizes the Board of Directors to divide any or all of the authorized
shares of Preferred Stock into series and, within the limitations provided by law and that
Article, to fix and determine the powers, designations, preferences and relative,
participating, optional or other rights, if any, and the qualifications, limitations or
restrictions thereof, if any, of each such series.
Paragraph 13 of Article FOURTH, which contains certain definitions for purposes of that
Article, shall be amended by adding a new subparagraph (d) to clarify the usage of cross-
references within that Article after the amendment adding the new class of Preferred
Stock.
The last sentence of Article FOURTH, which currently denies preemptive rights to the
holders of Preference Stock and Common Stock, shall be amended to provide that
preemptive rights are similarly denied for the new class of Preferred Stock.
The full text of Article FOURTH as proposed to be amended is attached as Exhibit I to this
Proxy Statement.
A Restated Certificate of Incorporation reflecting the foregoing amendments shall be filed with
the Secretary of State of the State of Delaware effective on such date during 1992 as the Board of
Directors shall designate after the adoption of the Proposal by stockholders.
Explanation of Proposal
The Certificate of incorporation currently authorizes the Company to issue up to 250,000,000
shares of Common Stock and up to 15,000,000 shares of Preference Stock. The Proposal would
increase the total number of authorized shares of stock of the Company by the creation of a new
class of 15,000,000 shares of Preferred Stock.
The holders of shares of Preferred Stock would not be entitled to any voting rights except as
provided by statute or as may be required by applicable rules or policies of any exchange on
which the Common Stock of the Company is listed or the Preferred Stock is proposed to be
listed.
As currently in effect, the rules of the New York Stock Exchange provide that, as a prerequisite
to listing, preferred stock must have certain minimum voting rights: The preferred stock, voting
as a class, should have the right to elect a minimum of two directors upon the default of the
equivalent of six quarterly dividends. The right to elect directors should remain in effect until
cumulative dividends have been paid in full or until non-cumulative dividends have been paid
regularly for at least a year. In addition, the approval of at least two-thirds of outstanding shares
of preferred stock is required for the creation of a senior equity security or the adoption of any
amendment of the Certificate of Incorporation or Bylaws that would materially affect existing
terms of the preferred stock; and the approval by a majority of the holders of outstanding shares
of a class of preferred stock is required for an increase in the authorized amount of preferred
stock of that class or the creation of a class of stock ranking pari passu with that class.
The Board of Directors would have authority to determine, among other things, with respect to
each series of the new class of Preferred Stock that may be created and issued: (i) the distinctive
designation of such series and the number of shares constituting such series, (ii) the dividends, if
any, payable on such series, whether any such dividends shall be cumulative and, if so, from
what dates, the conditions and dates upon which such dividends shall be payble, and the
preference or relation which such dividends shall bear to the dividends payable on any shares of
stock of any other class or any other series of Preferred Stock, (iii) whether the shares of such
series can be redeemed by the Company and, if so, the redemption price and the terms and
conditions of redemption, (iv) the amount payable upon shares of such series, and the rights of
the holders of such shares, in the event of any voluntary or involuntary liquidation, (v) retirement
or sinking fund provisions, if any, for the redemption or purchase of shares, and (vi) whether the
shares of such series shall be convertible into, or exchangeable for, shares of stock of any other
class or any other series of Preferred Stock or any other securities and, if so, the terms and
conditions thereof.
The purpose of the Proposal is to give the Board of Directors increased flexibility in managing
the capital structure of the Company.
Although the Preferred Stock will rank, as to dividends and upon liquidation, dissolution or
winding up, junior and subordinate to Preference Stock, the Board of Directors would be
authorized to prescribe the terms and conditions of the conversion of the Preferred Stock into, or
the exchange thereof for, other Company securities without certain restrictions that currently
apply to Preference Stock. The currently authorized Preference Stock is convertible only into
Common Stock and on the basis of a maximum of one share of Common Stock per share of
Preference Stock. Shares of Preferred Stock issuable after adoption of the Proposal would not be
subject to these restrictions on the Preference Stock.
At present, the Company has no plans, agreements or understandings for issuing the shares of
Preferred Stock authorized by the Proposal. However, the Company may decide to access the
public or private capital markets in the future through the issuance of Preferred Stock or other
securities. Accordingly, the Board of Directors believes the Proposal is necessary to provide a
sufficient aggregate number of authorized and unissued shares of Preferred Stock and Preference
Stock for these and other appropriate corporate purposes.
The shares of Preferred Stock authorized by the Proposal, as well as the authorized and unissued
shares of Preference Stock, could be issued by the Company without further stockholder
approval from time to time, on such terms and conditions as the Board of Directors may
determine subject to the specific provisions of the amended Certificate of Incorporation. The
terms of any series of Preferred Stock or Preference Stock created by resolution of the Board of
Directors in the future will largely depend on market conditions and other factors existing at the
time of issuance.
The Proposal is not designed to have an anti-takeover effect. As described above, holders of
Preferred Stock would not be entitled to any voting rights except as may be required by statute or
applicable stock exchange rules. The Company is unaware of any effort by any party to
accumulate stock for the purpose of obtaining control of the Company, and accordingly, the
Proposal is not the result of such an effort if one exists. Moreover, the Board of Directors does
not presently intend to propose any other amendment of the Certificate of Incorporation which
might inhibit the ability of any party to obtain control of the Company.
Required Vote on Proposal
Under the Certificate of Incorporation and the Delaware General Corporation Law, adoption of
the Proposal requires the affirmative vote of a majority of the outstanding shares of Common
Stock entitled to vote thereon.
Recommendation
On March 5, 1992, the Board of Directors unanimously approved the Proposal and recommends
that the stockholders vote FOR the Proposal.
Description of Preference Stock Generally
The following summary description of the Preference Stock as currently authorized in the
Certificate of Incorporation does not purport to be complete and is qualified in its entirety by
reference to Article FOURTH of the Certificate of Incorporation, attached hereto as Exhibit 1.
