exv4wb







EXHIBIT 4.B




4.99% CONVERTIBLE PERPETUAL PREFERRED STOCK




     1. Number and Designation. 900,000 shares of the preferred stock of the Corporation shall be
designated as “4.99% Convertible Perpetual Preferred Stock” (the “Preferred Stock”).



     2. Certain Definitions. As used in this Certificate, the following terms shall have the
meanings defined in this Section 2. Any capitalized term not otherwise defined herein shall have
the meaning set forth in the Amended and Restated Certificate of Incorporation, unless the context
otherwise requires:



     “Additional Shares” shall have the meaning assigned to it in Section 9 hereof.



     “Affiliate” of any Person means any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such Person. For the purposes of this
definition, “control” when used with respect to any Person means the power to direct the management
and policies of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.



     “Agent Members” shall have the meaning assigned to it in Section 17(a) hereof.



     “Amended and Restated Certificate of Incorporation” shall have the meaning assigned to it in
the preamble to this Certificate.



     “Board of Directors” shall have the meaning assigned to it in the preamble to this
Certificate, and shall include any duly authorized committee thereof.



     “Business Day” means any day other than a Saturday, Sunday or a day on which state or U.S.
federally chartered banking institutions in New York, New York are not required to be open.



     “Capital Stock” of any Person means any and all shares, interests, participations or other
equivalents however designated of corporate stock or other equity participations, including
partnership interests, whether general or limited, of such Person and any rights (other than debt
securities convertible or exchangeable into an equity interest), warrants or options to acquire an
equity interest in such Person.



     “Certificate” means this Certificate of Designations.



 









 




     “Closing Sale Price” of the shares of Common Stock or other Capital Stock or similar equity
interests on any date means the closing sale price per share (or, if no closing sale price is
reported, the average of the closing bid and ask prices or, if more than one in either case, the
average of the average closing bid and the average closing ask prices) on such date as reported on
the New York Stock Exchange or such other national or regional exchange or market on which shares
of Common Stock or such other Capital Stock or similar equity interests are then listed or quoted.
In the absence of such quotations, the Board of Directors shall be entitled to determine the
“Closing Sale Price” on the basis it considers appropriate, which determination shall be
conclusive. The “Closing Sale Price” shall be determined without reference to any extended or
after hours trading.



     “Common Stock” means any stock of any class of the Corporation that has no preference in
respect of dividends or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation and that is not subject to redemption by
the Corporation. Subject to the provisions of Section 11, however, shares issuable on conversion
or redemption of the Preferred Stock shall include only shares of the Common Stock, par value $3.00
per share, or shares of any class or classes resulting from any reclassification or
reclassifications thereof and that have no preference in respect of dividends or of amounts payable
in the event of any voluntary or involuntary liquidation, dissolution or winding up of the
Corporation and which are not subject to redemption by the Corporation; provided that if at any
time there shall be more than one such resulting class, the shares of each such class then so
issuable on conversion shall be substantially in the proportion that the total number of shares of
such class resulting from all such reclassifications bears to the total number of shares of all
such classes resulting from all such reclassifications. From and after the time that shares of
Preferred Stock are convertible into shares of Public Acquirer Common Stock pursuant to Section
9(b)(v), references to Common Stock herein shall, as applicable, become references to such Public
Acquirer Common Stock.



     “Conversion Agent” shall have the meaning assigned to it in Section 19(a) hereof.



     “Conversion Price” per share of Preferred Stock means, on any date, the Liquidation Preference
divided by the Conversion Rate in effect on such date.



     “Conversion Rate” means 76.7754 shares of Common Stock per $1,000 liquidation preference of
Preferred Stock, subject to adjustment pursuant to Section 10 hereof.



     “Corporation” shall have the meaning assigned to it in the preamble to this Certificate, and
shall include any successor to such Corporation.



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     “Current Market Price” shall mean the average of the daily Closing Sale Prices per share of
Common Stock for each of the ten consecutive Trading Days ending on the earlier of such date of
determination and the day before the “ex-date” with respect to the issuance, distribution,
subdivision or combination requiring such computation. For purposes of this paragraph, the term
“ex-date,” (1) when used with respect to any issuance or distribution, means the first date on
which the Common Stock trades, regular way, on the relevant exchange or in the relevant market from
which the Closing Sale Price was obtained without the right to receive such issuance or
distribution, and (2) when used with respect to any subdivision or combination of shares of Common
Stock, means the first date on which the Common Stock trades, regular way, on such exchange or in
such market after the time at which such subdivision or combination becomes effective. If another
distribution to which Section 10(d) applies occurs during the period applicable for calculating
“Current Market Price” pursuant to this definition, the “Current Market Price” shall be calculated
for such period in a manner determined by the Board of Directors to reflect the impact of such
issuance, distribution, subdivision or combination on the Closing Sale Price of the Common Stock
during such period.



     “Depositary” means DTC or its successor depositary.



     “Dividend Payment Date” means January 1, April 1, July 1 and October 1 of each year,
commencing July 1, 2005, or if any such date is not a Business Day, on the next succeeding Business
Day.



     “Dividend Period” shall mean, with respect to Preferred Stock, the period beginning on, and
including, a Dividend Payment Date and ending on, and excluding, the immediately succeeding
Dividend Payment Date and, with respect to Parity Stock, shall have a meaning correlative thereto.



     “DTC” shall mean The Depository Trust Company, New York, New York.



     “Effective Date” shall have the meaning assigned to it in Section 9(b) hereof.



     “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.



     “Fair Market Value” shall mean the amount that a willing buyer would pay a willing seller in
an arm’s-length transaction.



     “Fundamental Change” shall mean any transaction or event (whether by means of an exchange
offer, liquidation, tender offer, consolidation, merger, combination, reclassification,
recapitalization or otherwise) in connection with which 90% or more of the Common Stock of the
Corporation is exchanged for, converted into, acquired for or constitutes solely the right to
receive, consideration which is not at least 90% shares of common stock that (i) is listed on, or
immediately after the transaction or event will be listed on, a United States



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national securities exchange, or (ii) is approved, or immediately after the transaction or
event will be approved, for quotation on a United States national securities exchange or quotation
thereof in an inter-dealer quotation system of any registered United States national securities
association.




     “Fundamental Change Redemption Date” shall have the meaning assigned to it in Section 13(a)
hereof.



     “Global Preferred Share” shall have the meaning assigned to it in Section 17(a) hereof.



     “Global Shares Legend” shall have the meaning assigned to it in Section 17(a) hereof.



     “Junior Stock” shall have the meaning assigned to it in Section 3(a) hereof.



     “Liquidation Preference” shall have the meaning assigned to it in Section 5(a) hereof.



     “Mandatory Conversion Date” shall have the meaning assigned to it in Section 6(b) hereof.



     “Officer” means the Chairman of the Board, the Chief Executive Officer, a Vice Chairman of the
Board, the President, any Vice President, the Treasurer, any Assistant Treasurer, the Controller,
any Assistant Controller, the Secretary or any Assistant Secretary of the Corporation.



     “Outstanding” means, when used with respect to Preferred Stock, as of any date of
determination, all shares of Preferred Stock outstanding as of such date; provided, however, that,
if (i) such Preferred Stock is to be redeemed, (ii) notice of such redemption has been duly given
pursuant to this Certificate and (iii) the Paying Agent holds, in accordance with this Certificate,
money sufficient to pay in full the Redemption Price for the shares of Preferred Stock to be
redeemed, then immediately after such Redemption Date such shares of Preferred Stock shall cease to
be “Outstanding”; provided further that, in determining whether the holders of Preferred Stock have
given any request, demand, authorization, direction, notice, consent or waiver or taken any other
action hereunder, Preferred Stock owned by the Corporation or its Affiliates shall be deemed not to
be “Outstanding”, except that, in determining whether the Registrar shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent, waiver or other action,
only Preferred Stock which the Registrar has actual knowledge of being so owned shall be deemed not
to be “Outstanding”.



     “Parity Stock” shall have the meaning assigned to it in Section 3(b) hereof.



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     “Paying Agent” shall have the meaning assigned to it in Section 19(a) hereof.



     “Person” means an individual, a corporation, a partnership, a limited liability company,
limited partnership, an association, a trust or any other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.



     “Preferred Stock” shall have the meaning assigned to it in Section 1 hereof.



     “Preferred Stock Director” shall have the meaning assigned to it in Section 14(c) hereof.



     “Public Acquirer Fundamental Change” means any Fundamental Change that would otherwise
obligate the Corporation to increase the Conversion Rate as described in Section 9 where the
acquirer has a class of common stock traded on a national securities exchange or quoted on the
Nasdaq National Market or which will be so traded or quoted when issued or exchanged in connection
with such Fundamental Change (the “Public Acquirer Common Stock”). If an acquirer does not itself
have a class of common stock satisfying the foregoing requirement, it will be deemed to have Public
Acquirer Common Stock if a corporation that directly or indirectly owns at least a majority of the
acquirer, has a class of common stock satisfying the foregoing requirement, and all references to
Public Acquirer Common Stock will refer to such class of common stock. Majority owned for these
purposes means having the “beneficial ownership” (as defined in Rule 13d-3 under the Exchange Act)
of more than 50% of the total voting power of all shares of the respective entity’s Capital Stock
that are entitled to vote generally in the election of directors.



     “Record Date” means (i) with respect to the dividends payable on January 1, April 1, July 1
and October 1 of each year, December 15, March 15, June 15 and September 15 of each year,
respectively, or such other record date, not more than 60 days and not less than 10 days preceding
the applicable Dividend Payment Date, as shall be fixed by the Board of Directors and (ii) solely
for the purpose of adjustments to the Conversion Rate pursuant to Section 10 with respect to any
dividend, distribution or other transaction or event in which the holders of Common Stock have the
right to receive any cash, securities or other property or in which the Common Stock (or other
applicable security) is exchanged for or converted into any combination of cash, securities or
other property, the date fixed for determination of stockholders entitled to receive such cash,
securities or other property (whether such date is fixed by the Board of Directors or by statute,
contract or otherwise).



     “Redemption Date” means a date that is fixed for redemption of the Preferred Stock by the
Corporation in accordance with Section 7 hereof.



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     “Redemption Price” means an amount equal to the Liquidation Preference per share of Preferred
Stock being redeemed, plus an amount equal to any accumulated and unpaid dividends, (whether or not
declared), including liquidated damages, if any, thereon to, but excluding, the Redemption Date or
Fundamental Change Redemption Date (as applicable); provided that if the Redemption Date shall
occur after a Record Date and before the related Dividend Payment Date, the Redemption Price shall
be only an amount equal to the Liquidation Preference per share of Preferred Stock being redeemed
and will not include any amount in respect of dividends declared and payable on such corresponding
Dividend Payment Date.



     “Registrar” shall have the meaning assigned to it in Section 15 hereof.



     “Rights” shall have the meaning assigned to it in Section 12 hereof.



     “Rights Plan” shall have the meaning assigned to it in Section 12 hereof.



     “Securities Act” means the Securities Act of 1933, as amended.



     “Senior Stock” shall have the meaning assigned to it in Section 3(c) hereof.



     “Stock Price” shall have the meaning assigned to it in Section 9(b) hereof.



     “Subsidiary” means (a) a corporation, a majority of whose Capital Stock with voting power,
under ordinary circumstances, to elect directors is, at the date of determination, directly or
indirectly owned by the Corporation, by one or more Subsidiaries of the Corporation or by the
Corporation and one or more Subsidiaries of the Corporation, (b) a partnership in which the
Corporation or a Subsidiary of the Corporation holds a majority interest in the equity capital or
profits of such partnership, or (c) any other Person (other than a corporation) in which the
Corporation, a Subsidiary of the Corporation or the Corporation and one or more Subsidiaries of the
Corporation, directly or indirectly, at the date of determination, has (i) at least a majority
ownership interest or (ii) the power to elect or direct the election of a majority of the directors
or other governing body of such Person.



