Exhibit 4.1


 


AMENDED AND RESTATED


 


CERTIFICATE OF INCORPORATION


 


OF


 


CF INDUSTRIES HOLDINGS, INC.


 










 


Pursuant to Sections 241 and 245 of the


Delaware General Corporation Law


 










 


CF Industries
Holdings, Inc., a corporation organized and existing under the General
Corporation Law of the State of Delaware (the “DGCL”), does hereby
certify as follows:


 


1.                                       The name of the corporation is CF Industries
Holdings, Inc. (the “Corporation”). 
The Corporation was originally incorporated under the name CF Industries
Holdings, Inc.  The original
Certificate of Incorporation of the Corporation was filed with the Secretary of
State of the State of Delaware on April 15, 2005.


 


2.                                       The Corporation has not received payment for
any of its stock.


 


3.                                       This Amended and Restated Certificate of
Incorporation was duly adopted by the Board of Directors of the Corporation
(the “Board of Directors”) in accordance with Sections 241 and 245 of the DGCL.


 


The text of the Certificate
of Incorporation is hereby amended and restated in its entirety to read as
follows:


 


ARTICLE I


 


The name of the Corporation is CF Industries
Holdings, Inc.


 


ARTICLE II


 


The
address of the registered office of the Corporation in the State of Delaware is
1209 Orange Street, Wilmington, County of New Castle.  The name of its registered agent is The
Corporation Trust Company.


 





















 


ARTICLE III


 


The
purpose of the Corporation is to engage in any lawful act or activity for which
a corporation may be organized under the DGCL.


 


ARTICLE IV


 


(A)                              Authorized
Capital Stock.  The total
number of shares of stock which the Corporation shall have authority to issue
is 550,000,000 shares of capital stock, consisting of (i) 500,000,000
shares of common stock, par value $0.01 per share (the “Common Stock”) and
(ii) 50,000,000 shares of preferred stock, par value $0.01 per share (the
“Preferred Stock”).


 


(B)                                Preferred
Stock.  Except as provided
in Article IV(C) with respect to Series A Junior Participating
Preferred Stock (as hereinafter defined), the Board of Directors is hereby
expressly authorized to provide for the issuance of all or any shares of the
Preferred Stock in one or more classes or series, and to fix for each such
class or series such voting powers, full or limited, or no voting powers, and
such designations, preferences and relative, participating, optional or other
special rights and such qualifications, limitations or restrictions thereof, as
shall be stated and expressed in the resolution or resolutions adopted by the
Board of Directors providing for the issuance of such class or series,
including, without limitation, the authority to provide that any such class or
series may be (i) subject to redemption at such time or times and at such
price or prices; (ii) entitled to receive dividends (which may be cumulative
or non-cumulative) at such rates, on such conditions, and at such times, and
payable in preference to, or in such relation to, the dividends payable on any
other class or classes or any other series; (iii) entitled to such rights
upon the dissolution of, or upon any distribution of the assets of, the
Corporation; or (iv) convertible into, or exchangeable for, shares of any
other class or classes of stock, or of any other series of the same or any
other class or classes of stock, of the Corporation at such price or prices or
at such rates of exchange and with such adjustments; all as may be stated in
such resolution or resolutions.


 


(C)                                Series A
Junior Participating Preferred Stock. There is hereby created a
series of Preferred Stock, designated Series A Junior Participating
Preferred Stock having the terms, rights and privileges set forth in
Exhibit A attached hereto.


 


(D)                               Power to
Sell and Purchase Shares.  Subject to the requirements of applicable
law, the Corporation shall have the power to issue and sell all or any part of
any shares of any class of stock herein or hereafter authorized to such
persons, and for such consideration, as the Board of Directors shall from time
to time, in its discretion, determine, whether or not greater consideration
could be received upon the issue or sale of the same number of shares of
another class, and as otherwise permitted by law.  Subject to the requirements of applicable
law, the Corporation shall have the power to purchase any shares of any class
of stock herein or hereafter authorized from such persons, and for such
consideration, as the Board of Directors shall from time to time, in its
discretion, determine, whether or not less consideration could be paid upon the
purchase of the same number of shares of another class, and as otherwise
permitted by law.