The Board of Directors is authorized by the Certificate of Incorporation to issue Preference Stock
in one or more series and to fix for each such series qualifications, privileges, limita tions,
options, conversion rights and other special rights, including the designation and number of
shares issuable, the dividend rate, voting rights (not to exceed one vote per share), conversion
rights (only into Common Stock and not to exceed one share of Common Stock for each share of
Preference Stock), redemption and sinking fund provisions, and liquidation values.
Holders of Preference Stock are entitled to receive, when and as declared by the Board of
Directors out of assets legally available for that purpose, annual cumulative dividends payable in
quarterly installments. Subject to certain exceptions, unless full cumulative dividends on the
Preference Stock have been paid, no dividend or other distribution may be declared or paid on
Common Stock, nor may any Preference Stock or Common Stock be redeemed or purchased by
the Company.
If the Company fails to pay the equivalent of six quarterly dividends on Preference Stock, the
number of directors of the Company may be increased by two. The additional directors will be
selected by the holders of the Preference Stock, voting as a class, until all dividends in arrears
have been paid or declared and set apart for payment. At that time, the additional directors will
cease to serve and the number of directors will decrease by two.
The affirmative vote or consent of at least two-thirds of the outstanding Preference Stock is
required for the Company to alter or change certain preferences or rights, or to create any class of
stock ranking prior to or on a parity with the Preference Stock, or to increase the number of
authorized shares of Preference Stock.
Subject to certain conditions, the Company may redeem all or any part of the Preference Stock
then outstanding.
None of the provisions of the Certificate of Incorporation relating to the Preference Stock will be
changed by the Proposal.
Series A Preference Stock
On September 12, 1990, a Certificate of Designation, Preferences and Rights was filed with the
Secretary of State of Delaware for Series A Junior Cumulative Preference Stock ("Series A
Preference Stock"). The following description of the Series A Preference Stock is qualified in its
entirety by reference to that Certificate, a copy of which is included in this Proxy Statement as
Exhibit 11.
The purpose of Series A Preference Stock is to partially implement a Shareholder Rights Plan
adopted by the Board of Directors on September 11. 1990. Series A Preference Stock is
comprised of 120,000 shares, none of which has been issued.
Under the Shareholder Rights Plan, stockholders of record on September 28, 1990 received a
dividend of one "Right" for each share of Common Stock owned. Each Right entitles the holder
to purchase from the Company a "Unit" consisting of one one-thousandth of a share of Series A
Preference Stock at a purchase price of $150 per Unit. A more complete description of the
Shareholder Rights Plan may be found in the Form 8-A Registration Statement filed by the
Company with the Securities and Exchange Commission on September 19, 1990.
None of the preferences or rights of Series A Preference Stock will be affected by the Proposal.
Series B Preference Stock
On September 11, 1990, a Certificate of Designation, Preferences and Rights was filed with the
Secretary of State of Delaware for Series B Junior Cumulative Convertible Preference Stock
("Series B Preference Stock"). A copy of that Certificate is included in this Proxy Statement as
Exhibit 111.
On September 11, 1990, the Company issued 7,259,394 shares of Series B Preference Stock (out
of 10,000,000 shares originally comprising the series) to an agent of The Glenmede Trust
Company ("Glenmede") as trustee for various charitable trusts, as part of a larger repurchase of
all of the Common Stock held by Glenmede for those charitable trusts. Since only 7,259,394
shares of Series B Preference Stock were actually issued, the original Certificate was amended
on March 5, 1992, to reduce the number of shares comprising the Series to 7,259,394. The
amendment is included as part of Exhibit III to this Proxy Statement.
The following summary of the dividend and conversion features of Series B Preference Stock is
qualified in its entirety by reference to Exhibit 111.
For the first twenty quarters following issuance of the Series B Preference Stock, if the original
holder continues to own it, the dividend exceeds the dividend payable on Common Stock.
Initially, the differential was 17.5 cents per share, but the differential declines over time until the
twenty-first quarter when it becomes zero. For the most recent quarterly dividend payable on
Series B Preference Stock on March 31, 1992, the differential was 12.5 cents per share.
Series B Preference Stock is non-voting, except in certain cases specified in the Certificate of
Incorporation or by law, and it is convertible into Common Stock on a share-for-share basis by
the holder thereof subject to certain restrictions. After September 10, 1995, if the original holder
of the Series B Preference Stock still owns it, those shares may be converted into Common Stock
on a share-for-share basis by the holder thereof without the restrictions that applied on or before
that date.
None of the preferences or rights of Series B Preference Stock will be affected by the Proposal.
EXHIBIT I
AMENDED AND RESTATED ARTICLE FOURTH OF
THE CERTIFICATE OF INCORPORATION OF ORYX ENERGY COMPANY Material to be added by the Proposal
is in italics, and material to be
deleted by the Proposal is in brackets
FOURTH: The total number of shares of all classes of stock which the [corporation] Corporation
shall have authority to issue is 280,000,000, consisting of (i) 250,000,000 shares of common
stock having a par value of $1 per share [and), (ii) 15,000,000 shares of Cumulative Preference
Stock (hereinafter called "Preference Stock") having a par value of $1 pershare, and (iii)
15,000,000 shares of Preferred Stock (hereinafter called "Preferred Stock') having a par value of
$1 per share.
Preference Stock
1. Authority of Board of Directors. Authority is hereby vested in the Board of Directors to divide
any or all of the authorized shares of Preference Stock into series and, within the limitations
provided by law and this Article FOURTH, to fix and determine the designations, preferences,
qualifications, privileges, limitations, options, conversion rights, and other special rights of each
such series, including but not limited to the right to fix and determine: (a) the designation of and the number of shares issuable in each such series;
(b) the annual dividend rate, expressed in a dollar amount per share, for each such series;
(c) the right, if any, of the Corporation to redeem shares, of any such series, and the terms
and conditions on which shares of each such series may be redeemed;
(d) the amounts payable upon shares of each such series in the event of the voluntary or
involuntary liquidation, dissolution or winding up of the Corporation;
(e) the sinking fund provisions, if any, for the redemption or purchase of shares of each
such series;
(f) the voting rights, if any, for the shares of each such series; provided, however, that the
number of votes per share of Preference Stock shall in no event exceed one (1);
(g) the terms and conditions, if any, on which shares of each such series may be
converted into shares of stock of this Corporation; provided, however, that shares of
Preference Stock shall not be convertible into shares of any class of stock of the
Corporation other than Common Stock and shall not be convertible into more than one
share of Common Stock, or such greater or lesser number as will reflect the effect of
stock dividends, stock splits or stock combinations affecting Common Stock, subject to
such terms and conditions, including provision for fractional shares, as the Board of
Directors shall authorize; and
(h) any and all such other provisions as may be fixed or determined by the Board of
Directors of the Corporation pursuant to Delaware law.