     “Trading Day” means a day during which trading in securities generally occurs on the New York
Stock Exchange or, if the Common Stock is not listed on the New York Stock Exchange, on the
principal other national or regional securities exchange on which the Common Stock is then listed
or, if the Common Stock is not listed on a national or regional securities exchange, on Nasdaq or,
if the Common Stock is not quoted on Nasdaq, on the principal other market on which the Common
Stock is then traded or, if the Common Stock is not so traded on a principal other market, on the
New York Stock Exchange.



     “Transfer Agent” shall have the meaning assigned to it in Section 15 hereof.



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     3. Rank. The Preferred Stock shall, with respect to dividend rights and rights upon
liquidation, winding-up or dissolution, rank:



     (a) senior to the Common Stock and any other class or series of Capital Stock of the
Corporation, the terms of which provide that such class or series ranks junior to the Preferred
Stock as to dividend rights and rights on liquidation, winding-up and dissolution of the
Corporation (collectively, together with any warrants, rights, calls or options exercisable for or
convertible into such Capital Stock, the “Junior Stock”);



     (b) on a parity with any other class or series of Capital Stock of the Corporation, the terms
of which provide that such class or series ranks on a parity with the Preferred Stock as to
dividend rights and rights on liquidation, winding-up and dissolution of the Corporation
(collectively, together with any warrants, rights, calls or options exercisable for or convertible
into such Capital Stock, the “Parity Stock”); and



     (c) junior to each class or series of Capital Stock of the Corporation (other than Common
Stock), the terms of which do not expressly provide that such class or series ranks junior to or on
a parity with the Preferred Stock as to dividend rights and rights on liquidation, winding-up and
dissolution of the Corporation (collectively, together with any warrants, rights, calls or options
exercisable for or convertible into such Capital Stock, the “Senior Stock”).



     4. Dividends. (a) Holders of Preferred Stock shall be entitled to receive, when, as and if
declared by the Board of Directors, out of funds legally available for the payment of dividends,
cumulative cash dividends on each Outstanding share of Preferred Stock at the annual rate of 4.99%
of the Liquidation Preference per share; provided however that such holders will not be entitled to
receive any dividends that may be declared by the Board of Directors on the Common Stock unless
such holders’ shares of Preferred Stock have been converted to Common Stock as set forth in Section
8 hereof prior to or on the Record Date for the payment of such dividends. Such dividends shall be
payable in arrears in equal amounts quarterly on each Dividend Payment Date, beginning July 1,
2005, in preference to and in priority over dividends on any Junior Stock but subject to the rights
of any holders of Senior Stock or Parity Stock.



     (b) Dividends shall be cumulative from the initial date of issuance or the last Dividend
Payment Date for which accumulated dividends were paid, whichever is later, whether or not funds of
the Corporation are legally available for the payment of such dividends and whether or not the
Board of Directors declares the dividends. Each such dividend shall be payable to the holders of
record of shares of the Preferred Stock, as they appear on the Corporation’s stock register at the
close of business on a Record Date. Accumulated and unpaid dividends for any past Dividend Periods
may be declared and paid at any time, without reference to any Dividend Payment Date, to holders of
record on



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such date, not more than 60 nor less than 10 days preceding the payment date thereof, as may
be fixed by the Board of Directors.




     (c) Accumulated and unpaid dividends for any past Dividend Period (whether or not declared)
shall cumulate at the annual rate of 4.99% and shall be payable in cash in the manner set forth in
this Section 4.



     (d) The amount of dividends payable for each full Dividend Period for the Preferred Stock
shall be computed by dividing the annual dividend rate by four. The amount of dividends payable on
the Preferred Stock for the initial Dividend Period, or for any other period shorter or longer than
a full Dividend Period (or amounts determined with respect thereto), shall be computed on the basis
of a 360-day year consisting of twelve 30-day months. Holders of Preferred Stock shall not be
entitled to any dividends, whether payable in cash, property or stock, in excess of cumulative
dividends, as herein provided, on the Preferred Stock.



     (e) No dividend shall be declared or paid, or funds set apart for the payment of any dividend
or other distribution, whether in cash, obligations or shares of Capital Stock of the Corporation
or other property, directly or indirectly, upon any shares of Junior Stock or Parity Stock, nor
shall any shares of Junior Stock or Parity Stock be redeemed, repurchased or otherwise acquired for
consideration by the Corporation or any of its subsidiaries through a sinking fund or otherwise, in
each case unless all accumulated and unpaid dividends, including liquidated damages, if any,
through the most recent Dividend Payment Date (whether or not there are funds of the Corporation
legally available for the payment of dividends) on the shares of Preferred Stock and any Parity
Stock for all preceding Dividend Periods have been paid in full or set apart for payment; provided,
however, that, notwithstanding any provisions of this Section 4(e) to the contrary, the Corporation
or any of its subsidiaries may redeem, repurchase or otherwise acquire for consideration Junior
Stock or Parity Stock with Junior Stock or pursuant to a purchase or exchange offer made on the
same terms to all holders of Preferred Stock and such Parity Stock. Furthermore, for the avoidance
of doubt, the foregoing provisions of this Section 4(e) shall not apply to any shares of Junior
Stock or Parity Stock surrendered to the Company upon a “cashless” exercise of stock options or
withheld upon the exercise of stock options or the vesting of restricted stock to satisfy
applicable withholding tax obligations. When dividends are not paid in full, as aforesaid, upon
the shares of Preferred Stock, all dividends declared on the Preferred Stock and any other Parity
Stock shall be paid pro rata so that the amount of dividends so declared on the shares of Preferred
Stock and each such other class or series of Parity Stock shall in all cases bear to each other the
same ratio as accumulated dividends on the shares of Preferred Stock and such class or series of
Parity Stock bear to each other.



     5. Liquidation Preference. (a) In the event of any liquidation, dissolution or winding-up of
the Corporation resulting in a payment or distribution



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of assets to the holders of any class or series of the Capital Stock of the Corporation,
whether voluntary or involuntary, before any payment or distribution of the Corporation’s assets
(whether capital or surplus) shall be made to or set apart for the holders of Junior Stock, but
after any payments or distributions are made on any of the Corporation’s indebtedness and to
holders of Senior Stock, holders of Preferred Stock shall be entitled to receive $1,000 per share
of Preferred Stock (the “Liquidation Preference”) plus an amount equal to all dividends (whether or
not declared) accumulated and unpaid thereon, including liquidated damages, if any, to the date of
final payment or distribution to such holders, but shall not be entitled to any further payment or
other participation in any distribution of the assets of the Corporation. If, upon any
liquidation, dissolution or winding-up of the Corporation, whether voluntary or involuntary, the
Corporation’s assets, or proceeds thereof, distributable among the holders of Preferred Stock are
insufficient to pay in full the preferential amount aforesaid and liquidating payments on any
Parity Stock, then such assets, or the proceeds thereof, shall be distributed among the holders of
the Preferred Stock and any other Parity Stock equally and ratably in proportion to the respective
amounts that would be payable on such shares of Preferred Stock and any such other Parity Stock if
all amounts payable thereon were paid in full.




     (b) Neither the voluntary sale, conveyance, exchange or transfer, for cash, shares of stock,
securities or other consideration, of all or substantially all of the Corporation’s property or
assets, nor the consolidation, merger or amalgamation of the Corporation with or into any
corporation or the consolidation, merger or amalgamation of any corporation with or into the
Corporation shall be deemed to be a voluntary or involuntary liquidation, dissolution or winding-up
of the Corporation.



     (c) Subject to the rights of the holders of any Parity Stock, after payment has been made in
full to the holders of the Preferred Stock, as provided in this Section 5, holders of Junior Stock
shall, subject to the respective terms and provisions (if any) applying thereto, be entitled to
receive any and all assets remaining to be paid or distributed, and the holders of Preferred Stock
shall not be entitled to share therein.



     6. Mandatory Conversion. (a) At any time on or after April 5, 2010, the Corporation shall have
the right, at its option, to cause all Outstanding shares of the Preferred Stock to be
automatically converted into that number of whole shares of Common Stock at then prevailing
Conversion Rate, with any resulting fractional shares of Common Stock to be settled in accordance
with Section 8(d). The Corporation may exercise its right to cause a mandatory conversion pursuant
to this Section 6(a) only if the Closing Sale Price of the Common Stock equals or exceeds 130% of
the Conversion Price then in effect for at least 20 Trading Days in any period of 30 consecutive
Trading Days, including the last Trading Day of such 30-day period, ending on the Trading Day
immediately preceding the Corporation’s issuance of a press release announcing the mandatory
conversion as described in Section 6(b).



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     (b) To exercise the mandatory conversion right described in Section 6(a), the Corporation must
issue a press release for publication on the Dow Jones News Service prior to the opening of
business on the first Trading Day following any date on which the conditions described in Section
6(a) are met, announcing such a mandatory conversion. The Corporation shall also give notice by
mail or by publication (with subsequent prompt notice by mail) to the holders of Preferred Stock,
or cause DTC to send notice to its participants that own Preferred Stock (which notice or
publication shall be given not more than four Business Days after the date of the press release),
of the mandatory conversion announcing the Corporation’s intention to convert the Preferred Stock.
The conversion date will be a date selected by the Corporation (the “Mandatory Conversion Date”)
and will be the earlier of (i) no more than five days after the date on which the Corporation
issues the press release described in this Section 6(b) and (ii) the date that such notice is sent
by DTC to its participants that own Preferred Stock.



     (c) In addition to any information required by applicable law or regulation, the press release
and notice of a mandatory conversion described in Section 6(b) shall state, as appropriate: (i) the
Mandatory Conversion Date; (ii) the number of shares of Common Stock to be issued upon conversion
of each share of Preferred Stock; (iii) the number of shares of Preferred Stock to be converted;
and (iv) that dividends on the Preferred Stock to be converted will cease to accrue on the
Mandatory Conversion Date.



     (d) On and after the Mandatory Conversion Date, dividends will cease to accrue on the
Preferred Stock called for a mandatory conversion pursuant to Section 6(a) and all rights of
holders of such Preferred Stock will terminate except for the right to receive the number of whole
shares of Common Stock issuable upon conversion thereof and cash, in lieu of any fractional shares
of Common Stock in accordance with Section 8(d). The dividend payment with respect to the Preferred
Stock for which the Mandatory Conversion Date occurs during the period commencing after the close
of business on any Dividend Record Date and ending at the close of business on the corresponding
Dividend Payment Date will be payable on such Dividend Payment Date to the record holder of such
share of Preferred Stock on such Dividend Record Date if such share has been converted after such
Dividend Record Date and prior to such Dividend Payment Date. Except as provided in the immediately
preceding sentence with respect to a mandatory conversion pursuant to Section 6(a), no payment or
adjustment will be made upon conversion of Preferred Stock for accumulated and unpaid dividends or
for dividends with respect to the Common Stock issued upon such conversion.



     (e) The Corporation may not authorize, issue a press release or give notice of any mandatory
conversion pursuant to Section 6(a) unless, prior to giving the conversion notice, all accumulated
and unpaid dividends on the Preferred Stock for Dividend Periods ended prior to the date of such
conversion notice shall have been paid in cash.




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     7. Limited Optional Redemption of the Preferred Stock. Shares of Preferred Stock shall
be redeemable at the option of the Corporation in accordance with this Section 7.



     (a) The Corporation may, at its option, redeem all Outstanding shares of Preferred Stock, in
whole but not in part, at the Redemption Price, if, on or after April 5, 2010, (i) the Closing Sale
Price of the Common Stock for 20 Trading Days within a period of 30 consecutive Trading Days ending
on the Trading Day immediately preceding the date the Corporation gives notice of such redemption
pursuant to this Section 7 equals or exceeds the Conversion Price in effect on each such Trading
Day and (ii) the total number of Outstanding shares of Preferred Stock is less than 10% of the
total number of Outstanding shares of Preferred Stock on April 15, 2005.



