Exhibit 4.4
FIRST AMENDMENT TO RIGHTS AGREEMENT
THIS FIRST AMENDMENT TO RIGHTS AGREEMENT (this "Amendment"), dated to
be effective as of February 14, 2001, is between XXXXXXX & XXXX FINANCIAL, INC.,
a Delaware corporation (the "Company"), and FIRST CHICAGO TRUST COMPANY OF NEW
YORK, a New York trust company (the "Rights Agent"), at the direction of the
Company. Capitalized terms not defined herein have the same meaning as defined
in the Rights Agreement (as defined below).
WHEREAS, the Company and the Rights Agent entered into a Rights
Agreement dated as of April 28, 1999 (the "Rights Agreement");
WHEREAS, SECTION 27 of the Rights Agreement permits the amendment
of the Rights Agreement at the direction of the Company;
WHEREAS, the Company has entered into that certain merger agreement,
dated to be effective as of February 14, 2001, by and between the Company and
WDR Sub, Inc., a Delaware corporation wholly-owned by the Company (the "Merger
Agreement"), pursuant to which all the issued shares of the Company's Class B
Common Stock, $.01 par value per share, will be converted into shares of the
Company's Class A Common Stock, $.01 par value per share, (the "Converted
Shares");
WHEREAS, the Rights Agreement does not explicitly address the effects a
conversion of the shares of Class B Common Stock into shares of Class A Common
Stock will have upon the Rights attached to the shares of Class B Common Stock
or the Converted Shares;
WHEREAS, pursuant to a resolution duly adopted on January 18, 2001, the
Board of Directors of the Company adopted and authorized an amendment to the
Rights Agreement to clarify how the transactions contemplated by the Merger
Agreement will effect the Rights granted under the Rights Agreement;
WHEREAS, the Board of Directors of the Company has resolved and
determined that such amendment is desirable and consistent with, and for the
purpose of fulfilling, the objectives of the Board of Directors in connection
with the original adoption of the Rights Agreement;
NOW, THEREFORE, the Rights Agreement is hereby amended as follows:
A. The Rights Agreement shall be amended by inserting the following text
immediately following the text of Section 34:
"Section 35. CONVERSION OF SHARES OF COMMON STOCK. If the Company
consummates the merger (the "Merger") contemplated by that certain merger
agreement, dated as of February 14, 2001, by and between the Company and WDR
Sub, Inc., a Delaware corporation wholly-owned by the Company, each issued share
of Class B Common Stock, shall, by virtue of the Merger, and without any action
on the part of the holder thereof, become and be
converted into one fully paid and validly issued, non-assessable share of Class
A Common Stock (a "Converted Share"). For purposes of this Agreement,
simultaneously upon the conversion of each share of Class B Common Stock into a
share of Class A Common Stock, the Right attached to such share of Class B
Common Stock shall be cancelled, and a Right shall be issued for each Converted
Share in accordance with Section 3(c) hereof except that the legend referred to
therein shall only be required to be borne by new certificates issued for
Converted Shares."
B. Upon the Effective Time, as defined in the Merger Agreement, the
Rights Agreement shall be amended as follows:
1. AMENDMENT TO THE PREAMBLE.
-------------------------
The preamble of the Rights Agreement is amended by deleting the phrase
"form of Certificate of" and inserting the phrase "Section 4.3.4 of the
Company's Amended and Restated Certificate of Incorporation (the "Designation of
the Rights and Preferences of the Series A Junior Participating Preferred
Stock")
2. AMENDMENT OF SECTION 1.
----------------------
a. SECTION 1(g) of the Rights Agreement is hereby amended in its
entirety to read as follows:
"(g) [intentionally left blank]"
b. SECTION 1(i) of the Rights Agreement is hereby amended in its
entirety to read as follows:
(i) "Common Stock" shall mean the Class A Common Stock, except
that "Common Stock" when used with reference to any Person
other than the Company shall mean the capital stock of such
Person with the greatest voting power, or the equity
securities or other equity interest having power to control or
direct the management, of such Person.
3. AMENDMENT TO THE TABLE OF CONTENTS.
----------------------------------
The Table of Contents of the Rights Agreement is hereby amended by
substituting the phrase "Designation of the Rights and Preferences of the Series
A Junior Participating Preferred Stock" for the phrase "Certificate of
Designation, Preferences and Rights" in the reference to EXHIBIT A in the Table
of Contents.