2. Parity of Series of Preference Stock and Shares Within Series; Priority of Preference Stock.
All shares of the same series of Preference Stock shall be identical with each other share of such
series in all respects, except that shares of any one series issued at different times may differ as
to the dates from which dividends thereon shall be cumulative. Except as determined by the
Board of Directors as permitted by the provisions of paragraph 1 hereof, all series of Preference
Stock shall rank equally with and be identical in all respects to each other series.
Preference Stock shall rank, as to dividends and upon liquidation, dissolution or winding up prior
to Common Stock and to any other capital stock of the Corporation hereafter authorized, other
than capital stock which shall by its terms rank prior to or on a parity with Preference Stock and
which shall be authorized pursuant to subparagraph 9(a) hereof.
3. Dividends. Before any dividends (other than dividends payable in stock ranking junior to
Preference Stock) on any class or classes of stock of the Corporation ranking junior to Preference
Stock as to dividends or upon liquidation shall be declared and set apart for payment or paid, the
holders of shares of Preference Stock of each series shall be entitled to receive cash dividends,
when and as declared by the Board of Directors at the annual rate, and no more, fixed in the
resolution adopted by the Board of Directors providing for the issue of such series. Such
dividends shall be payable in cash quarterly, each such quarterly payment to be in respect of the
quarterly period ending with the day next preceding the date of such payment (except in the case
of the first dividend which shall be in respect of the period beginning with the initial date of issue
of such shares and ending with the day next preceding the date of such payment), to holders of
Preference Stock of record on the respective dates, not exceeding 40 days preceding such
quarterly dividend payment dates, fixed for that purpose by the Board of Directors. With respect
to each series of Preference Stock, such dividends shall be cumulative from the date or dates of
issue of such series, which date or dates may be set by the Board of Directors pursuant to the
provisions of paragraph 1 hereof. No dividends shall be declared or paid or set apart for payment
on any series of Preference Stock in respect of any quarterly dividend period unless there shall
likewise be or have been declared and paid or set apart for payment on all shares of Preference
Stock of each other series at the time outstanding like dividends in proportion to the respective
annual dividend rates fixed therefor as hereinbefore provided for all quarterly dividend periods
coinciding with or ending before such quarterly dividend period. Accruals of dividends shall not
bear interest.
4. Redemption. The Corporation, at the option of the Board of Directors, may, at any time
permitted by the resolution adopted by the Board of Directors providing for the issue of any
series of Preference Stock and at the redemption price or prices stated. in said resolution, redeem
the whole or any part of the shares of such series at the time outstanding. If at any time less than
all of the shares of Preference Stock then outstanding are to be called for redemption, the shares
to be redeemed may be selected by lot or by such other equitable method as the Board of
Directors in its discretion may determine. Notice of every redemption, stating the redemption
date, the redemption price, and the placement of payment thereof, shall be given by mailing a
copy of such notice at least thirty (30) days and not more than sixty (60) days prior to the date
fixed for redemption to the holders of record of the shares of Preference Stock to be redeemed at
their addresses as the same shall appear on the books of the Corporation. The Corporation, upon
mailing notice of redemption as [foresaid] aforesaidor upon irrevocably authorizing the bank
ortrust company hereinafter mentioned to mail such notice, may deposit or cause to be deposited
in trust with a bank or trust company in the City of Dallas, State of Texas or in the Borough of
Manhattan, City and State of New York, an amount equal to the redemption price of the shares to
be redeemed plus any accrued and unpaid dividends thereon, which amount shall be payable to
the holders of the shares to be redeemed upon surrender of certificates therefor on or after the
date fixed for redemption or prior thereto if so directed by the Board of Directors. Upon such
deposit, or if no such deposit is made, then from and after the date fixed for redemption unless
the Board of Directors shall default in making payment of the redemption price plus accrued and
unpaid dividends upon surrender of certificates as aforesaid, the shares called for redemption
shall cease to be outstanding and the holders thereof shall cease to be stockholders with respect
to such shares and shall have no interest in or claim against the Corporation with respect to such
shares other than the right to receive the redemption price plus accrued and unpaid dividends
from such bank or trust company or from the Corporation, as the case may be, without interest
thereon, upon surrender of certificates as aforesaid; provided, that conversion rights, if any, of
shares called for redemption shall terminate at the close of business on the business day prior to
the date fixed for redemption. Any funds so deposited which shall not be required for such
redemption because of the exercise of conversion rights subsequent to the date of such deposit
shall be returned to the Corporation. In case any holder of shares of Preference Stock which have
been called for redemption shall not, within six (6) years after the date of such deposit, have
claimed the amount deposited with respect to the redemption thereof, such bank or trust
company, upon demand, shall pay over to the Corporation such unclaimed amount and shall
thereupon be relieved of all responsibility in respect thereof to such holder, and thereafter such
holder shall look only to the Corporation for payment thereof. Any interest which may accrue on
funds so deposited shall be paid to the Corporation from time to time.
5. Status of Shares of Preference Stock Redeemed or Acquired. Unless otherwise specifically
provided in the resolutions of the Board of Directors authorizing the issue of any series of
Preference Stock, which have been redeemed, purchased or acquired by the Corporation by
means other than conversion (whether through the operation of a sinking fund or otherwise) shall
have the status of authorized and unissued shares of Preference Stock and may be reissued as
part of the series of which they were originally a part or may be reclassified and reissued as part
of a new series of Preference Stock to be created by resolution of the Board of Directors or as
part of any other series of Preference Stock. Shares of any series of Preference Stock converted
shall not be reissued and the Board of Directors shall take appropriate actions to reflect the
conversion of Preference Stock from time to time by effecting reductions in the number of shares
of Preference Stock which the Corporation is authorized to issue.