     (b) In the event the Corporation elects to redeem shares of Preferred Stock pursuant to this
Section 7, the Corporation shall:




     (i) send a written notice to the Registrar and Transfer Agent of the Redemption Date,
stating that all Outstanding shares of Preferred Stock are to be redeemed and the
Redemption Price, at least 35 days before the Redemption Date (unless a shorter period
shall be satisfactory to the Registrar and Transfer Agent);




     (ii) send a written notice by first class mail to each holder of record of the
Preferred Stock at such holder’s registered address or if the Preferred Stock is held by
DTC or its nominee, request that DTC send a copy of such notice to its participants, not
fewer than 10 nor more than 30 days prior to the Redemption Date stating:




     (A) the Redemption Date;




     (B) the Redemption Price;




     (C) the Conversion Price and the Conversion Ratio;




     (D) the name and address of the Paying Agent and Conversion Agent;




     (E) that shares of Preferred Stock called for redemption may be converted at
any time before 5:00 p.m., New York City time on the Business Day immediately
preceding the Redemption Date;




     (F) that holders who want to convert shares of the Preferred Stock must
satisfy the requirements set forth in Section 8 of this Certificate;



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     (G) that shares of the Preferred Stock called for redemption must be
surrendered to the Paying Agent to collect the Redemption Price;




     (H) that, unless the Corporation defaults in making payment of such Redemption
Price, dividends in respect of the shares of Preferred Stock called for redemption
will cease to accumulate on and after the Redemption Date;




     (I) the CUSIP number of the Preferred Stock; and




     (J) any other information the Corporation wishes to present; and




     (iii) (A) publish the information set forth in Section 7(b)(ii) once in a daily
newspaper printed in the English language and of general circulation in the Borough of
Manhattan, The City of New York, (B) issue a press release containing such information and
(C) publish such information on the Corporation’s web site on the World Wide Web.



     (c) The Redemption Price shall be payable in cash.



     (d) If the Corporation gives notice of redemption, then, by 12:00 p.m., New York City time, on
the Redemption Date, to the extent sufficient funds are legally available, the Corporation shall,
with respect to:




     (i) shares of the Preferred Stock held by DTC or its nominees, deposit or cause to be
deposited, irrevocably with DTC, cash sufficient to pay the Redemption Price and shall give
DTC irrevocable instructions and authority to pay the Redemption Price to holders of such
shares of the Preferred Stock; and




     (ii) shares of the Preferred Stock held in certificated form, deposit or cause to be
deposited, irrevocably with the Paying Agent cash sufficient to pay the Redemption Price
and shall give the Paying Agent irrevocable instructions and authority to pay the
Redemption Price to holders of such shares of the Preferred Stock upon surrender of their
certificates evidencing their shares of the Preferred Stock.



     (e) If on the Redemption Date, DTC and/or the Paying Agent holds or hold cash sufficient to
pay the Redemption Price for the shares of Preferred Stock delivered for redemption as set forth
herein, dividends shall cease to accumulate as of the Redemption Date on all Outstanding shares of
Preferred Stock and all rights of holders of such shares shall terminate, except for the right to
receive the Redemption Price pursuant to this Section 7.



     (f) Payment of the Redemption Price for shares of the Preferred Stock is conditioned upon
book-entry transfer of or physical delivery of certificates



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representing the Preferred Stock,
together with necessary endorsements, to the Paying Agent, or the Paying Agent’s account at DTC, at
any time after delivery of the notice of redemption.



     (g) Payment of the Redemption Price for shares of the Preferred Stock will be made (1) on the
Redemption Date, if book-entry transfer of or physical delivery of the Preferred Stock has been
made by or on the Redemption Date, or (2) if book-entry transfer of or physical delivery of the
Preferred Stock has not been made by or on the Redemption Date, at the time of such transfer or
delivery.



     (h) If the Redemption Date falls after a Record Date and before the related Dividend Payment
Date, holders of the shares of Preferred Stock at the close of business on that Record Date shall
be entitled to receive the dividend payable on those shares on the corresponding Dividend Payment
Date. The Redemption Price payable on such Redemption Date will not include any amount in respect
of dividends declared or payable on such corresponding Dividend Payment Date.



     (i) Notwithstanding the foregoing provisions of this Section 7, unless full cumulative
dividends (whether or not declared) on all Outstanding shares of Preferred Stock have been paid or
set apart for payment for all Dividend Periods terminating before the date on which notice of a
redemption in accordance with Section 6(a) is sent in accordance with Section 6(b)(ii), none of the
shares of Preferred Stock shall be redeemed, and no sum shall be set aside for such redemption.



     8. Conversion. (a) Right to Convert. Each share of Preferred Stock shall be convertible, at
any time, in accordance with, and subject to, this Section 8 into a number of fully paid and
non-assessable shares of Common Stock equal to the Conversion Rate in effect at such time.
Notwithstanding the foregoing, if shares of Preferred Stock are to be redeemed pursuant to Section
7, such conversion right shall cease and terminate at 5:00 p.m., New York City time, on the
Business Day immediately preceding the Redemption Date as provided herein, unless the Corporation
shall default in the payment of the Redemption Price therefor.



     (b) Conversion Procedures. (i) Conversion of shares of the Preferred Stock may be effected by
any holder thereof upon the surrender to the Corporation, at the principal office of the
Corporation or at the office of the Conversion Agent as may be designated by the Board of
Directors, of the certificate or certificates for such shares of the Preferred Stock to be
converted accompanied by a complete and manually signed Notice of Conversion (as set forth in the
form of Preferred Stock certificate attached hereto as Exhibit A) along with (A) appropriate
endorsements and transfer documents as required by the Registrar or Conversion Agent and (B) if
required pursuant to Section 8(c), funds equal to the dividend payable on the next Dividend Payment
Date. In case such



13









 




Notice of Conversion shall specify a name or names other than that of such
holder, such notice shall be accompanied by payment of all transfer taxes payable upon the issuance
of shares of Common Stock in such name or names. Other than such taxes, the Corporation shall pay
any documentary, stamp or similar issue or transfer taxes that may be payable in respect of any
issuance or delivery of shares of Common Stock upon conversion of shares of the Preferred Stock
pursuant hereto. The conversion of the Preferred Stock will be deemed to have been made as of the
close of business on the date (the “Conversion Date”) such certificate or certificates have been
surrendered and the receipt of such Notice of Conversion and payment of all required transfer
taxes, if any (or the demonstration to the satisfaction of the Corporation that such taxes have
been paid). As promptly as practicable following the Conversion Date, the Corporation shall
deliver or cause to be delivered (1) certificates representing the whole number of validly issued,
fully paid and nonassessable full shares of Common Stock to which the holder of shares of the
Preferred Stock being converted (or such holder’s transferee) shall be entitled, and (2) if less
than the full number of shares of the Preferred Stock evidenced by the surrendered certificate or
certificates is being converted, a new certificate or certificates, of like tenor, for the number
of shares evidenced by such surrendered certificate or certificates less the number of shares being
converted, along with cash payment for any fractional shares. As of the close of business on the
Conversion Date, the rights of the holder of the Preferred Stock as to the shares being converted
shall cease except for the right to receive shares of Common Stock, and the Person entitled to
receive the shares of Common Stock shall be treated for all purposes as having become the record
holder of such shares of Common Stock at such time.





     (ii) Anything herein to the contrary notwithstanding, in the case of Global Preferred
Shares, Notices of Conversion may be delivered to, and shares of the Preferred Stock
representing beneficial interests in respect of such Global Preferred Shares shall be
surrendered for conversion in accordance with the applicable procedures of, the Depositary
as in effect from time to time.



     (c) Dividend and Other Payments Upon Conversion. (i) If a holder of shares of Preferred Stock
exercises conversion rights, such shares will cease to accumulate dividends as of the end of the
day immediately preceding the Conversion Date. On conversion of the Preferred Stock, except for
conversion during the period commencing on the close of business on any Record Date corresponding
to a Dividend Payment Date and ending at the close of business on the Business Day immediately
preceding such Dividend Payment Date, in which case the holder on such Dividend Record Date shall
receive the dividends payable on such Dividend Payment Date, a holder of Shares of Preferred Stock
will not be entitled to accumulated and unpaid dividends and liquidated damages, if any, on the
converted shares of Preferred Stock. Shares of the Preferred Stock surrendered for conversion
after the close of business on any Record Date for the payment of dividends declared and before the
opening of business on the



14









 




Dividend Payment Date corresponding to that Record Date must be
accompanied by a payment to the Corporation in cash of an amount equal to the dividend payable in
respect of those shares on such Dividend Payment Date; provided that a holder of shares of the
Preferred Stock on a Record Date who converts such shares into shares of Common Stock on the
corresponding Dividend Payment Date shall be entitled to receive the dividend payable on such
shares of the Preferred Stock on such Dividend Payment Date, and such holder need not include
payment to the Corporation of the amount of such dividend upon surrender of shares of the Preferred
Stock for conversion.





     (ii) Notwithstanding the preceding paragraph, if shares of the Preferred Stock are
converted during the period that commences after the close of business on any Record Date
and ends at the opening of business on the corresponding Dividend Payment Date and the
Corporation has called such shares of the Preferred Stock for redemption during such
period, or the Corporation has designated a Fundamental Change Redemption Date during such
period, then, in each case, the holder who tenders such shares for conversion shall receive
the dividend payable on such Dividend Payment Date and need not include payment of the
amount of such dividend upon surrender of shares of the Preferred Stock for conversion.



     (d) Fractional Shares. In connection with the conversion of any shares of the Preferred
Stock, no fractional shares of Common Stock shall be issued, but the Corporation shall pay a cash
adjustment in respect of any fractional interest in an amount equal to the fractional interest
multiplied by the Closing Sale Price of the Common Stock on the Conversion Date, rounded to the
nearest whole cent.



     (e) Total Shares. If more than one share of the Preferred Stock shall be surrendered for
conversion by the same holder at the same time, the number of whole shares of, and fractional
interests, if any, in, Common Stock issuable on conversion of those shares shall be computed on the
basis of the total number of shares of the Preferred Stock so surrendered.



     (f) Reservation of Shares; Shares to be Fully Paid; Compliance with Governmental Requirements;
Listing of Common Stock. The Corporation shall:




     (i) at all times reserve and keep available, free from preemptive rights, for issuance
upon the conversion of shares of the Preferred Stock such number of its authorized but
unissued shares of Common Stock as shall from time to time be sufficient to permit the
conversion of all Outstanding shares of the Preferred Stock;




     (ii) prior to the delivery of any securities that the Corporation shall be obligated
to deliver upon conversion of the Preferred Stock, comply with all applicable federal and
state laws and regulations that



15









 




require action to be taken by the Corporation (including,
without limitation, the registration or approval, if required, of any shares of Common
Stock to be provided for the purpose of conversion of the Preferred Stock hereunder); and





     (iii) ensure that all shares of Common Stock delivered upon conversion of the
Preferred Stock will, upon delivery, be duly and validly issued and fully paid and
nonassessable, free of all liens and charges and not subject to any preemptive rights.



     9. Make Whole Payment Upon the Occurrence of a Fundamental Change. (a) General. If a holder
exercises its right pursuant to Section 13 hereof to convert its Preferred Stock upon the
occurrence of a Fundamental Change that occurs prior to April 5, 2015, then in the circumstances
set forth in this Section 9, such holder will be entitled to receive, in addition to a number of
shares of Common Stock equal to the applicable Conversion Rate, an additional number of shares of
Common Stock of the Corporation (the “Additional Shares”) upon conversion as set forth in this
Section 9. The Corporation must give notice to all holders and to the Conversion Agent at least 15
Trading Days prior to the anticipated Effective Date. The Corporation must also give notice to all
holders and to the Conversion Agent that such Fundamental Change has become effective. Holders may
surrender Preferred Stock for conversion and receive the Additional Shares at any time from and
after the date that is 15 days prior to the anticipated Effective Date until and including the date
that is 15 days after the actual Effective Date (or, if such Fundamental Change also results in
holders having a right to require the Corporation to redeem its Preferred Stock in accordance with
Section 13 hereof, until the Fundamental Change Redemption Date).