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4. AMENDMENT OF EXHIBIT A.
----------------------
EXHIBIT A to the Rights Agreement is hereby replaced with EXHIBIT A to
this Amendment.
5. AMENDMENT OF EXHIBIT C. The first full paragraph of EXHIBIT C to the
Rights Agreement is hereby amended in its entirety to read as follows:
On April 28, 1999, the Board of Directors of Xxxxxxx
& Xxxx Financial, Inc. (the "Company") declared a dividend
distribution of one Right for each outstanding share of Class
A Common Stock and Class B Common Stock of the Company to
stockholders of record at the close of business on May 12,
1999 (the "Record Date"). Subsequently, the Company converted
all issued shares of Class B Common Stock into shares of Class
A Common Stock, and therefore, the Rights attached to the
shares of Class B Common Stock were cancelled and new Rights
were issued with the shares of Class A Common Stock into which
the shares of Class B Common Stock were converted. In this
summary, the Class A Common Stock is referred to as "Common
Stock". Each Right entitles the registered holder to purchase
from the Company a unit consisting of one one-hundredth of a
share (a "Unit") of Series A Junior Participating Preferred
Stock, par value $1.00 per share (the "Series A Preferred
Stock") at a Purchase Price of $85.00 per Unit, subject to
adjustment. The description and terms of the Rights are set
forth in a Rights Agreement (the "Rights Agreement") between
the Company and First Chicago Trust Company of New York, as
Rights Agent.
4. EFFECTIVENESS.
Subject to the condition in Section B of this Amendment, this Amendment
shall be effective as of the date above first written, and all references to the
Rights Agreement shall, from and after such time, be deemed to be references to
the Rights Agreement as amended hereby.
5. CERTIFICATION.
The undersigned officer of the Company certifies by execution hereof
that this Amendment is in compliance with the terms of SECTION 27 of the Rights
Agreement.
6. MISCELLANEOUS.
This Amendment may be executed in any number of counterparts, each of
such counterparts shall for all purposes be deemed to be an original, and all
such counterparts shall together constitute but one and the same instrument. If
any term, provision, covenant or
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restriction of this Amendment is held by a court of competent jurisdiction or
other authority to be invalid, illegal, or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Amendment shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date and year first above written.
XXXXXXX & XXXX FINANCIAL, INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx X. Xxxxxx
Title: Chairman and CEO
FIRST CHICAGO TRUST COMPANY OF NEW YORK,
as Rights Agent
By: /s/ Xxxxxxxx X. Xxxxx
---------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
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EXHIBIT A
RIGHTS, POWERS AND PREFERENCES OF THE SERIES A JUNIOR
PARTICIPATING PREFERRED STOCK
4.3.4 DESIGNATION OF THE RIGHTS AND PREFERENCES OF THE SERIES
A JUNIOR PARTICIPATING PREFERRED STOCK. 750,000 shares of the
authorized Preferred Stock are hereby designated Series A Junior
Participating Preferred Stock ("Series A Junior Participating Preferred
Stock"). The rights and preferences of the Series A Junior
Participating Preferred Stock are as follows:
(a) DIVIDENDS.
(1) Subject to the prior and superior rights of
the holders of any shares of any series of
Preferred Stock ranking prior and superior
to the shares of Series A Junior
Participating Preferred Stock with respect
to dividends, the holders of shares of
Series A Junior Participating Preferred
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 the first day of February, May, August
and November 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 Junior Participating
Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the
greater of (a) $1.00 or (b) subject to the
provision for adjustment hereinafter set
forth, 100 times the aggregate per share
amount of all cash dividends, and 100 times
the aggregate per share amount (payable in
kind) of all non-cash dividends or other
distributions other than a dividend payable
in shares of Common Stock or a subdivision
of the outstanding shares of Common Stock
(by reclassification or otherwise), declared
on the Common Stock since the immediately
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 Junior Participating Preferred
Stock. In the event the Corporation shall at
any time after April 28, 1999 (the "Rights
Declaration Date") (i) declare any dividend
on Common Stock payable in shares of Common
Stock, (ii) subdivide the outstanding Common
Stock, or (iii) combine the outstanding
Common Stock into a smaller number of
shares, then in each such case the amount to
which holders of shares of Series A Junior
Participating Preferred Stock were entitled
immediately prior to such event under clause
(b) of the preceding sentence shall be
adjusted by multiplying such amount by a
fraction the numerator of which is the
number of shares of Common Stock outstanding
immediately after such event and the
denominator of
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which is the number of shares of Common
Stock that were outstanding immediately
prior to such event.