6. Redemption or Acquisition of Preference Stock During Default in Payment of Dividends. If at
any time the Corporation shall have failed to pay dividends in full on Preference Stock, thereafter
and until dividends in full including all accrued and unpaid dividends on shares of all series of
Preference Stock at the time outstanding, shall have been declared and set apart for payment or
paid, (i) the Corporation, without the affirmative vote or consent of the holders of at least a
majority of the shares of Preference Stock at the time outstanding, voting or consenting
separately as a class without regard to series, given in person or by proxy, either in writing or by
resolution adopted at a meeting, shall not redeem less than all the shares of Preference Stock at
such time outstanding, regardless of series, other than in accordance with paragraph 8 hereof and
(ii) neither the Corporation nor any subsidiary shall purchase any shares of Preference Stock
except in accordance with a -purchase offer made in writing or by publication, as determined by
the Board of Directors, in their sole discretion after consideration of the respective annual
dividend rates and other relative rights and preferences of the respective series, shall determine
(which determination shall be final and conclusive) will result in fair and equitable treatment
among the respective series; provided, however, that (iii) unless prohibited by the provisions
applicable to any series, the Corporation, to meet the requirements of any sinking fund provision
with respect to any series, may use shares of such series acquired by it prior to such failure and
then held by it as treasury stock, and (iv) nothing shall prevent the Corporation from completing
the purchase or redemption of shares of Preference Stock for which a purchase contract was
entered into for any sinking fund purposes or the notice of redemption of which was mailed to
the holders thereof, prior to such default.
7. Dividends and Distributions an and Redemption and Acquisition of Junior Classes of Stock.
So long as any shares of Preference Stock are outstanding, the Corporation shall not declare or
set apart for payment or pay, any dividends (other than stock dividends payable on shares of
stock ranking junior to Preference Stock) or make any distribution on any other class or classes
of stock of the Corporation ranking junior to Preference Stock as to dividends or upon
liquidation and shall not redeem, purchase or otherwise acquire, or permit any subsidiary to
purchase or otherwise acquire, any shares of any such junior class if at the time of making such
declaration, payment, distribution, redemption, purchase or acquisition the Corporation shall be
in default with respect to any dividend payable on, or any obligation to purchase shares of any
series of Preference Stock; provided, however, that, notwithstanding the foregoing, the
Corporation may at any time redeem, purchase or otherwise acquire shares of stock of any such
junior class in exchange for, or out of the net cash proceeds from the sale of, other shares of
stock of any junior class.
8. Retirement of Shares. If in any case the amounts payable with respect to any obligations to
retire shares of Preference Stock are not paid in full in the case of all series with respect to which
such obligations exist, the number of shares of the various series to be retired shall be in
proportion to the respective amounts which would be payable on account of such obligations if
all amounts payable were discharged in full.
9. Action by Corporation Requiring Approval of Preference Stock. The [corporation]
Corporation shall not, without the affirmative vote or consent of the holders of at least 662/3
percent of the number of shares of Preference Stock at the time outstanding, voting or consenting
(as the case may be) separately as a class without regard to series, given in person or by proxy,
either in writing or by resolution adopted at a meeting:
(a) create any class of stock ranking prior to or on a parity with Preference Stock as to
dividends or upon liquidation or increase the authorized number of shares of any such
previously authorized class of stock;
(b) alter or change any of the provisions hereof so as adversely to affect the preferences,
special rights or powers given to the Preference Stock;
(c) increase the number of shares of Preference Stock which the Corporation is
authorized to issue; or
(d) alter or change any of the provisions hereof or of the resolution adopted by the Board
of Directors providing for the issue of such series so as adversely to affect the
preferences, special rights or powers given to such series.
10. Special Voting Rights. If the Corporation shall have failed to pay, or declare and set apart for
payment, dividends on Preference Stock in an aggregate amount equivalent to six full quarterly
dividends on all shares of Preference Stock at the time outstanding, the number of Directors of
the Corporation shall be increased by two at the first annual meeting of the stockholders of the
Corporation held thereafter, and at such meeting and at each subsequent annual meeting until
dividends payable for all past quarterly dividend periods on all outstanding shares of Preference
[stock] Stockshall have been paid or declared and set apart for payment, in full, the holders of the
shares of Preference Stock shall have, in addition to any other voting rights which they otherwise
may have, the exclusive and special right, voting separately as a class without regard to series,
each share of Preference Stock entitling the holder thereof to one vote per share, to elect two
additional members of the Board of Directors to hold office for a term of one year; provided, that
the right to vote as a class upon the election of such two additional Directors shall not limit the
right of holders of any series of Preference Stock to vote upon the election of all other Directors
and upon other matters if and to the extent that such holders are entitled to vote pursuant to the
resolution adopted by the Board of Directors pursuant to paragraph 1 hereof, providing for the
issue of such series. Upon such payment, or declaration and setting apart for payment, in full, the
terms of the two additional Directors so elected shall forthwith terminate, and the number of
Directors of the Corporation shall be reduced by two and such voting right of the holders of
shares of Preference Stock shall cease, subject to increase in the number of Directors as aforesaid
and to revesting of such voting right in the event of each and every additional failure in the
payment of dividends in an aggregate amount equivalent to six full quarterly dividends as
aforesaid.
11. Liquidation of the Corporation. Upon the voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, Preference Stock shall be preferred as to assets over Common
Stock and any other class or classes of stock ranking junior to Preference Stock so that the
holders of shares of Preference Stock of each series shall be entitled to be paid or to have set
apart for payment, before any distribution is made to the holders of Common Stock and any
other class or classes of stock ranking junior to Preference Stock, the amount fixed in accordance
with paragraph 1 hereof plus an amount equal to all dividends accrued and unpaid up to and
including the date fixed for such payment and the holders of Preference Stock shall not be
entitled to any other payment.