     (b) Determination of Additional Shares. The number of Additional Shares shall be determined
for the Preferred Stock by reference to the table below, based on the date on which the transaction
constituting a Fundamental Change becomes effective (the “Effective Date”) and the average of the
Closing Sale Prices of Common Stock of the Corporation over the ten Trading Day period ending on
the fifth Trading Day immediately preceding the Effective Date (the “Stock Price”). If holders of
the Common Stock receive only cash in such transaction constituting a Fundamental Change, the Stock
Price shall be the cash amount paid per share. Otherwise, the Stock Price shall be the average of
the Closing Sale Prices of the Common Stock on the five Trading Days prior to but not including the
Effective Date of the transaction constituting the Fundamental Change.




     (i) The Stock Prices set forth in the first row of the table below (i.e., column
headers) will be adjusted as of any date on which the Conversion Rate of the Preferred
Stock is adjusted. The adjusted Stock Prices will equal the Stock Prices applicable
immediately prior to such adjustment, multiplied by a fraction, the numerator of which is
the




16












 





Conversion Rate immediately prior to the adjustment giving rise to the Stock Price
adjustment and the denominator of which is the Conversion Rate as so adjusted. The number
of Additional Shares will be adjusted in the same manner as the Conversion Rate as set
forth under Section 10 below.




     (ii) The following table sets forth the number of Additional Shares to be received per
$1,000 liquidation preference per share of Preferred Stock:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Stock Price on the Effective Date	 
	Effective Date	 	$10.42	 	 	$11.00	 	 	$12.00	 	 	$13.00	 	 	$14.00	 	 	$15.00	 	 	$16.00	 	 	$17.00	 	 	$18.00	 	 	$19.00	 	 	$20.00	 	 	$25.00	 	 	$30.00	 	 	$35.00	 	 	$40.00	 
	April 15, 2005
	 	 	17.59	 	 	 	15.72	 	 	 	13.16	 	 	 	11.10	 	 	 	9.41	 	 	 	8.01	 	 	 	6.96	 	 	 	6.00	 	 	 	5.17	 	 	 	4.48	 	 	 	3.90	 	 	 	1.88	 	 	 	0.81	 	 	 	0.24	 	 	 	0.00	 
	April 5, 2006
	 	 	16.92	 	 	 	14.98	 	 	 	12.39	 	 	 	10.34	 	 	 	8.68	 	 	 	7.47	 	 	 	6.40	 	 	 	5.46	 	 	 	4.66	 	 	 	4.07	 	 	 	3.51	 	 	 	1.68	 	 	 	0.72	 	 	 	0.21	 	 	 	0.00	 
	April 5, 2007
	 	 	16.12	 	 	 	14.47	 	 	 	11.74	 	 	 	9.63	 	 	 	8.02	 	 	 	6.70	 	 	 	5.61	 	 	 	4.70	 	 	 	3.94	 	 	 	3.46	 	 	 	2.94	 	 	 	1.37	 	 	 	0.58	 	 	 	0.16	 	 	 	0.00	 
	April 5, 2008
	 	 	15.75	 	 	 	13.84	 	 	 	11.03	 	 	 	8.83	 	 	 	7.12	 	 	 	5.75	 	 	 	4.65	 	 	 	3.77	 	 	 	3.23	 	 	 	2.71	 	 	 	2.25	 	 	 	1.03	 	 	 	0.43	 	 	 	0.11	 	 	 	0.00	 
	April 5, 2009
	 	 	15.51	 	 	 	13.31	 	 	 	10.35	 	 	 	7.96	 	 	 	6.04	 	 	 	4.51	 	 	 	3.33	 	 	 	2.44	 	 	 	2.10	 	 	 	1.61	 	 	 	1.23	 	 	 	0.52	 	 	 	0.21	 	 	 	0.04	 	 	 	0.00	 
	April 5, 2010
	 	 	15.60	 	 	 	13.33	 	 	 	10.28	 	 	 	7.75	 	 	 	5.46	 	 	 	3.56	 	 	 	1.50	 	 	 	0.65	 	 	 	0.54	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 
	April 5, 2011
	 	 	15.46	 	 	 	13.07	 	 	 	10.08	 	 	 	7.47	 	 	 	5.27	 	 	 	3.12	 	 	 	1.39	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 
	April 5, 2012
	 	 	15.37	 	 	 	13.19	 	 	 	10.00	 	 	 	7.42	 	 	 	5.24	 	 	 	3.11	 	 	 	1.39	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 
	April 5, 2013
	 	 	15.22	 	 	 	13.32	 	 	 	9.85	 	 	 	7.31	 	 	 	5.15	 	 	 	3.06	 	 	 	1.37	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 
	April 5, 2014
	 	 	15.36	 	 	 	13.39	 	 	 	10.10	 	 	 	7.22	 	 	 	5.07	 	 	 	3.02	 	 	 	1.35	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 
	April 5, 2015
	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 







     (iii) The exact Stock Prices and Effective Dates may not be set forth in the
table above, in which case:




     (A) If the Stock Price is between two Stock Price amounts in the table or the
Effective Date is between two Effective Dates in the table, the number of
Additional Shares will be determined by a straight-line interpolation between the
number of Additional Shares set forth for the higher and lower Stock Price amounts
and the two dates, as applicable, based on a 365-day year.




     (B) If the Stock Price is equal to or in excess of $40.00 per share (subject
to adjustment), no Additional Shares will be issued upon conversion.




     (C) If the Stock Price is less than $10.42 per share (subject to adjustment),
no Additional Shares will be issued upon conversion.




     (iv) Notwithstanding the foregoing, in no event will the total number of shares of
Common Stock of the Corporation issuable upon conversion exceed 95.9693 per $1,000
liquidation preference per share of Preferred Stock, subject to adjustments in the same
manner of the Conversion Rate as set forth under Section 10 below.



17









 







     (v) Notwithstanding the foregoing, in the case of a Public Acquirer Fundamental
Change, the Corporation may, in lieu of increasing the Conversion Rate by Additional Shares
as described above in this Section 9, elect to adjust the Conversion Rate and the related
conversion obligation such that, from and after the Effective Date of such Public Acquirer
Fundamental Change, holders of the Preferred Stock who elect to convert will be entitled to
convert their Preferred Stock into a number of shares of Public Acquirer Common Stock that
have been registered, or the resale of which will be registered, under the Securities Act,
if required, by multiplying the Conversion Rate in effect immediately before the Public
Acquirer Fundamental Change by a fraction,




     (A) the numerator of which will be (i) in the case of a consolidation, merger
or binding share exchange, pursuant to which the Common Stock of the Corporation is
converted into or exchanged for the right to receive cash, securities or other
property, the value of all cash and any other consideration (as determined by the
Board of Directors) paid or payable per share of Common Stock or (ii) in the case
of any other Public Acquirer Fundamental Change, the average of the Closing Sale
Price of Common Stock of the Corporation for the five consecutive Trading Days
prior to but excluding the Effective Date of such Public Acquirer Fundamental
Change; and




     (B) the denominator of which will be the average of the last Closing Sale
Price of the Public Acquirer Common Stock for the five consecutive Trading Days
commencing on the Trading Day next succeeding the effective date of such Public
Acquirer Fundamental Change.




Upon the Corporation’s decision to adjust the Conversion Rate and related
conversion obligation upon a Public Acquirer Fundamental Change, holders may
convert their Preferred Stock at the adjusted Conversion Rate described in this
Section 9(b)(v) but will not be entitled to the Additional Shares as described in
this Section 9. The registered shares of Public Acquirer Common Stock, or the
shares of Public Acquirer Common Stock registered for resale, as the case may be,
shall be listed, or approved for listing subject only to the official notice of
issuance, on a national securities exchange or the Nasdaq National Market. Upon a
Public Acquirer Fundamental Change, shares of Public Acquirer Common Stock shall be
subject to the conversion adjustments in Section 10 hereof.




     (vi) In the event the Corporation elects to adjust the Conversion Rate as set forth in
Section 9(b)(v), then the Corporation shall not enter into any transaction which would
result in a Public Acquirer Fundamental Change unless, as a term of such transaction, the
acquirer irrevocably



18









 







commits itself to implement the provisions of Section 9(b)(v) in respect of such
Public Acquirer Fundamental Change.



     10. Conversion Rate Adjustments. The Conversion Rate shall be adjusted from time to time by
the Corporation in accordance with the provisions of this Section 10.



     (a) If the Corporation shall hereafter pay a dividend or make a distribution to all holders of
the outstanding Common Stock in shares of Common Stock, the Conversion Rate in effect at the
opening of business on the date following the Record Date shall be increased by multiplying such
Conversion Rate by a fraction,




     (i) the numerator of which shall be the sum of the number of shares of Common Stock
outstanding at the close of business on such Record Date and the total number of shares of
Common Stock constituting such dividend or other distribution; and




     (ii) the denominator of which shall be the number of shares of Common Stock
outstanding at the close of business on such Record Date.


Such increase shall become effective immediately after the opening of business on the day following
such Record Date. If any dividend or distribution of the type described in this Section 10(a) is
declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion
Rate that would then be in effect if such dividend or distribution had not been declared.




     (b) If the Corporation shall issue rights or warrants to all holders of any class of Common
Stock entitling them (for a period expiring within forty-five (45) days after the Record Date) to
subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a
price per share (or having a conversion price per share) less than the Current Market Price on the
Record Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined
by multiplying the Conversion Rate in effect immediately prior to such Record Date by a fraction,




     (i) the numerator of which shall be the number of shares of Common Stock outstanding
at the close of business on such Record Date plus the total number of shares of Common
Stock so offered for subscription or purchase (or into which the convertible securities so
offered are convertible); and




     (ii) the denominator of which shall be the number of shares of Common Stock
outstanding at the close of business on such Record Date plus the number of shares which
the aggregate offering price of the total number of shares so offered for subscription or
purchase (or the aggregate conversion price of the convertible securities so offered) would
purchase at such Current Market Price.



19









 






Such adjustment shall become effective immediately after the opening of business on the day
following such Record Date. To the extent that shares of Common Stock (or securities
convertible into Common Stock) are not delivered pursuant to such rights or warrants, upon
the expiration or termination of such rights or warrants, the Conversion Rate shall be
readjusted to the Conversion Rate that would then be in effect had the adjustment made upon
the issuance of such rights or warrants been made on the basis of delivery of only the
number of shares of Common Stock (or securities convertible into Common Stock) actually
delivered. If such rights or warrants are not so issued, the Conversion Rate shall again
be adjusted to be the Conversion Rate that would then be in effect if such Record Date had
not been fixed. In determining whether any rights or warrants entitle the holders to
subscribe for or purchase shares of Common Stock at less than such Current Market Price,
and in determining the aggregate offering price of such shares of Common Stock, there shall
be taken into account any consideration received by the Corporation for such rights or
warrants and any amount payable on exercise or conversion thereof, the Fair Market Value of
such consideration, if other than cash, to be determined by the Board of Directors, whose
determination shall be conclusive. Notwithstanding the foregoing, no adjustment shall be
made to the Conversion Rate pursuant to this Section 10(b) for the rights of holders of
Common Stock to participate in any dividend reinvestment plan in existence on April 11,
2005 and made available to all holders of Common Stock or the employee stock purchase plan
to be effective in July 2005, or the purchase of Common Stock pursuant to any such plan.