 


2





















 


ARTICLE V


 


The following provisions are
inserted for the management of the business and the conduct of the affairs of
the Corporation, and for further definition, limitation and regulation of the
powers of the Corporation and of its directors and stockholders:


 


(A)                              The
business and affairs of the Corporation shall be managed by or under the
direction of the Board of Directors.


 


(B)                                The Board
of Directors shall consist of not less than 3 or more than 15 members, the
exact number of which shall be fixed from time to time by resolution adopted by
the affirmative vote of a majority of the entire Board of Directors.


 


(C)                                The
directors shall be divided into three classes, designated Class I,
Class II and Class III.  Each
class shall consist, as nearly as may be possible, of one-third of the total
number of directors constituting the entire Board of Directors.  The initial division of the Board of
Directors into classes shall be made by the decision of the affirmative vote of
a majority of the entire Board of Directors. 
The term of the initial Class I directors shall terminate on the
date of the 2006 annual meeting; the term of the initial Class II
directors shall terminate on the date of the 2007 annual meeting; and the term
of the initial Class III directors shall terminate on the date of the 2008
annual meeting.  At each succeeding
annual meeting of stockholders beginning in 2006, successors to the class of
directors whose term expires at that annual meeting shall be elected for a
three-year term.  If the number of
directors is changed, any increase or decrease shall be apportioned among the
classes so as to maintain the number of directors in each class as nearly equal
as possible, and any additional director of any class elected to fill a vacancy
resulting from an increase in such class shall hold office for a term that
shall coincide with the remaining term of that class, but in no case will a
decrease in the number of directors shorten the term of any incumbent director.


 


(D)                               A director
shall hold office until the annual meeting for the year in which his or her
term expires and until his or her successor shall be elected and shall qualify,
subject, however, to prior death, resignation, retirement, disqualification or
removal from office.


 


(E)                                 Subject to
the terms of any one or more classes or series of Preferred Stock, any vacancy
on the Board of Directors that results from an increase in the number of
directors may only be filled by a majority of the Board of Directors then in
office, provided that a quorum is present, and any other vacancy occurring on
the Board of Directors may only be filled by a majority of the Board of
Directors then in office, even if less than a quorum, or by a sole remaining
director.  Any director of any class
elected to fill a vacancy resulting from an increase in the number of directors
of such class shall hold office for a term that shall coincide with the
remaining term of that class.  Any
director elected to fill a vacancy not resulting from an increase in the number
of directors shall have the same remaining term as that of his
predecessor.  Subject to the rights, if
any, of the holders of shares of Preferred Stock then outstanding, any or all
of the directors of the Corporation may be removed from office at any time, but
only for


 


3





















 


cause and
only by the affirmative vote of the holders of at least two-thirds of the
voting power of the Corporation’s then issued and outstanding capital stock
entitled to vote generally at an election of directors of the Corporation.  Notwithstanding the foregoing, whenever the
holders of any one or more classes or series of Preferred Stock issued by the
Corporation shall have the right, voting separately by class or series, to
elect directors at an annual or special meeting of stockholders, the election,
term of office, filling of vacancies and other features of such directorships
shall be governed by the terms of this Amended and Restated Certificate of
Incorporation applicable thereto, and such directors so elected shall not be
divided into classes pursuant to this Article V unless expressly
provided by such terms.


 


(F)                                 In
addition to the powers and authority hereinbefore or by statute expressly
conferred upon them, the directors are hereby empowered to exercise all such
powers and do all such acts and things as may be exercised or done by the
Corporation, subject, nevertheless, to the provisions of the DGCL, this Amended
and Restated Certificate of Incorporation, and any By-Laws adopted by the
stockholders; provided, however, that no By-Laws hereafter
adopted by the stockholders shall invalidate any prior act of the directors
which would have been valid if such By-Laws had not been adopted.