If upon any such liquidation, dissolution or winding up of the Corporation, its net assets shall be
insufficient to permit the payment in full of the respective amounts to which the holders of all
outstanding shares of Preference Stock are entitled as above provided, the entire remaining net
assets of the Corporation shall be distributed among the holders of Preference Stock in amounts
proportionate to the full preferential amounts to which they are respectively entitled.
For the purposes of this paragraph 11, the voluntary sale, lease, exchange or transfer for cash,
shares of stock (securities or otheir cortsideration) of all or substantially all the Corporation's
property or assets to or its consolidation or merger with, one or more corporations shall not be
deemed to be a voluntary or involuntary liquidation, dissolution or winding up of the
Corporation.
12. Voting Rights. Except as otherwise provided by the provisions of this Article FOURTH or by
statute or when fixed in accordance with the provisions of paragraph 1 hereof, the holders of
shares of Preference Stock shall not be entitled to any voting rights.
13. Definitions. For the purposes of this Article FOURTH and of any resolution of the Board of
Directors providing for the issue of any series of Preference Stock or of any statement filed with
the Secretary of State of the State of Delaware (unless otherwise provided in any such resolution
or statement):(a) The term ''outstanding," when used in reference to shares of stock, shall mean issued
shares excluding:(i) shares held by the Corporation or a subsidiary; and
(ii) shares called for redemption if funds for the redemption thereof have been
deposited in trust.
(b) Any class or classes of stock of the Corporation shall be deemed to rank: (i) prior to Preference Stock, either as to dividends or upon liquidation, if the
holders of such class or classes shall be entitled to the receipt of dividends or
amounts distributable upon liquidation, dissolution or winding up, as the case may
be, in preference or priority to the holders of Preference Stock;
(ii) on a parity with Preference Stock, either as to dividends or upon liquidation,
whether or not the dividend rates or dividend payment dates or the redemption or
liquidation prices per share thereof be different from those of Preference Stock, if
the holders of such class or classes shall be entitled to the receipt of dividends or
of amounts distributable 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 one over the other as between the holders of such
class or classes and the holders of Preference Stock; and
(iii) junior to Preference Stock, either as to dividends or upon liquidation, if the
rights of the holders of such class or classes shall be subject or subordinate to the
rights of the holders of Preference Stock in respect of the receipt of dividends or
of amounts distributable upon liquidation, dissolution or winding up, as the case
may be.
(c) The term "subsidiary" as used herein shall mean any corporation 51 percent or more
of the outstanding stock having voting rights of which is at the time owned or controlled
directly or indirectly by the Corporation.
(d) The word "hereof, " when used in this Article FOURTH in reference to a particular
paragraph or subparagraph, refers to such paragraph or subparagraph of the section
captioned "Preference Stock" or "Preferred Stock, - as the case may be, and not to Article
FOURTH as a whole.
Preferred Stock
1. Authority of Board of Directors. Authority is hereby vested in the Board of Directors to divide
any or all of the authorized shares of Preferred Stock into series and, within the limita tions
provided by law and this Article FOURTH, to fix and determine the powers, designations,
preferences and relative, participating, optional or other rights, if any, and the quali fications,
limitations or restrictions thereof, if any, of each such series, including but not lim ited to the
right to fix and determine:
(a) the designation of such series, the number of shares to constitute such series and the
stated value thereof if different from the par value thereof;
(b) the dividends, if any, payable on such series, whether any such dividends shall be
cumulative, and, if so, from what dates, the conditions and dates upon which such
dividends shall be payable, and the preference or relation which such dividends shall bear
to the dividends payable on any shares of stock of any other class or any other series of
this class;
(c) whether the shares of such series shall be subject to redemption by the Corporation,
and, if so, the times, prices and other conditions of such redemption;
(d) the amount or amounts payable upon shares of such series upon, and the rights of the
holders of such series in, the voluntary or involuntary liquidation, dissolution or winding
up, or upon any distribution of the assets, of the Corporation;
(e) whether the shares of such series shall be subject to the operation of a retirement or
sinking fund and, if so, the extent to and manner in which any such retirement or sinking
fund shall be applied to the purchase or redemption of the shares of such series for
retirement or other corporate purposes and the terms and provisions relative to the
operation the,,eof;
(f) whether the shares of such series shall be convertible into, or exchangeable for, shares
of stock of any other class or any other series of this class or any other securities and, if
so, the price or prices or the rate or rates of conversion or exchange and the method, if
any, of adjusting the same, and any other terms and conditions of conversion or
exchange;
(g) the limitations or restrictions, if any, to be effective while any shares of such series
are outstanding upon the payment of dividends or the making of other distributions on,
and upon the purchase, redemption or other acquisition by the Corporation of, the
Common Stock or shares of stock of any other class or any other series of this class;
(h) the conditions or restrictions, if any, upon the creation of indebtedness of the
Corporation or upon the issue of any additional stock, including additional shares of such
series or of any other series of this class or of any other class; and
(i) any and all such other provisions as may be fixed or determined by the Board of
Directors of the Corporation pursuant to Delaware law.
2. Parity of Series of Preferred Stock and Shares Within Series, Priority of Preferred Stock. All
shares of any one series of Preferred Stock shall be identical in all respects wit h all other shares
of such series, except that shares of any one series issued at different times may differ as to the
dates from which dividends thereon shall be cumulative. The powers, preferences and relative ,
participating, optional and other special rights of each series of Preferred Stock, and the
qualifications, limitations or restrictions thereof, if any, may differ from those of any a nd all
other series of Preferred Stock at any time outstanding.
Preferred Stock shall rank, as to dividends and upon liquidation, dissolution or winding up, (i)
junior and subordinate to Preference Stock and (ii) prior to Common Stock and to any other
capital stock of the Corporation hereafter authorized, other than capital stock which shall by its
terms rank prior to or on a parity with Preferred Stock and which shall be authorized by the
affirmative vote or consent of the holders of a majority of the number of shares of Preferred
Stock at the time outstanding, voting or consenting (as the case may be) separately as a class
without regard to series, given in person or by proxy, either in writing or by resolution adopted at
a meeting.