     (c) If the outstanding shares of Common Stock shall be subdivided into a greater number of
shares of Common Stock, the Conversion Rate in effect at the opening of business on the day
following the day upon which such subdivision becomes effective shall be proportionately increased,
and conversely, in the event outstanding shares of Common Stock shall be combined into a smaller
number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the
day following the day upon which such combination becomes effective shall be proportionately
reduced, such increase or reduction, as the case may be, to become effective immediately after the
opening of business on the day following the day upon which such subdivision or combination becomes
effective.



     (d) If the Corporation shall, by dividend or otherwise, distribute to all holders of its
Common Stock shares of any class of Capital Stock of the Corporation (other than any dividends or
distributions to which Section 10(a) applies) or evidences of its indebtedness or assets (including
securities, but excluding (i) any rights or warrants referred to in 10(b) or (ii) any dividend or
distribution (x) paid exclusively in cash or (y) referred to in Section 10(a) or Section 10(g) (any
of the foregoing hereinafter referred to in this Section 10(d) as the “Distributed Property”),
then, in each such case, the Conversion Rate shall



20









 




be adjusted so that the same shall be equal to the rate determined by multiplying the
Conversion Rate in effect on the Record Date with respect to such distribution by a fraction,





     (iii) the numerator of which shall be the Current Market Price on such Record Date;
and




     (iv) the denominator of which shall be the Current Market Price on such Record Date
less the Fair Market Value (as determined by the Board of Directors, whose determination
shall be conclusive, and described in a resolution of the Board of Directors) on such
Record Date of the portion of the Distributed Property applicable to one share of Common
Stock (determined on the basis of the number of shares of the Common Stock outstanding on
such Record Date).


Such adjustment shall become effective immediately prior to the opening of business on the day
following such Record Date; provided that if the then Fair Market Value (as so determined by the
Board of Directors) of the portion of the Distributed Property applicable to one share of Common
Stock is equal to or greater than the Current Market Price on the Record Date, in lieu of the
foregoing adjustment, adequate provision shall be made so that each holder of Preferred Stock shall
have the right to receive upon conversion the amount of Distributed Property such holder would have
received had such holder converted each share of its Preferred Stock on the Record Date. To the
extent that any of the Distributed Property is not distributed, the Conversion Rate shall be
readjusted to the Conversion Rate that would then be in effect had the adjustment made been made on
the basis of only the Distributed Property actually distributed. If such dividend or distribution
is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that
would then be in effect if such dividend or distribution had not been declared. If the Board of
Directors determines the Fair Market Value of any distribution for purposes of this Section 10(d)
by reference to the trading market for any securities, it must in doing so consider the prices in
such market over the same period used in computing the Current Market Price on the applicable
Record Date.




     Subject to the provisions of Section 12 hereof, rights or warrants (including rights under any
Rights Plan) distributed by the Corporation to all holders of Common Stock entitling the holders
thereof to subscribe for or purchase shares of the Corporation’s Capital Stock (either initially or
under certain circumstances), which rights or warrants, until the occurrence of a specified event
or events (“Trigger Event”): (i) are deemed to be transferred with such shares of Common Stock;
(ii) are not exercisable; and (iii) are also issued in respect of future issuances of Common Stock,
shall be deemed not to have been distributed for purposes of this Section 10(d) (and no adjustment
to the Conversion Rate under this Section 10(d) will be required) until the occurrence of the
earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed
and an appropriate adjustment (if any is required) to the Conversion



21









 




Rate shall be made under this Section 10(d). If any such right or warrant, including any such
existing rights or warrants distributed prior to the date of this Certificate, are subject to
events, upon the occurrence of which such rights or warrants become exercisable to purchase
different securities, evidences of indebtedness or other assets, then the date of the occurrence of
any and each such event shall be deemed to be the date of distribution and record date with respect
to new rights or warrants with such rights (and a termination or expiration of the existing rights
or warrants without exercise by any of the holders thereof). In addition, in the event of any
distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event
(of the type described in the preceding sentence) with respect thereto that was counted for
purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under
this Section 10(d) was made, (1) in the case of any such rights or warrants that shall all have
been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be
readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger
Event, as the case may be, as though it were a cash distribution, equal to the per share redemption
or repurchase price received by a holder or holders of Common Stock with respect to such rights or
warrants (assuming such holder had retained such rights or warrants), made to all holders of Common
Stock as of the date of such redemption or repurchase, and (2) in the case of such rights or
warrants that shall have expired or been terminated without exercise thereof, the Conversion Rate
shall be readjusted as if such expired or terminated rights and warrants had not been issued.




     For purposes of this Section 10(d), Section 10(a) and Section 10(b), any dividend or
distribution to which this Section 10(d) is applicable that also includes shares of Common Stock,
or rights or warrants to subscribe for or purchase shares of Common Stock (or both), shall be
deemed instead to be (1) a dividend or distribution of the evidences of indebtedness, assets or
shares of Capital Stock other than such shares of Common Stock or rights or warrants, as to which
any Conversion Rate adjustment required by this Section 10(d) with respect to such dividend or
distribution shall then be made, immediately followed by (2) a dividend or distribution of such
shares of Common Stock or such rights or warrants, as to which any further Conversion Rate
adjustment required by Sections 10(a) and 10(b) with respect to such dividend or distribution shall
then be made, except any shares of Common Stock included in such dividend or distribution shall not
be deemed “outstanding at the close of business on such Record Date” within the meaning of Sections
10(a) and 10(b).



     (e) If the Corporation shall, by dividend or otherwise, distribute to all holders of its
Common Stock cash, excluding (i) any dividend or distribution in connection with the liquidation,
dissolution or winding-up of the Corporation, whether voluntary or involuntary, (ii) any quarterly
cash dividend on its Common Stock to the extent that the aggregate amount of cash distributions per
share of Common Stock in any quarter does not exceed $0.04 (the “Dividend Threshold Amount”), then,
in such case, the Conversion Rate shall be increased so that



22









 




the same shall equal the rate determined by multiplying the Conversion Rate in effect
immediately prior to the close of business on such Record Date by a fraction,





     (iii) the numerator of which shall be the Current Market Price on such Record Date
less the Dividend Threshold Amount (as such Dividend Threshold Amount may be adjusted
pursuant to this Section 10(e)); and




     (iv) the denominator of which shall be the Current Market Price on such Record Date
less the amount of cash so distributed applicable to one share of Common Stock.


Such adjustment shall be effective immediately prior to the opening of business on the day
following the Record Date; provided that if the portion of the cash so distributed applicable to
one share of Common Stock is equal to or greater than the Current Market Price on the Record Date,
in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of
Preferred Stock shall have the right to receive upon conversion the amount of cash such holder
would have received had such holder converted each share of Preferred Stock on the Record Date. To
the extent that such dividend or distribution is not made, the Conversion Rate shall be readjusted
to the Conversion Rate that would then be in effect had the adjustment made been made on the basis
of only the dividend or distribution actually made. If such dividend or distribution is not so
paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then
be in effect if such dividend or distribution had not been declared. If an adjustment is required
to be made as set forth in this Section 10(e) as a result of a distribution that is not a quarterly
dividend, the Dividend Threshold Amount shall be deemed to be zero for purposes of calculating the
adjustment to the Conversion Rate under this Section 10(e). The Dividend Threshold Amount shall be
adjusted inversely proportional to the adjustments to the Conversion Rate made pursuant to Sections
10(a), (b), (c),(d),(f) and (g) hereof.




     (f) If a tender or exchange offer made by the Corporation or any Subsidiary for all or any
portion of the Common Stock shall require the payment (other than payments made under the
Corporation’s “odd-lot” sale program in existence on April 11, 2005) to stockholders of
consideration per share of Common Stock having a Fair Market Value (as determined by the Board of
Directors, whose determination shall be conclusive and described in a resolution of the Board of
Directors) that, as of the last time (the “Expiration Time”) tenders or exchanges may be made
pursuant to such tender or exchange offer, exceeds the Closing Sale Price of a share of Common
Stock on the Trading Day next succeeding the Expiration Time, the Conversion Rate shall be
increased so that the same shall equal the rate determined by multiplying the Conversion Rate in
effect immediately prior to the Expiration Time by a fraction,



23









 






     (i) the numerator of which shall be the sum of (x) the Fair Market Value (determined
as aforesaid) of the aggregate consideration payable to stockholders based on the
acceptance (up to any maximum specified in the terms of the tender or exchange offer) of
all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the
shares deemed so accepted up to any such maximum, being referred to as the “Purchased
Shares”) and (y) the product of the number of shares of Common Stock outstanding (less any
Purchased Shares) at the Expiration Time and the Closing Sale Price of a share of Common
Stock on the Trading Day next succeeding the Expiration Time; and




     (ii) the denominator of which shall be the number of shares of Common Stock
outstanding (including any Purchased Shares) at the Expiration Time multiplied by the
Closing Sale Price of a share of Common Stock on the Trading Day next succeeding the
Expiration Time.


Such adjustment shall become effective immediately prior to the opening of business on the day
following the Expiration Time. In the event that the Corporation or any such Subsidiary, as the
case may be, is obligated to purchase shares pursuant to any such tender or exchange offer, but the
Corporation or any such Subsidiary, as the case may be, is permanently prevented by applicable law
from effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall
again be adjusted to be the Conversion Rate that would then be in effect if such tender or exchange
offer had not been made.




     (g) If the Corporation pays a dividend or makes a distribution to all or substantially all
holders of its Common Stock consisting of Capital Stock of any class or series, or similar equity
interests, of or relating to a Subsidiary or other business unit of the Corporation, unless the
Corporation distributes such Capital Stock or equity interests to holders of the Preferred Stock in
such distribution on the same basis as they would have received had such holders converted their
shares of Preferred Stock into shares of Common Stock immediately prior to such distributions, the
Conversion Rate shall be increased so that the same shall be equal to the rate determined by
multiplying the Conversion Rate in effect on the Record Date with respect to such distribution by a
fraction,




     (i) the numerator of which shall be the sum of (A) the average of the Closing Sale
Prices of the Common Stock for the ten (10) Trading Days commencing on and including the
fifth Trading Day after the date on which “ex-dividend trading” commences for such dividend
or distribution on The New York Stock Exchange or such other national or regional exchange
or market on which such securities are then listed or quoted (the “Ex-Dividend Date”) plus
(B) the Fair Market Value of the securities distributed in respect of each share of Common
Stock, which shall equal the number of securities distributed in respect of each share of
Common Stock multiplied by the average of the Closing Sale Prices of those



24









 







distributed securities for the ten (10) Trading Days commencing on and including the
fifth Trading Day after the Ex-Dividend Date; and




     (ii) the denominator of which shall be the average of the Closing Sale Prices of the
Common Stock for the ten (10) Trading Days commencing on and including the fifth Trading
Day after the Ex-Dividend Date.


Such adjustment shall become effective immediately prior to the opening of business on the day
following the fifteenth Trading Day after the Ex-Dividend Date.




     (h) To the fullest extent permitted by law, the Corporation may make such increases in the
Conversion Rate in addition to those required by this Section 10 as the Board of Directors
considers to be advisable to avoid or diminish any income tax to holders of Common Stock or rights
to purchase Common Stock resulting from any dividend or distribution of stock (or rights to acquire
stock) or from any event treated as such for income tax purposes. To the fullest extent permitted
by applicable law, the Corporation from time to time may increase the Conversion Rate by any amount
for any period of time if the period is at least 20 days and the increase is irrevocable during the
period and the Board of Directors determines in good faith that such increase would be in the best
interest of the Corporation, which determination shall be conclusive. Whenever the Conversion Rate
is increased pursuant to the preceding sentence, the Corporation shall mail to each holder of the
Preferred Stock at the address of such holder as it appears in the stock register a notice of the
increase at least 15 days prior to the date the increased Conversion Rate takes effect, and such
notice shall state the increased Conversion Rate and the period during which it will be in effect.