(2) The Corporation shall declare a dividend or
distribution on the Series A Junior
Participating Preferred Stock as provided in
Paragraph 4.3.4(a)(1) above immediately
after it declares a dividend or distribution
on the Common Stock (other than a dividend
payable in shares of Common Stock); provided
that, in the event no dividend or
distribution shall have been declared on the
Common Stock during the period between any
Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date,
a dividend of $1.00 per share on the Series
A Junior Participating Preferred Stock shall
nevertheless be payable on such subsequent
Quarterly Dividend Payment Date.
(3) Dividends shall begin to accrue and be
cumulative on outstanding shares of Series A
Junior Participating Preferred Stock from
the Quarterly Dividend Payment Date next
preceding the date of issue of such shares
of Series A Junior Participating Preferred
Stock, unless the date of issue of such
shares is prior to the record date for the
first Quarterly Dividend Payment Date, in
which case dividends on such shares shall
begin to accrue from the date of issue of
such shares, or unless the date of issue is
a Quarterly Dividend Payment Date or is a
date after the record date for the
determination of holders of shares of Series
A Junior Participating Preferred 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 Junior Participating Preferred
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 Junior
Participating Preferred 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.
(b) VOTING RIGHTS. The holders of shares of Series A
Junior Participating Preferred Stock shall have the
following voting rights:
(1) Subject to the provision for adjustment
hereinafter set forth, each share of Series
A Junior Participating Preferred Stock shall
entitle the holder thereof to 100 votes on
all matters submitted to a vote of the
stockholders of the Corporation. In the
event the Corporation shall at any time
after the Rights Declaration Date (i)
declare any dividend on
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the Common Stock payable in shares of Common
Stock, (ii) subdivide the outstanding Common
Stock, or (iii) combine the outstanding
Common Stock into a smaller number of
shares, then in each such case the number of
votes per share to which holders of shares
of Series A Junior Participating Preferred
Stock were entitled immediately prior to
such event shall be adjusted by multiplying
such number by a fraction the numerator of
which is the number of shares of Common
Stock outstanding immediately after such
event and the denominator of which is the
number of shares of Common Stock that were
outstanding immediately prior to such event.
(2) Except as otherwise provided herein or by
law, the holders of shares of Series A
Junior Participating Preferred Stock and the
holders of shares of Common Stock shall vote
together as one class on all matters
submitted to a vote of stockholders of the
Corporation.
(4) If at any time dividends on any Series A
Junior Participating Preferred Stock shall
be in arrears in an amount equal to six (6)
quarterly dividends thereon, the occurrence
of such contingency shall xxxx the beginning
of a period (herein called a "default
period") which shall extend until such time
when all accrued and unpaid dividends for
all previous quarterly dividend periods and
for the current quarterly dividend period on
all shares of Series A Junior Participating
Preferred Stock then outstanding shall have
been declared and paid or set apart for
payment. During each default period, all
holders of Preferred Stock (including
holders of the Series A Junior Participating
Preferred Stock) with dividends in arrears
in an amount equal to six (6) quarterly
dividends thereon, voting as a class,
irrespective of series, shall have the right
to elect two (2) directors.
(5) During any default period, the voting right
described in section 4.3.4(b)(4) of the
holders of Series A Junior Participating
Preferred Stock may be exercised initially
at a special meeting called pursuant to
section 4.3.4(b)(6) or at any annual meeting
of stockholders, and thereafter at annual
meetings of stockholders, provided that
neither such voting right nor the right of
the holders of any other series of Preferred
Stock, if any, to increase, in certain
cases, the authorized number of directors
shall be exercised unless the holders of ten
percent (10%) in number of shares of
Preferred Stock outstanding shall be present
in person or by proxy. The absence of a
quorum of the holders of Common Stock shall
not affect the exercise by the holders of
Preferred Stock of such voting right. At any
meeting at which the holders of Preferred
Stock shall exercise such voting right
initially during an existing default period,
they shall have the right, voting as a
class, to elect directors to fill such
vacancies, if any, in the Board of Directors
as may then exist up to two (2) directors
or, if such right is exercised at an annual
meeting, to elect two (2) directors.