3. Voting Rights. Except as otherwise provided by statute or in paragraph 2 above or as maybe
fixed by the Board of Directors in accordance with any applicable rules or policies of any
exchange on which the Common Stock is listed or the Preferred Stock is proposed to be listed,
the holders of shares of Preferred Stock shall not be entitled to any voting rights.
Common Stock
Each holder of record of Common Stock shall have the right to one (1) vote for each share of
Common Stock standing in his name on the books of the Corporation. Except as required by law
or as otherwise specifically provided in this Article FOURTH, holders of Preference Stock
having voting rights and holders of Common Stock shall vote together as one class.
Preemptive Rights
Neither the holders of Preference Stock, the holders of Preferred Stock nor the holders of
Common Stock shall have any preemptive rights, and the Corporation shall have the right to
issue and to sell to any person or persons any shares of its capital stock or any option rights or
any securities having conversion or option rights, without first offering such shares, rights or
securities to any holders of Preference Stock, Preferred Stock or Common Stock.
EXHIBIT II
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS OF SERIES A JUNIOR CUMULATIVE PREFERENCE STOCK OF
ORYX ENERGY COMPANY
Pursuant to Section 151 of the General Corporation Law of the State of Delaware
WE, Robert P. Hauptfuhrer and Frank B. Sweeney, being the Chairman of the Board and Chief
Executive Officer, and Corporate Secretary, respectively, of Oryx Energy Company, a
corporation organized and existing under the General Corporation Law of the State of Dela ware
(''Corporation") in accordance with the provisions of sections 103 and 151 thereof, DO HEREBY
CERTIFY:
That pursuant to the authority conferred upon the Board of Directors by the Restated Certificate
of Incorporation of the Corporation, the Board of Directors of the Corporation at a meeting duly
called and held on September 11, 1990, at which a quorum was present and acting throughout,
duly adopted the following resolution creating a series of shares of Preference Stock, par value of
$1.00 per share, designated, "Series A Junior Cumulative Preference Stock":
RESOLVED, that pursuant to the authority vested in the Board of Directors of the Corporation
by the Restated Certificate of Incorporation the Board of Directors does hereby provide for the
issue of a series of Preference Stock, par value $1.00 per share, of the Corporation, to be
designated "Series A Junior Cumulative Preference Stock" (hereinafter referred to as the "Series
A Preference Stock"), and to the extent that the designations, powers, preferences and relative
and other special rights and the qualifications, limitations and restrictions of the Series A
Preference Stock are not stated and expressed in the Restated Certificate of Incorporation, does
hereby fix and herein state and express such designations, powers, preferences and relative and
other special rights and the qualifications, limitations and restrictions thereof, as follows (all
terms used herein which are defined in the Restated Certificate of Incorporation shall be deemed
to have the meanings provided therein):
Series A Preference Stock
Section 1. Designation and Amount. The shares of such series shall be designated as "Series A
Junior Cumulative Preference Stock" and the number of shares constituting such series shall be
120,000.
Section 2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders of any shares of any series of
Preference Stock ranking prior and superior to the shares of Series A Preference Stock
with respect to dividends, the holders of shares of Series A Preference Stock, in
preference to the holders of Common Stock, par value $1.00 per share (the "Common
Shares"), of the Corporation, and of any other junior stock, shall be entitled to receive,
when, as and if declared by the Board of Directors out of funds legally available for the
purpose, quarterly dividends payable in cash on March 10, June 10, September 10, and
December 10 in each year (each such date being referred to herein as a "Quarterly
Dividend Payment Date"), commencing on the first Quarterly Dividend Payment Date
after the first issuance of a share or fraction of a share of Series A Preference Stock, in an
amount per share (rounded to the nearest cent) equal to the greater of (a) $2.50 or (b) the
Antidilution Number (as hereafter defined) times the aggregate per share amount of all
cash dividends and the Antidilution Number times the aggregate per share amount
(payable in kind) of all non-cash dividends or other distributions other than a dividend
payable in Common Shares or a subdivision of the outstanding Common Shares (by
reclassification or otherwise) declared on the Common Shares since the immediate ly
preceding Quarterly Dividend Payment Date, or, with respect to the first Quarterly
Dividend Payment Date, since the first issuance of any share or fraction of a share of
Series A Preference Stock. The "Antidilution Number" shall initially be 1,000. In the
event the Corporation shall at any time after September 11, 1990 (the "Rights Decla ration
Date") (i) declare any dividend on Common Shares payable in Common Shares, (ii)
subdivide the outstanding Common Shares, or (iii) combine the outstanding Common
Shares into a smaller number of shares, then in each such case the Antidilution Number
in effect immediately prior to such event shall be adjusted by multiplying the Anti dilution
Number by a fraction the numerator of which is the number of Common Shares
outstanding immediately after such event and the denominator of which is the number of
Common Shares that were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on the Series A Preference
Stock as provided in paragraph (A) above immediately after it declares a dividend or
distribution on the Common Shares (other than a dividend payable in Common Shares);
provided that, in the event no dividend or distribution shall have been declared on the
Common Shares during the period between any Quarterly Dividend Payment Date and
the next subsequent Quarterly Dividend Payment Date, a dividend of $2.50 per share on
the Series A Preference Stock shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding shares of Series A
Preference Stock from the Quarterly Dividend Payment Date next preceding the date of
issue of such shares of Series A Preference Stock, unless the issue date of such shares is a
Quarterly Dividend Payment Date or is a date after the record date for the determination
of holders of shares of Series A Preference Stock entitled to receive a quarterly dividend
and before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on
the shares of Series A Preference Stock in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of holders of shares of Series A
Preference Stock entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be no more than 30 days prior to the date fixed for the
payment thereof.
Section 3. Voting Rights. The holders of shares of Series A Preference Stock shall have the
following voting rights: (A) Each share of Series A Preference Stock shall entitle the holder thereof to one vote on
all matters submitted to a vote of the stockholders of the Corporation.
(B) Except as otherwise provided herein, by law or in the Restated Certificate of
Incorporation, the holders of shares of Series A Preference Stock and the holders of
Common Shares shall vote together as one class on all matters submitted to a vote of
stockholders of the Corporation.