 


ARTICLE VI


 


No director shall be personally
liable to the Corporation or any of its stockholders for monetary damages for
breach of fiduciary duty as a director, except to the extent such exemption
from liability or limitation thereof is not permitted under the DGCL as the
same exists or may hereafter be amended. 
If the DGCL is amended hereafter to authorize the further elimination or
limitation of the liability of directors, then the liability of a director of
the Corporation shall be eliminated or limited to the fullest extent authorized
by the DGCL, as so amended.  Any repeal
or modification of this Article VI shall not adversely affect any
right or protection of a director of the Corporation existing at the time of
such repeal or modification with respect to acts or omissions occurring prior
to such repeal or modification.


 


ARTICLE VII


 


The Corporation shall indemnify its
directors and officers to the fullest extent authorized or permitted by law, as
now or hereafter in effect, and such right to indemnification shall continue as
to a person who has ceased to be a director or officer of the Corporation and
shall inure to the benefit of his or her heirs, executors and personal and
legal representatives; provided, however, that, except for proceedings
to enforce rights to indemnification, the Corporation shall not be obligated to
indemnify any director or officer (or his or her heirs, executors or personal
or legal representatives) in connection with a proceeding (or part thereof)
initiated by such person unless such proceeding (or part thereof) was
authorized or consented to by the Board of Directors.  The right to indemnification conferred by
this Article VII shall include the right to be paid by the
Corporation the expenses incurred in defending or otherwise participating in
any proceeding in advance of its final disposition.


 


4





















 


The Corporation may, to the extent authorized from time to time by the
Board of Directors, provide rights to indemnification and to the advancement of
expenses to employees and agents of the Corporation similar to those conferred
in this Article VII to directors and officers of the Corporation.


 


The rights to indemnification and to the advancement of expenses
conferred in this Article VII shall not be exclusive of any other
right which any person may have or hereafter acquire under this Amended and
Restated Certificate of Incorporation, the By-Laws of the Corporation, any
statute, agreement, vote of stockholders or disinterested directors or
otherwise.


 


Any repeal or modification of this Article VII shall not
adversely affect any rights to indemnification and to the advancement of
expenses of a director or officer of the Corporation existing at the time of
such repeal or modification with respect to any acts or omissions occurring
prior to such repeal or modification.


 


ARTICLE VIII


 


Any action required or permitted to
be taken by the stockholders of the Corporation must be effected at a duly
called annual or special meeting of stockholders of the Corporation, and the
ability of the stockholders to consent in writing to the taking of any action
is hereby specifically denied.


 


ARTICLE IX


 


(A)                              Meetings
of stockholders may be held within or without the State of Delaware, as the
By-Laws may provide.  The books of the
Corporation may be kept (subject to any provision contained in the DGCL)
outside the State of Delaware at such place or places as may be designated from
time to time by the Board of Directors or in the By-Laws of the Corporation.


 


(B)                                Unless
otherwise required by law, special meetings of stockholders, for any purpose or
purposes, may be called by (i) the Chairman of the Board of Directors, if
there be one, (ii) the President or (iii) the Board of Directors.  The ability of the stockholders to call a
special meeting of stockholders is hereby specifically denied.


 


ARTICLE X


 


In furtherance and not in
limitation of the powers conferred upon it by the laws of the State of
Delaware, the Board of Directors shall have the power to adopt, amend, alter or
repeal the Corporation’s By-Laws.  The
affirmative vote of at least a majority of the entire Board of Directors shall
be required to adopt, amend, alter, change or repeal the Corporation’s
By-Laws.  The Corporation’s By-Laws also
may be adopted, amended, altered, changed or repealed by the affirmative vote
of the holders of at least two-thirds of the voting power of the Corporation’s
then issued and outstanding capital stock entitled to vote generally at an
election of directors of the Corporation.


 


5





















 


ARTICLE XI


 


The Corporation reserves the right
to amend, alter, change or repeal any provision contained in this Amended and
Restated Certificate of Incorporation in the manner now or hereafter prescribed
in this Amended and Restated Certificate of Incorporation, the Corporation’s
By-Laws or the DGCL, and all rights herein conferred upon stockholders are
granted subject to such reservation; provided, however, that,
notwithstanding any other provision of this Amended and Restated Certificate of
Incorporation (and in addition to any other vote that may be required by law),
the affirmative vote of the holders of at least two-thirds of the voting power
of the Corporation’s then issued and outstanding capital stock entitled to vote
generally at an election of directors of the Corporation shall be required to
amend, alter, change or repeal, or to adopt any provision inconsistent with Articles
V, VIII, IX and X of this Amended and Restated Certificate
of Incorporation or this Article XI.