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If the number which may be so elected at any
special meeting does not amount to the
required number, the holders of the
Preferred Stock shall have the right to make
such increase in the number of directors as
shall be necessary to permit the election by
them of the required number. After the
holders of the Preferred Stock shall have
exercised their right to elect directors in
any default period and during the
continuance of such period, the number of
directors shall not be increased or
decreased except by vote of the holders of
Preferred Stock as herein provided or
pursuant to the rights of any equity
securities ranking senior to or PARI PASSU
with the Series A Junior Participating
Preferred Stock.
(6) Unless the holders of Preferred Stock shall,
during an existing default period, have
previously exercised their right to elect
directors, the Board of Directors may order,
or any stockholder or stockholders owning in
the aggregate not less than ten percent
(10%) of the total number of shares of
Preferred Stock outstanding, irrespective of
series, may request, the calling of a
special meeting of the holders of Preferred
Stock, which meeting shall thereupon be
called by the President, a Vice-President or
the Secretary of the Corporation. Notice of
such meeting and of any annual meeting at
which holders of Preferred Stock are
entitled to vote pursuant to this section
4.3.4(b)(6) shall be given to each holder of
record of Preferred Stock by mailing a copy
of such notice to him at his last address as
the same appears on the books of the
Corporation. Such meeting shall be called
for a time not earlier than 20 days and not
later than 60 days after such order or
request or in default of the calling of such
meeting within 60 days after such order or
request, such meeting may be called on
similar notice by any stockholder or
stockholders owning in the aggregate not
less than ten percent (10%) of the total
number of shares of Preferred Stock
outstanding. Notwithstanding the provisions
of this section 4.3.4(b)(6), no such special
meeting shall be called during the period
within 60 days immediately preceding the
date fixed for the next annual meeting of
the stockholders.
(7) In any default period, the holders of Common
Stock, and other classes of stock of the
Corporation if applicable, shall continue to
be entitled to elect the whole number of
directors until the holders of Preferred
Stock shall have exercised their right to
elect two (2) directors voting as a class,
after the exercise of which right (x) the
directors so elected by the holders of
Preferred Stock shall continue in office
until their successors shall have been
elected by such holders or until the
expiration of the default period, and (y)
any vacancy in the Board of Directors may
(except as provided in Section 4.3.4(b)(5))
be filled by vote of a majority of the
remaining directors theretofore elected by
the holders of the class of stock which
elected the director whose office shall have
become vacant. References in this Section
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4.3.4(b) to directors elected by the holders
of a particular class of stock shall include
directors elected by such directors to fill
vacancies as provided in clause (y) of the
foregoing sentence.
(8) Immediately upon the expiration of a default
period, (x) the right of the holders of
Preferred Stock as a class to elect
directors shall cease, (y) the term of any
directors elected by the holders of
Preferred Stock as a class shall terminate,
and (z) the number of directors shall be
such number as may be provided for in the
certificate of incorporation or by-laws
irrespective of any increase made pursuant
to the provisions of section 4.3.4(b)(5)
(such number being subject, however, to
change thereafter in any manner provided by
law or in the certificate of incorporation
or by-laws). Any vacancies in the Board of
Directors effected by the provisions of
clauses (y) and (z) in the preceding
sentence may be filled by a majority of the
remaining directors.
(9) Except as set forth herein, holders of
Series A Junior Participating Preferred
Stock shall have no special voting rights
and their consent shall not be required
(except to the extent they are entitled to
vote with holders of Common Stock as set
forth herein) for taking any corporate
action.
(c) CERTAIN RESTRICTIONS.
(1) Whenever quarterly dividends or other
dividends or distributions payable on the
Series A Junior Participating Preferred
Stock as provided in Section 4.3.4(a) are in
arrears, thereafter and until all accrued
and unpaid dividends and distributions,
whether or not declared, on shares of Series
A Junior Participating Preferred 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 Junior Participating
Preferred 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 Junior
Participating Preferred Stock,
except dividends paid ratably
on the Series A Junior Participating
Preferred 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;
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(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 Junior
Participating Preferred 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 Junior Participating
Preferred Stock; or
(iv) purchase or otherwise acquire for
consideration any shares of Series A
Junior Participating Preferred
Stock, or any shares of stock
ranking on a parity with the
Series A Junior Participating
Preferred 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.