(C) Except as set forth in the Restated Certificate of Incorporation, holders of Series A
Preference Stock shall have no special voting rights and their consent shall not be
required for taking any corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions payable on the
Series A Preference Stock as provided in Section 2 are in arrears, thereafter and until all
accrued and unpaid dividends and distributions, whether or not declared, on shares of
Series A Preference Stock outstanding shall have been paid in full, the Corporation shall
not(i) declare or pay dividends on, make any other distributions on, or redeem or
purchase or otherwise acquire for consideration any shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution or winding up) to the
Series A Preference Stock;
(ii) declare or pay dividends on or make any other distributions on any shares of
stock ranking on a parity (either as to dividends or upon liquidation, dissolution or
winding up) with the Series A Preference Stock, except dividends paid ratably on
the Series A Preference Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts to which the holders of all
such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration shares of any stock
ranking on a parity (either as to dividends or upon liquidation, dissolution or
winding up) with the Series A Preference Stock, provided that the corporation
may at any time redeem, purchase or otherwise acquire shares of any such parity
stock in exchange for shares of any stock of the Corporation ranking junior (either
as to dividends or upon dissolution, liquidation or winding up) to the Series A
Preference Stock; or
(iv) purchase or otherwise acquire for consideration any shares of Series A
Preference Stock, or any shares of stock ranking on a parity with the Series A
Preference Stock, except in accordance with a purchase offer made in writing or
by publication (as determined by the Board of Directors) to all holders of such
shares upon such terms as the Board of Directors, after consideration of the
respective annual dividend rates and other relative rights and preferences of the
respective series and classes, shall determine in good faith will result in fair and
equitable treatment among the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the Corporation to purchase or
otherwise acquire for consideration any shares of stock of the Corporation unless the
Corporation could, under paragraph (A) of this Section 4, purchase or otherwise acquire
such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A Preference Stock purchased or otherwise
acquired by the Corporation in any manner whatsoever shall be retired and cancelled promptly
after the acquisition thereof. All such shares shall upon their cancellation become authorized but
unissued shares of Preference Stock and may be reissued as part of a new series of Preference
Stock to be created by resolution or resolutions of the Board of Directors, subject to the
conditions and restrictions on issuance set forth herein.
Section 6. Uquildation, Dissolution or Winding Up. (A) Upon any liquidation (voluntary or otherwise), dissolution or winding up of the
Corporation, no distribution shall be made to the holders of shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution or winding up) to the Series A
Preference Stock unless, prior thereto, the holders of shares of Series A Preference Stock
shall have received $100 per share, plus an amount equal to accrued and unpaid
dividends and distribution thereon, whether or not declared, to the date of such payment
(the "Series A Liquidation P~eference"). Following the payment of the full amount of the
Series A Liquidation Preference, no additional distributions shall be made to the holders
of shares of Series A Preference Stock unless, prior thereto, the holders of Common
Shares shall have received an amount per share (the "Common Adjustment") equal to the
quotient obtained by dividing the Series A Liquidation Preference by the Antidilution
Number. Following the payment of the full amount of the Series A Liquidation
Preference and the Common Adjustment in respect of all outstanding shares of Series A
Preference Stock and Common Shares, respectively, holders of Series A Preference Stock
and holders of Common Shares shall receive their ratable and proportionate share of the
remaining assets to be distributed in the ratio of the Antidilution Number to one with
respect to such Preference Stock and Common Shares, on a per share basis, respectively.
(B) In the event, however, that there are not sufficient assets available to permit payment
in full of the Series A Liquidation Preference and the liquidation preferences of all other
series of preference stock, if any, which rank on a parity with Series A Preference Stock,
then such remaining assets shall be distributed ratably to the holders of such parity shares
in proportion to their respective liquidation preferences. In the event, however, that there
are not sufficient assets available to permit payment in full of the Common Adjustment,
then such remaining assets shall be distributed ratably to the holders of Common Shares.
Section 7. Consolidation, Merger, etc. In case the Corporation shall enter into any consolidation,
merger, combination or other transaction in which the Common Shares are exchanged for or
changed into other stock or securities, cash and/or any other property, then in any such case the
shares of Series A Preference Stock shall at the same time be similarly exchanged or changed in
an amount per share (subject to the provision for adjustment hereinafter set forth) equal to the
Antidilution Number times the aggregate amount of stock, securities, cash and/or any other
property (payable in kind), as the case may be, into which or for which each Common Share is
changed or exchanged.
Section 8. No Redemption. The shares of Series A Preference Stock shall not be redeemable.
Section 9. Ranking. The Series A Preference Stock shall rank junior to all other series of the
Corporation's Preference Stock as to the payment of dividends and the distribution of assets,
unless the terms of any such series shall provide otherwise. Section 10. Fractional Shares. Series
A Preference Stock may be issued in fractions of a share which shall entitle the holder, in
proportion to such holders fractional shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit of all other rights of holders of Series A
Preference Stock. IN WITNESS WHEREOF, Oryx Energy Company has caused this certificate
to be executed by its Chairman and Chief Executive Officer and attested by its Secretary this
11th day of September, 1990.