 


6





















 


IN WITNESS WHEREOF, the Corporation has caused this Amended and
Restated Certificate of Incorporation to be executed on its behalf this 10th
day of August, 2005.


 


	
   

  	
  CF
  INDUSTRIES HOLDINGS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:
  

  	
    /s/
  Douglas C. Barnard

  	
   

  
	
   

  	
   

  	
  Name:
  Douglas C. Barnard

  
	
   

  	
   

  	
  Title:
  Vice President, General Counsel, and Secretary

  



 


7





















 


Exhibit A


 


SERIES A JUNIOR PARTICIPATING PREFERRED STOCK


 


Section 1.  Designation and Amount.  The shares of such series shall be designated
as “Series A Junior Participating Preferred Stock” and the number of
shares constituting such series shall be 500,000.


 


Section 2.  Dividends and Distributions.


 


(a)  Subject to the
prior and superior rights of the holder 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
15th day of May, August, November and February 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) $0.01 or (b) subject to the provision for
adjustment hereinafter set forth, 1,000 times the aggregate per share amount of
all cash dividends, and 1,000 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,
par value $0.01 per share, of the Corporation (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 August 10, 2005 (the “Effective 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 which is the number of shares
of Common Stock that were outstanding immediately prior to such event.


 


(b)  The Corporation
shall declare a dividend or distribution on the Series A Junior
Participating Preferred Stock as provided in Paragraph (A) 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 $0.01 per share
on the Series A Junior Participating


 


A-8





















 


Preferred 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 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.


 


Section 3.  Voting Rights.  The holders of shares of Series A Junior
Participating Preferred Stock shall have the following voting rights:


 


(A)  Subject to the
provision for adjustment hereinafter set forth, each share of Series A
Junior Participating Preferred Stock shall entitle the holder thereof to 1,000
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 Effective 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 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.


 


(B)  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.


 


(C)  (i)  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 mark the beginning of a
period (herein called a “default period”) which shall extend until such time
when all accrued and unpaid


 


A-9





















 


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.


 


(ii)  During any
default period, such voting right of the holders of Series A Junior
Participating Preferred Stock may be exercised initially at a special meeting
called pursuant to subparagraph (iii) of this Section 3(C) 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.  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.


 


(iii)  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 Paragraph (C)(iii) 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
Paragraph (C)(iii), no such special meeting shall be called during the


 


A-10





















 


period within 60 days immediately preceding the date fixed for the next
annual meeting of the stockholders.


 


(iv)  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 Paragraph
(C)(ii) of this Section 3) 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 Paragraph (C) 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.


 


(v)  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 Paragraph (C)(ii) of this Section 3
(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.


 


(D)  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.


 


Section 4.  Certain Restrictions.


 


(A)  Whenever quarterly
dividends or other dividends or distributions payable on the Series A
Junior Participating Preferred 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 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,


 


A-11





















 


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;


 


(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.


 


(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 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.


 


Section 6.  Liquidation, 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 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 $1,000 per share of Series A 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


 


A-12





















 


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) 1,000 (as appropriately adjusted as set forth in
subparagraph (C) 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.


 


(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 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 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.


 


(C)  In the event the
Corporation shall at any time after the Effective 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.


 


Section 7.  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 1,000 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 Effective 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


 


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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.


 


Section 8.  No Redemption.  The shares of Series A Junior
Participating Preferred Stock shall not be redeemable.


 


Section 9.  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.


 


Section 10.  Amendment.  At any time when any shares of Series A
Junior Participating Preferred Stock are outstanding, neither the Amended and
Restated Certificate of Incorporation of the Corporation nor this Certificate
of Designation shall 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.


 


Section 11.  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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