     (i) No adjustment in the Conversion Rate (other than any adjustment pursuant to Section 10(e)
above) shall be required unless such adjustment would require an increase or decrease of at least
one percent (1%) in the Conversion Rate then in effect; provided, however, that any adjustments
that by reason of this Section 10(i) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations under this Section 10 shall be made by
the Corporation and shall be made to the nearest cent or to the nearest one-ten thousandth
(1/10,000) of a share, as the case may be. No adjustment need be made, except as set forth in this
Section 10, for any issuance of Common Stock or securities convertible, exercisable or exchangeable
into Common Stock. To the extent the Preferred Stock becomes convertible into cash, assets,
property or securities (other than Capital Stock of the Corporation), subject to Section 11, no
adjustment need be made thereafter to the Conversion Rate. Interest will not accrue on any cash
into which the Preferred Stock may be convertible.



25









 





     (j) Whenever the Conversion Rate is adjusted as herein provided (except for adjustments
pursuant to Section 10(e) hereof that in the aggregate are less than 1%), the Corporation shall
promptly file with the Conversion Agent an Officer’s certificate setting forth the Conversion Rate
after such adjustment and setting forth a brief statement of the facts requiring such adjustment.
Unless and until a responsible officer of the Conversion Agent shall have received such Officer’s
certificate, the Conversion Agent shall not be deemed to have knowledge of any adjustment of the
Conversion Rate and may assume that the last Conversion Rate of which it has knowledge is still in
effect. Promptly after delivery of such certificate, the Corporation shall prepare a notice of
such adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and the date on
which each adjustment becomes effective and shall mail such notice of such adjustment of the
Conversion Rate to each holder of Preferred Stock at its last address appearing in the stock
register within twenty (20) days after execution thereof. Failure to deliver such notice shall not
affect the legality or validity of any such adjustment.



     (k) For purposes of this Section 10, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Corporation, unless such treasury
shares participate in any distribution or dividend that requires an adjustment pursuant to this
Section 10, but shall include shares issuable in respect of scrip certificates issued in lieu of
fractions of shares of Common Stock.



     11. Effect of Reclassification, Consolidation, Merger or Sale on Conversion Privilege. (a) If
any of the following events occur, namely (i) any reclassification or change of the outstanding
shares of Common Stock (other than a subdivision or combination to which Section 10(c) applies),
(ii) any consolidation, merger or combination of the Corporation with another Person as a result of
which holders of Common Stock shall be entitled to receive stock, other securities or other
property or assets (including cash) with respect to or in exchange for such Common Stock, or (iii)
any sale or conveyance of all or substantially all of the properties and assets of the Corporation
to any other Person as a result of which holders of Common Stock shall be entitled to receive
stock, other securities or other property or assets (including cash) with respect to or in exchange
for such Common Stock, then each share of Preferred Stock Outstanding immediately prior to such
transaction shall be convertible into the kind and amount of shares of stock, other securities or
other property or assets (including cash) receivable upon such reclassification, change,
consolidation, merger, combination, sale or conveyance by a holder of a number of shares of Common
Stock issuable upon conversion of such Preferred Stock (assuming, for such purposes, a sufficient
number of authorized shares of Common Stock are available to convert all such Preferred Stock)
immediately prior to such reclassification, change, consolidation, merger, combination, sale or
conveyance assuming such holder of Common Stock did not exercise his rights of election, if any, as
to the kind or amount of stock, other securities or other property or assets (including cash)
receivable upon such reclassification, change, consolidation,



26









 




merger, combination, sale or conveyance (provided that, if the kind or amount of stock, other
securities or other property or assets (including cash) receivable upon such reclassification,
change, consolidation, merger, combination, sale or conveyance is not the same for each share of
Common Stock in respect of which such rights of election shall not have been exercised
(“non-electing share”), then for the purposes of this Section 11 the kind and amount of stock,
other securities or other property or assets (including cash) receivable upon such
reclassification, change, consolidation, merger, combination, sale or conveyance for each
non-electing share shall be deemed to be the kind and amount so receivable per share by a plurality
of the non-electing shares). However, if the Corporation elects to adjust the Conversion Rate and
the related conversion obligation in accordance with Section 9(b)(v) hereof, the foregoing sentence
will not be applicable.




     (b) The Corporation shall cause notice of the application of this Section 11 to be delivered
to each holder of the Preferred Stock at the address of such holder as it appears in the stock
register within twenty (20) days after the occurrence of any of the events specified in Section
11(a) and shall issue a press release containing such information and publish such information on
its web site on the World Wide Web. Failure to deliver such notice shall not affect the legality
or validity of any conversion right pursuant to this Section 11.



     (c) The above provisions of this Section 11 shall similarly apply to successive
reclassifications, changes, consolidations, mergers, combinations, sales and conveyances, and the
provisions of Section 10 shall apply to any shares of Capital Stock received by the holders of
Common Stock in any such reclassification, change, consolidation, merger, combination, sale or
conveyance; provided that if this Section 11 applies to any event or occurrence, Section 10 shall
not apply to such event or occurrence.



     12. Rights Issued in Respect of Common Stock Issued Upon Conversion. Each share of Common
Stock issued upon conversion of the Preferred Stock shall be entitled to receive the appropriate
number of common stock or preferred stock purchase rights, as the case may be, including without
limitation, the rights under the Rights Plan (collectively, the “Rights”), if any, that shares of
Common Stock are entitled to receive and the certificates representing the Common Stock issued upon
such conversion shall bear such legends, if any, in each case as may be provided by the terms of
any shareholder rights agreement adopted by the Corporation, as the same may be amended from time
to time (in each case, a “Rights Plan”). If such Rights Plan requires that each share of Common
Stock issued upon conversion of the Preferred Stock at any time prior to the distribution of
separate certificates representing the Rights be entitled to receive such Rights, then,
notwithstanding anything else to the contrary in this Certificate, there shall not be any
adjustment to the conversion privilege or Conversion Rate as a result of the issuance of Rights,
but an adjustment to the Conversion Rate shall be made pursuant to Section 10(d) upon the
separation of the Rights from the Common Stock, provided that no



27









 




adjustment to the Conversion Rate shall be made pursuant to Section 10(d) upon such separation
if (a) at the time of separation the Corporation sets aside for issuance upon conversion of the
Preferred Stock a number of rights equal to the rights the holders of Preferred Stock would have
received if the conversion occurred immediately prior such separation and (b) the rights so set
aside are perpetual in duration.




     13. Fundamental Change that Requires the Corporation to Redeem Shares of Preferred Stock at
the Option of the Holder.



     (a) Redemption Right. Subject to legally available funds, if there shall occur a Fundamental
Change prior to April 1, 2015, shares of Preferred Stock that remain Outstanding after a
Fundamental Change shall be redeemed, subject to satisfaction by or on behalf of any holder of the
requirements set forth in Section 13(d), by the Corporation at the option of the holders thereof as
of the date specified by the Corporation (the “Fundamental Change Redemption Date”) that is not
more than 30 calendar days (or the next succeeding Business Day if such 30th calendar
day is not a Business Day) after the mailing of written notice of the Fundamental Change pursuant
to Section 13(c) below. The Redemption Price shall be paid, subject to legally available funds, in
cash.



     (b) Limitation on Fundamental Change Redemption Right. Holders of shares of Preferred Stock
shall not have the right to require the Corporation to repurchase shares of Preferred Stock upon a
Fundamental Change unless and until the Board of Directors has approved such Fundamental Change or
elected to take a neutral position with respect to such Fundamental Change.



     (c) Notice to Holders. Within 30 calendar days after the occurrence of a Fundamental Change,
the Corporation shall (i) mail a written notice of the Fundamental Change to each holder at the
address of such holder as it appears in the stock register and to beneficial owners (as required by
applicable law) or (ii) cause DTC to send a notice to its participants that own Preferred Stock
(and issue a press release containing such notice and publish such notice on its web site on the
World Wide Web). The Corporation shall also deliver a copy of the notice to the Transfer Agent.
The notice shall include the form of a Fundamental Change Redemption Notice (as defined in Section
13(d) below) to be completed by the holder and shall state:




     (i) the date of such Fundamental Change and, briefly, the events causing such
Fundamental Change;




     (ii) the date by which the Fundamental Change Redemption Notice pursuant to this
Section 13 must be given;




     (iii) the Fundamental Change Redemption Date;



28









 






     (iv) the Redemption Price that will be payable with respect to the shares of Preferred
Stock that remain Outstanding after such Fundamental Change as of the Fundamental Change
Redemption Date;




     (v) the name and address of each Paying Agent and Conversion Agent;




     (vi) the Conversion Rate and any adjustments thereto;




     (vii) that Preferred Stock that remains Outstanding after such Fundamental Change as
to which a Fundamental Change Event Redemption Notice has been given may be converted into
Common Stock pursuant to this Certificate only to the extent that the Fundamental Change
Redemption Notice has been withdrawn in accordance with the terms of this Certificate;




     (viii) the procedures that the holder of Preferred Stock must follow to exercise
rights under this Section 13; and




     (ix) the procedures for withdrawing a Fundamental Change Redemption Notice, including
a form of notice of withdrawal.


If any of the Preferred Stock that remains Outstanding after such Fundamental Change is in the form
of Global Preferred Shares, then the Corporation shall modify such notice to the extent necessary
to accord with the procedures of the Depositary applicable to the redemption of Global Preferred
Shares.




     (d) Conditions to Redemption. (i) Subject to legally available funds, a holder of shares of
Preferred Stock that remain Outstanding after a Fundamental Change may exercise its rights
specified in Section 13(a) upon delivery of a written notice (which shall be in substantially the
form included as Exhibit B to this Certificate and which may be delivered by letter, overnight
courier, hand delivery, facsimile transmission or in any other written form and, in the case of
Global Preferred Shares, may be delivered electronically or by other means in accordance with the
Depositary’s customary procedures) of the exercise of such rights (a “Fundamental Change Redemption
Notice”) to the Transfer Agent at any time prior to the close of business on the Business Day
immediately before the Fundamental Change Redemption Date. The Fundamental Change Redemption
Notice must specify (A) if certificated shares of Preferred Stock have been issued, the certificate
numbers for such shares in respect of which such notice is being submitted, or if not, such
information as may be required by the Depositary, (B) the number of shares of Preferred Stock, with
respect to which such notice is being submitted; and (C) that the Corporation shall redeem such
Preferred Stock in accordance with the applicable provisions of this Certificate and the Amended
and Restated Certificate of Incorporation. The Transfer Agent shall promptly notify the
Corporation of the receipt of any Fundamental Change Redemption Notice.



29









 






     (ii) The delivery of such shares of Preferred Stock to be redeemed by the Corporation
to the Transfer Agent (together with all necessary endorsements) at the office of the
Transfer Agent, or the book-entry transfer of such shares, shall be a condition to the
receipt by the holder of the Redemption Price.




     (iii) Any redemption by the Corporation contemplated pursuant to the provisions of
this Section 13(d) shall be consummated by the delivery of the consideration to be received
by the holder promptly following the later of the Fundamental Change Redemption Date and
the time of delivery of such share of Preferred Stock to the Transfer Agent in accordance
with this Section 13(d).



     (e) Withdrawal of Fundamental Change Redemption Notice. Notwithstanding anything herein to
the contrary, any holder of Preferred Stock that remains Outstanding after a Fundamental Change
delivering to the Transfer Agent the Fundamental Change Redemption Notice shall have the right to
withdraw such Fundamental Change Redemption Notice in whole or in part at any time prior to the
close of business on the Business Day immediately preceding the Fundamental Change Redemption Date
by delivery of a written notice of withdrawal to the Transfer Agent specifying:




     (i) if certificated shares of Preferred Stock have been issued, the certificate
numbers for such shares in respect of which such notice of withdrawal is being submitted,
or if not, such information as may be required by the Depositary;




     (ii) the number of shares of Preferred Stock, with respect to which such notice of
withdrawal is being submitted; and




     (iii) the number of shares of Preferred Stock, if any, that remain subject to the
original Fundamental Change Redemption Notice and that have been or will be delivered for
redemption by the Corporation.