ORYX ENERGY COMPANY
Attest: /s/ FRANK B. SWEENEY By: /s/ ROBERT P. HAUPTFUHRER
Frank B. Sweeney Robert P. Hauptfuhrer
Corporate Secretary Chairman and Chief Executive Officer
EXHIBIT III
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS OF
SERIES B JUNIOR CUMULATIVE CONVERTIBLE PREFERENCE STOCK OF
ORYX ENERGY COMPANY
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
WE, Robert P. Hauptfuhrer and Frank B. Sweeney, being the Chairman of the Board, Chief
Executive Officer and the Corporate Secretary, respectively, of Oryx Energy Company, a
corporation organized and existing under the General Corporation Law of the State of Delaware
("Corporation"), in accordance with the provisions of section 103 and 151 thereof, DO HEREBY
CERTIFY:
That pursuant to the authority conferred upon the Board of Directors by the Restated Certificate
of Incorporation of the Corporation, the Board of Directors of the Corporation at a meeting duly
called and held on September 11, 1990, at which a quorum was present and acting throughout,
duly adopted the following resolution creating a series of shares of Preference Stock, par value of
$1.00 per share, designated "Series B Junior Cumulative Convertible Preference Stock":
RESOLVED, that pursuant to the authority vested in the Board of Directors of the Corporation
by the Restated Certificate of Incorporation, the Board of Directors does hereby provide for the
issue of a series of Preference Stock, par value $1.00 per share, of the Corporation, to be
designated "Series B Junior Cumulative Convertible Preference Stock" (hereinafter referred to as
the "Series B Preference Stock"), and to the extent that the designations, powers, preferences and
relative and other special rights and the qualifications, limitations and restrictions of the Series B
Preference Stock are not stated and expressed in the Restated Certificate of Incorporation, does
hereby fix and herein state and express such designations, powers, preferences and relative and
other special rights and the qualifications, limitations and restrictions thereof, as follows (all
terms used but not defined herein shall have the meanings used in the Restated Certificate of
Incorporation):
Series B Preference Stock:
Section 1. Designation and Amount. The shares of such series shall be designated as "Series
B Junior Cumulative Convertible Preference Stock" and the number of shares constituting such
series shall be 10,000,000.
Section 2. Dividends. (A) Subject to the prior and superior rights of the holders of any shares of any series of
Preference Stock ranking prior and superior to the shares of Series B Preference Stock
with respect to dividends, the holders of shares of Series B Preference Stock, in
preference to the holders of Common Stock, par value $1.00 per share (the "Common
Shares"), of the Corporation, and of any other junior stock, shall be entitled to receive,
when, as and if declared by the Board of Directors out of funds legally available for the
purpose, dividends payable in cash on September 30, 1990, and on the last day of each
December, March, June and September thereafter (each such date being referred to herein
as a "Quarterly Dividend Payment Date"), in an amount per share equal to the greater of
"(a)" and "(b)", where (a) equals $0.00025 and (b) equals the sum of (i) the Antidilution
Number (as hereafter defined) times the sum of the aggregate per share amount of all
cash dividends and the aggregate per share amount of all non-cash dividends (other than a
dividend payable in Common Shares or a subdivision of the outstanding Common Shares
(by reclassification or otherwise) ("Non-Cash Dividends") declared on the Common
Shares since the last Quarterly Dividend Payment Date or, with respect to the first
Quarterly Dividend Payment Date for which the record date shall be September 11, 1990,
$0.30; plus (ii) the Dividend Preference (as hereafter defined).
(B) The "Dividend Preference" shall be $0.00 with respect to shares of Series B
Preference Stock not owned of record by the person who was record holder thereof on
September 11, 1990 but otherwise shall be as follows: (i) with respect to the first through
fourth Quarterly Dividend Payment Dates, inclusive, $0.175, (ii) with respect to the fifth
through eighth Quarterly Dividend Payment Dates, inclusive, $0.125, (iii) with respect to
the ninth through twelfth Quarterly Dividend Payment Dates, inclusive, $0.10, (iv) with
respect to the thirteenth through sixteenth Quarterly Dividend Payment Dates, inclusive,
$0.0625, (i v) with respect to the seventeenth through twentieth Quarterly Dividend
Payment Dates, inclusive, $0.025, and (vi) thereafter $0.00.
(C) The Board of Directors shall declare a dividend on the Series B Preference Stock as
provided in paragraph (A) above immediately after it declares a cash dividend or Non-
Cash Dividend on the Common Shares; provided that, after the twentieth Quarterly
Dividend Payment Date or with respect to shares of Series B Preference Stock that have
been transferred by the original record holder, in the event no dividend or distribution
shall have been declared on the Common Shares during the period between any Quarterly
Dividend Payment Date and the next subsequent Quarterly Dividend Payment Date, a
dividend of $0.00025 per share on the Series B Preference Stock shall nevertheless be
payable on such subsequent Quarterly Dividend Payment Date.
(D) Dividends shall begin to accrue and be cumulative on outstanding shares of Series B
Preference Stock from September 30, 1990. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of Series B Preference Stock in an amount less than
the total amount of such dividends at the time accrued and payable on such shares shall
be allocated pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the determination of
holders of shares of Series B Preference Stock entitled to receive payment of a dividend
or distribution declared thereon, which record date shall be no more than 40 days prior to
the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series B Preference Stock shall have solely
the voting rights set forth in paragraphs 9 and 10 of Article Fourth of the Restated Certificate of
Incorporation as in effect on September 11, 1990.
Section 4. Certain Restrictions. Whenever dividends payable on the Series B Preference Stock as
provided in Section 2 are in arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series B Preference Stock outstanding shall
have been paid in full, the Corporation shall not(A) declare or pay cash dividends or Non-Cash Dividends on, or redeem or purchase or
otherwise acquire for consideration any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series B Preference
Stock; or
(B) declare or pay cash dividends or Non-Cash Dividends on any shares of stock ranking
on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the
Series B Preference Stock, except dividends paid ratably on the Series B Preference
Stock and all such parity stock on which dividends are payable or in arrears in proportion
to the total amounts to which the holders of all such shares are then entitled.
Section 5. Conversion. (A) Each outstanding share of Series B Preference Stock shall be convertible into the
Anticlilution Number of Common Shares (i) as of the Close of Business on the fifth
Business Day following the delivery to the Secretary of the Corporation, at its principal
place of business, of a certificate, executed by the holder or the proposed transferee of his
shares of Series B Preference Stock, stating that the proposed recipient of such Common
Shares is not and, after giving effect to such conversion, will not be or become the
Beneficial Owner (as hereafter defined) of more than 1 % of the Common Shares
outstanding (after giving effect to such conversion), unless, prior to the Close of Business
on the third Business Day following the delivery of such certificate, the Corporation shall
have advised the proposed recipient of such Common Shares by telephone or telefax (the
number or numbers of which shall be set forth in the certificate) that, based upon the
records of the Corporation or other public