(2) 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 Section (1) of
this 4.3.4(c), purchase or otherwise acquire
such shares at such time and in such manner.
(d) REACQUIRED SHARES. Any shares of Series A Junior
Participating Preferred 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
Preferred Stock and may be reissued as part of a new
series of Preferred Stock to be created by resolution
or resolutions of the Board of Directors, subject to
the conditions and restrictions on issuance set forth
herein.
(e) LIQUIDATION, DISSOLUTION OR WINDING UP.
(1) 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 Junior Participating Preferred
Stock unless, prior thereto, the holders of
shares of Series A Junior Participating
Preferred Stock shall have received an
amount equal to $100 per share of Series A
Junior
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Participating Preferred Stock, plus an
amount equal to accrued and unpaid
dividends and distributions thereon, whether
or not declared, to the date of such payment
(the "Series A Liquidation Preference").
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 Junior
Participating Preferred Stock unless, prior
thereto, the holders of shares of Common
Stock shall have received an amount per
share (the "Common Adjustment") equal to the
quotient obtained by dividing (i) the Series
A Liquidation Preference by (ii) 100 (as
appropriately adjusted as set forth in
subparagraph (3) below to reflect such
events as stock splits, stock dividends and
recapitalizations with respect to the Common
Stock) (such number in clause (ii), the
"Adjustment 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 Junior Participating
Preferred Stock and Common Stock,
respectively, holders of Series A Junior
Participating Preferred Stock and holders of
shares of Common Stock shall receive their
ratable and proportionate share of the
remaining assets to be distributed in the
ratio of the Adjustment Number to 1 with
respect to such Preferred Stock and Common
Stock, on a per share basis, respectively.
(2) 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 preferred stock, if
any, which rank on a parity with the Series
A Junior Participating Preferred Stock, then
such remaining assets shall be distributed
ratably to the holders of the Series A
Junior Participating Preferred Stock and
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
Stock.
(3) In the event the Corporation shall at any
time after the Rights Declaration Date (i)
declare any dividend on Common Stock payable
in shares of Common Stock, (ii) subdivide
the outstanding Common Stock, or (iii)
combine the outstanding Common Stock into a
smaller number of shares, then in each such
case the Adjustment Number in effect
immediately prior to such event shall be
adjusted by multiplying such Adjustment
Number by a fraction the numerator of which
is the number of shares of Common Stock
outstanding immediately after such event and
the denominator of which is the number of
shares of Common Stock that were outstanding
immediately prior to such event.
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(f) CONSOLIDATION, MERGER, ETC. In case the Corporation
shall enter into any consolidation, merger,
combination or other transaction in which the shares
of Common Stock 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 Junior Participating Preferred 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 100 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 share of
Common Stock is changed or exchanged. In the event
the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common
Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock, or (iii)
combine the outstanding Common Stock into a smaller
number of shares, then in each such case the amount
set forth in the preceding sentence with respect to
the exchange or change of shares of Series A
Junior Participating Preferred Stock shall be
adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common
Stock outstanding immediately after such event and
the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior
to such event.
(g) NO REDEMPTION. The shares of Series A Junior
Participating Preferred Stock shall not be
redeemable.
(h) RANKING. The Series A Junior Participating Preferred
Stock shall rank junior to all other series of the
Corporation's Preferred Stock as to the payment of
dividends and the distribution of assets, unless the
terms of any such series shall provide otherwise.
(i) AMENDMENT. At any time when any shares of Series A
Junior Participating Preferred Stock are outstanding,
the Amended and Restated Certificate of Incorporation
of the Corporation shall not be amended in any manner
which would materially alter or change the powers,
preferences or special rights of the Series A Junior
Participating Preferred Stock so as to affect them
adversely without the affirmative vote of the holders
of a majority or more of the outstanding shares of
Series A Junior Participating Preferred Stock, voting
separately as a class.
(j) FRACTIONAL SHARES. Series A Junior Participating
Preferred Stock may be issued in fractions of a share
which shall entitle the holder, in proportion to such
holder's 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 Junior Participating
Preferred Stock.
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