The Transfer Agent shall promptly notify the Corporation of the receipt of any written notice of
withdrawal of a Fundamental Change Redemption Notice. The Transfer Agent will promptly return to
the respective holders thereof any shares of Preferred Stock with respect to which a Fundamental
Change Redemption Notice has been withdrawn in compliance with this Certificate.




     (f) Global Preferred Shares. Anything herein to the contrary notwithstanding, in the case of
Global Preferred Shares, any Fundamental Change Redemption Notice may be delivered or withdrawn,
and the shares of Preferred Stock that remain Outstanding after a Fundamental Change in respect of
such Global Preferred Shares may be surrendered or delivered for redemption, in accordance with the
applicable procedures of the Depositary as in effect from time to time.



30









 





     (g) Effect of Fundamental Change Redemption Notice. Upon receipt by the Transfer Agent of the
Fundamental Change Redemption Notice, the holder of the shares of Preferred Stock in respect of
which such Fundamental Change Redemption Notice was given shall (unless such Fundamental Change
Redemption Notice is withdrawn as specified above) thereafter be entitled, subject to legally
available funds, to receive the Redemption Price with respect to such shares of Preferred Stock,
subject to 13(d) hereof. Such Redemption Price shall be paid, subject to legally available funds,
to such holder promptly on the later of (a) the Fundamental Change Redemption Date with respect to
such shares of Preferred Stock and (b) the time of delivery or book-entry transfer of such shares
of Preferred Stock to the Transfer Agent by the holder thereof in the manner required by this
Section 13. Shares of Preferred Stock in respect of which a Fundamental Change Redemption Notice
has been given by the holder thereof may not be converted into Common Stock on or after the date of
the delivery of such Fundamental Change Redemption Notice unless such Fundamental Change Redemption
Notice has first been validly withdrawn as specified in Section 13(e) above.



     (h) Deposit of Redemption Price. Prior to 11:00 a.m. (New York City time) on the Fundamental
Change Redemption Date, the Corporation shall, subject to legally available funds, deposit with the
Paying Agent an amount of cash (in immediately available funds if deposited on such Business Day),
sufficient to pay the aggregate Redemption Price of all shares of Preferred Stock that remain
Outstanding after a Fundamental Change or portions thereof which are to be redeemed as of the
Fundamental Change Redemption Date. The manner in which the deposit required by this Section 13(h)
is made by the Corporation shall be at the option of the Corporation, provided, however, that such
deposit shall be made in a manner such that the Paying Agent shall have immediately available funds
on the Fundamental Change Redemption Date. If the Paying Agent holds, on the Business Day
following the Fundamental Change Redemption Date, cash sufficient to pay the Redemption Price of
any share of Preferred Stock for which a Fundamental Change Redemption Notice has been tendered and
not withdrawn in accordance with this Section 13(e), then, immediately after such Fundamental
Change Redemption Date, such share of Preferred Stock (whether or not book-entry transfer of the
shares of Preferred Stock is made or whether or not the certificates representing the shares of
Preferred Stock are delivered to the Transfer Agent) will cease to be Outstanding, dividends will
cease to accrue and all other rights of the holder in respect thereof shall terminate (other than
the right to receive the Redemption Price as aforesaid). The Corporation shall publicly announce
the number of shares of Preferred Stock redeemed as a result of such Fundamental Change on or as
soon as practicable after the Fundamental Change Redemption Date.



     (i) Preferred Stock Redeemed in Part. Upon surrender of a certificate or certificates
representing shares of the Preferred Stock that remain Outstanding after a Fundamental Change that
is or are redeemed in part, the Corporation shall execute, and the Transfer Agent shall
authenticate and deliver




31











 




to the holder, a new certificate or certificates representing shares of the Preferred Stock in
an amount equal to the unredeemed portion of the shares of Preferred Stock surrendered for partial
redemption.




     (j) Repayment to the Corporation. The Paying Agent shall return to the Corporation any cash
that remains unclaimed for two years, subject to applicable unclaimed property law, together with
interest, if any, thereon held by the Paying Agent for the payment of the Redemption Price;
provided, however, that to the extent that the aggregate amount of cash deposited by the
Corporation pursuant to this Section 13 exceeds the aggregate Redemption Price of the Preferred
Stock or portions thereof which the Corporation is obligated to redeem as of the Fundamental Change
Redemption Date, then on the Business Day following the Fundamental Change Redemption Date, the
Paying Agent shall return any such excess to the Corporation. Thereafter, any holder entitled to
payment must look to the Corporation for payment as general creditors, unless an applicable
abandoned property law designates another Person.



     (k) Compliance with Laws. The Corporation will comply with all the applicable provisions of
Rule 13e-4 and any other tender offer rules under the Exchange Act, if required, in connection with
any offer by the Corporation to redeem the Preferred Stock and to the extent necessary to comply
therewith, the time periods specified herein shall be extended accordingly.



     14. Voting Rights.



          (a) The holders of record of shares of the Preferred Stock shall not be entitled to any voting
rights except as hereinafter provided in this Section 14 or as otherwise provided by law.




          (b) The affirmative vote of holders of at least two-thirds of the Outstanding shares of the
Preferred Stock and all other Parity Stock with like voting rights, voting as a single class, in
person or by proxy, at an annual meeting of the Corporation’s stockholders or at a special meeting
called for the purpose, or by written consent in lieu of such a meeting, shall be required to
alter, repeal or amend, whether by merger, consolidation, combination, reclassification or
otherwise, any provisions of the Amended and Restated Certificate of Incorporation or this
Certificate if the amendment would amend, alter or affect the powers, preferences or special rights
of the Preferred Stock, so as to adversely affect the holders thereof, including, without
limitation, the creation of, or increase in the authorized number of, shares of any class or series
of Senior Stock; provided however, that any increase in the amount of the authorized Common Stock
or authorized Preferred Stock or the creation and issuance of any class or series of Common Stock,
other Junior Stock or Parity
Stock will not be deemed to adversely affect such powers, preferences or special rights.





32









 








          (c) If at any time (1) dividends on any shares of Preferred Stock or any other class or series
of Parity Stock having like voting rights shall be in arrears for Dividend Periods, whether or not
consecutive, containing in the aggregate a number of days equivalent to six calendar quarters or
(2) the Corporation shall have failed to pay the Redemption Price when due (whether the redemption
is pursuant to an Optional Redemption or the redemption is in connection with a Fundamental Change
) then, immediately prior to the next annual meeting of shareholders, the total number of directors
constituting the entire Board of Directors shall automatically be increased by two, and, in each
case, the holders of shares of Preferred Stock (voting separately as a class with all other series
of Parity Stock upon which like voting rights have been conferred and are exercisable) will be
entitled to elect two of the authorized number of the Corporation’s directors (each, a “Preferred
Stock Director”) at the next annual meeting of stockholders (or at a special meeting of the
Corporation’s stockholders called for such purpose, whichever is earlier) and each subsequent
meeting until the Redemption Price or all accumulated and unpaid dividends on the Preferred Stock
to the most recent Dividend Payment Date have been fully paid or set aside for payment. The
Preferred Stock Directors shall not be divided into the classes of the Board and the term of office
of all such Preferred Stock Directors shall terminate immediately upon the termination of the right
of the holders of Preferred Stock and such Parity Stock to vote for directors and upon such
termination the total number of directors constituting the entire Board will be automatically
reduced by two. Each holder of shares of the Preferred Stock will have one vote for each share of
Preferred Stock held. At any time after voting power to elect directors shall have become vested
and be continuing in the holders of the Preferred Stock pursuant to this Section 14(c), or if a
vacancy shall exist in the office of any Preferred Stock Director, the Board of Directors may, and
upon written request of the holders of record of at least 25% of the Outstanding shares of
Preferred Stock addressed to the Chairman of the Board of the Corporation shall, call a special
meeting of the holders of the Preferred Stock (voting separately as a class with all other series
of Parity Stock upon which like voting rights have been conferred and are exercisable) for the
purpose of electing the Preferred Stock Director that such holders are entitled to elect. At any
meeting held for the purpose of electing a Preferred Stock Directors, the presence in person or by
proxy of the holders of at least a majority of the Outstanding Preferred Stock shall be required to
constitute a quorum of such Preferred Stock. Any vacancy occurring in the office of a Preferred
Stock Director may be filled by the remaining Preferred Stock Director unless and until such
vacancy shall be filled by the holders of the Preferred Stock and all other Parity Stock having
like voting rights, as provided above.




     15. Transfer Agent and Registrar. The duly appointed Transfer Agent (the “Transfer Agent”) or
Registrar (the “Registrar”) for the Preferred Stock shall be EquiServe Trust Company, N.A. The
Corporation may, in its sole discretion,
remove the Transfer Agent and Registrar in accordance with the agreement between the
Corporation and the Transfer Agent and Registrar; provided that the



33









 




Corporation shall appoint a
successor transfer agent and registrar who shall accept such appointment prior to the effectiveness
of such removal.




     16. Currency. All shares of Preferred Stock shall be denominated in U.S. currency, and all
payments and distributions thereon or with respect thereto shall be made in U.S. currency. All
references herein to “$”or “dollars” refer to U.S. currency.



     17. Form. (a) The Preferred Stock shall be issued in the form of one or more permanent global
shares of Preferred Stock (each, a “Global Preferred Share”) in definitive, fully registered form
with the global legend (the “Global Shares Legend”) each as set forth on the form of Preferred
Stock certificate attached hereto as Exhibit A, which is hereby incorporated in and expressly made
a part of this Certificate. The Global Preferred Shares may have notations, legends or
endorsements required by law, stock exchange rules, agreements to which the Corporation is subject,
if any, or usage (provided that any such notation, legend or endorsement is in a form acceptable to
the Corporation). The Global Preferred Shares shall be deposited on behalf of the holders of the
Preferred Stock represented thereby with the Registrar, at its New York office, as custodian for
the Depositary, and registered in the name of the Depositary or a nominee of the Depositary, duly
executed by the Corporation and countersigned and registered by the Registrar as hereinafter
provided. The aggregate number of shares represented by each Global Preferred Share may from time
to time be increased or decreased by adjustments made on the records of the Registrar and the
Depositary or its nominee as hereinafter provided. This Section 17(a) shall apply only to a Global
Preferred Share deposited with or on behalf of the Depositary. The Corporation shall execute and
the Registrar shall, in accordance with this Section 17, countersign and deliver initially one or
more Global Preferred Shares that (i) shall be registered in the name of Cede & Co. or other
nominee of the Depositary and (ii) shall be delivered by the Registrar to Cede & Co. or pursuant to
instructions received from Cede & Co. or held by the Registrar as custodian for the Depositary
pursuant to an agreement between the Depositary and the Registrar. Members of, or participants in,
the Depositary (“Agent Members”) shall have no rights under this Certificate, with respect to any
Global Preferred Share held on their behalf by the Depositary or by the Registrar as the custodian
of the Depositary, or under such Global Preferred Share, and the Depositary may be treated by the
Corporation, the Registrar and any agent of the Corporation or the Registrar as the absolute owner
of such Global Preferred Share for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Corporation, the Registrar or any agent of the Corporation or the
Registrar from giving effect to any written certification, proxy or other authorization furnished
by the Depositary or impair, as between the Depositary and its Agent Members, the operation of
customary practices of the Depositary governing the exercise of the rights of a holder of a
beneficial interest in any Global Preferred Share. Owners of beneficial interests
in Global Preferred Shares shall not be entitled to receive physical delivery of certificated
shares of Preferred Stock, unless (x) DTC is unwilling or unable to



34









 





continue as Depositary for the
Global Preferred Shares and the Corporation does not appoint a qualified replacement for DTC within
90 days, (y) DTC ceases to be a “clearing agency” registered under the Exchange Act or (z) the
Corporation decides to discontinue the use of book-entry transfer through DTC (or any successor
Depositary). In any such case, the Global Preferred Shares shall be exchanged in whole for
certificated shares of Preferred Stock in registered form, with the same terms and of an equal
aggregate Liquidation Preference (unless the Corporation determines otherwise in accordance with
applicable law). Certificated shares of Preferred Stock shall be registered in the name or names
of the Person or Person specified by DTC in a written instrument to the Registrar.




     (b) (i) Authorized Officers shall sign the Global Preferred Shares for the Corporation, in
accordance with the Corporation’s bylaws and applicable law, by manual or facsimile signature.




     (ii) If the Officers whose signatures are on a Global Preferred Share no longer hold
that office at the time the Transfer Agent authenticates the Global Preferred Share, the
Global Preferred Share shall be valid nevertheless.




     (iii) A Global Preferred Share shall not be valid until an authorized signatory of the
Transfer Agent manually countersigns such Global Preferred Share. The signature shall be
conclusive evidence that such Global Preferred Share has been authenticated under this
Certificate. Each Global Preferred Share shall be dated the date of its authentication.



     18. Registration; Transfer.



          (a) Notwithstanding any provision to the contrary herein, so long as a Global Preferred Share
remains Outstanding and is held by or on behalf of the Depositary, transfers of a Global Preferred
Share, in whole or in part, or of any beneficial interest therein, shall only be made in accordance
with this Section 18.




          (b) Transfers of a Global Preferred Share shall be limited to transfers of such Global
Preferred Share in whole, but not in part, to nominees of the Depositary or to a successor of the
Depositary or such successor’s nominee.




     19. Paying Agent and Conversion Agent.



          (a) The Corporation shall maintain in the Borough of Manhattan, City of New York, State of New
York (i) an office or agency where Preferred Stock may be presented for payment (the “Paying
Agent”) and (ii) an office or agency where Preferred Stock may be presented for conversion (the
“Conversion Agent”). The Transfer Agent shall act as Paying Agent and Conversion Agent, unless
another Paying Agent or Conversion Agent is appointed by the
Corporation. The Corporation may appoint the Registrar, the Paying Agent and the Conversion
Agent and may appoint one or more additional paying agents and





35









 





one or more additional conversion
agents in such other locations as it shall determine. The term “Paying Agent” includes any
additional paying agent and the term “Conversion Agent” includes any additional conversion agent.
The Corporation may change any Paying Agent or Conversion Agent without prior notice to any holder.
The Corporation shall notify the Registrar of the name and address of any Paying Agent or
Conversion Agent appointed by the Corporation. If the Corporation fails to appoint or maintain
another entity as Paying Agent or Conversion Agent, the Registrar shall act as such. The
Corporation or any of its Affiliates may act as Paying Agent, Registrar or Conversion Agent. The
Registrar shall record any exchanges, increases or decreases in the number of shares of Preferred
Stock represented by a Global Preferred Share on Schedule A to such Global Preferred Share.




          (b) Payments due on the Preferred Stock shall be payable at the office or agency of the
Corporation maintained for such purpose in The City of New York and at any other office or agency
maintained by the Corporation for such purpose. Payments shall be payable by United States dollar
check drawn on, or wire transfer (provided, that appropriate wire instructions have been received
by the Registrar at least 15 days prior to the applicable date of payment) to a U.S. dollar account
maintained by the holder with, a bank located in New York City; provided that at the option of the
Corporation, payment of dividends may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Preferred Stock register. Notwithstanding the
foregoing, payments due in respect of beneficial interests in the Global Preferred Shares shall be
payable by wire transfer of immediately available funds in accordance with the procedures of the
Depositary.




     20. Headings. The headings of the Sections of this Certificate are for convenience of
reference only and shall not define, limit or affect any of the provisions hereof.



36









 





EXHIBIT A




FORM OF 4.99% CONVERTIBLE PERPETUAL PREFERRED STOCK




			
	 	 	 
	Number:                     
	 	                     Shares





CUSIP NO.:




4.99% Convertible Perpetual Preferred Stock

(par value $0.01 per share)

(liquidation preference $1,000 per share)

OF

EL PASO CORPORATION




FACE OF SECURITY


UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CORPORATION OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL IN AS MUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.



TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN THE CERTIFICATE OF DESIGNATIONS REFERRED TO BELOW.



IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH
CERTIFICATES AND OTHER INFORMATION AS SUCH REGISTRAR AND TRANSFER AGENT MAY REASONABLY REQUIRE TO
CONFIRM THAT TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.



THE SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT OF 1933”), OR ANY STATE SECURITIES LAWS, AND MAY






37









 







NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF,
THE HOLDER:



(1) REPRESENTS THAT IT IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT OF 1933;



(2) AGREES THAT IT WILL NOT, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS
TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
CORPORATION OR ANY AFFILIATE OF THE CORPORATION WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR
OF SUCH SECURITY), RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY OR THE COMMON STOCK
ISSUABLE UPON CONVERSION OF SUCH SECURITY EXCEPT (A) TO EL PASO CORPORATION OR ANY SUBSIDIARY
THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT OF 1933, (C) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT OF 1933 (IF AVAILABLE), OR (D) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT OF 1933 AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME
OF SUCH TRANSFER; AND



(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY EVIDENCED HEREBY IS TRANSFERRED
(OTHER THAN A TRANSFER PURSUANT TO CLAUSE 2(C) OR 2(D) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND.







38









 







EL PASO CORPORATION, a Delaware corporation (the “Corporation”), hereby certifies that Cede & Co.
or registered assigns (the “Holder”) is the registered owner of fully paid and non-assessable
shares of preferred stock of the Corporation designated the “4.99% Convertible Perpetual Preferred
Stock,” par value $0.01 per share and liquidation preference $1,000 per share (the “Preferred
Stock”). The shares of Preferred Stock are transferable on the books and records of the Registrar,
in person or by a duly authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer. The designation, rights, privileges, restrictions, preferences and other
terms and provisions of the Preferred Stock represented hereby are issued and shall in all respects
be subject to the provisions of the Certificate of Designations of the Corporation dated April 14,
2005, as the same may be amended from time to time in accordance with its terms (the “Certificate
of Designations”). Capitalized terms used herein but not defined shall have the respective
meanings given them in the Certificate of Designations. The Corporation will provide a copy of the
Certificate of Designations to a Holder without charge upon written request to the Corporation at
its principal place of business.



Reference is hereby made to select provisions of the Preferred Stock set forth on the reverse
hereof, and to the Certificate of Designations, which select provisions and the Certificate of
Designations shall for all purposes have the same effect as if set forth at this place.



Upon receipt of this certificate, the Holder is bound by the Certificate of Designations and is
entitled to the benefits thereunder.



Unless the Transfer Agent’s Certificate of Authentication hereon has been properly executed, the
shares of Preferred Stock evidenced hereby shall not be entitled to any benefit under the
Certificate of Designations or be valid or obligatory for any purpose.







39









 







IN WITNESS WHEREOF, El Paso Corporation has executed this Certificate as of the date set forth
below.




	 	 	 	 	 
	 	EL PASO CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	Dated: 	 	 
	 



TRANSFER AGENT’S CERTIFICATE OF AUTHENTICATION



This is one of the certificates representing shares of Preferred Stock referred to in the within
mentioned Certificate of Designations.




	 	 	 	 	 
	 	as Transfer Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	Authorized Signatory 	 
	 
	 	Dated: 	 	 



40









 






	 	 	 	 	 


REVERSE OF SECURITY




EL PASO CORPORATION




4.99% Convertible Perpetual Preferred Stock


Dividends on each share of 4.99% Convertible Perpetual Preferred Stock shall be payable in cash at
a rate per annum set forth on the face hereof or as provided in the Certificate of Designations.



The shares of 4.99% Convertible Perpetual Preferred Stock shall be redeemable as provided in the
Certificate of Designations. The shares of 4.99% Convertible Perpetual Preferred Stock shall be
convertible into the Corporation’s Common Stock in the manner and according to the terms set forth
in the Certificate of Designations. Upon a Fundamental Change, holders of shares of 4.99%
Convertible Perpetual Preferred Stock that remain Outstanding after the Fundamental Change will
have the right to require the Corporation to redeem such shares in the manner and according to the
terms set forth in the Certificate of Designations.



As required under Delaware law, the Corporation shall furnish to any Holder upon request and
without charge, a full summary statement of the designations, voting rights preferences,
limitations and special rights of the shares of each class or series authorized to be issued by the
Corporation so far as they have been fixed and determined.







41









 








ASSIGNMENT





     FOR VALUE RECEIVED, the undersigned assigns and transfers the shares of 4.99% Convertible
Perpetual Preferred Stock evidenced hereby to:




 





 




(Insert assignee’s social security or tax identification number)



 




(Insert address and zip code of assignee)



 




 




and irrevocably appoints:



 




agent to transfer the shares of 4.99% Convertible Perpetual Preferred Stock evidenced hereby on the
books of the Transfer Agent and Registrar. The agent may substitute another to act for him or her.



Date: __________________



Signature: ______________________



(Sign exactly as your name appears on the other side of this 4.99% Convertible Perpetual Preferred
Stock)



Signature Guarantee: _____________________1






 




			
	1	 	Signature must be guaranteed by an “eligible
guarantor institution” (i.e., a bank, stockbroker, savings and loan association
or credit union) meeting the requirements of the Registrar, which requirements
include membership or participation in the Securities Transfer Agents Medallion
Program (“STAMP”) or such other “signature guarantee program” as may be
determined by the Registrar in addition to, or in substitution for, STAMP, all
in accordance with the Securities Exchange Act of 1934, as amended.






42











 





NOTICE OF CONVERSION



(To be Executed by the Registered Holder

in order to Convert the 4.99% Convertible Perpetual Preferred Stock)


The undersigned hereby irrevocably elects to convert (the “Conversion”) _______ shares of 4.99%
Convertible Perpetual Preferred Stock (the “Preferred Stock”), represented by stock certificate
No(s). __ (the “Preferred Stock Certificates”) into shares of common stock, par value $3.00 per
share (“Common Stock”), of El Paso Corporation (the “Corporation”) according to the conditions of
the Certificate of Designations establishing the terms of the Preferred Stock (the “Certificate of
Designations”), as of the date written below. If shares are to be issued in the name of a Person
other than the undersigned, the undersigned will pay all transfer taxes payable with respect
thereto and is delivering herewith such certificates. No fee will be charged to the holder for any
conversion, except for transfer taxes, if any. A copy of each Preferred Stock Certificate is
attached hereto (or evidence of loss, theft or destruction thereof).



The undersigned represents and warrants that all offers and sales by the undersigned of the shares
of Common Stock issuable to the undersigned upon conversion of the Preferred Stock shall be made
pursuant to registration of the Common Stock under the Securities Act of 1933 (the “Act”) or
pursuant to an exemption from registration under the Act.



The Corporation is not required to issue shares of Common Stock until the original Preferred Stock
Certificate(s) (or evidence of loss, theft or destruction thereof) to be converted are received by
the Corporation or its Transfer Agent. The Corporation shall issue and deliver shares of Common
Stock to an overnight courier as promptly as practicable following receipt of the original
Preferred Stock Certificate(s) to be converted.



Capitalized terms used but not defined herein shall have the meanings ascribed thereto in or
pursuant to the Certificate of Designations.




     Date of Conversion: ____________________________________________




     Applicable Conversion Rate: ____________________________________




     Number of shares of 4.99% Convertible Perpetual Preferred Stock



          to be Converted: __________________________




43









 








     Number of shares of Common Stock to be Issued: __________________



     Signature: _______________________________________________





     Name: __________________________________________________




     Address:2 _______________________________________________





     Fax No.: _________________________________________________







 




			
	2	 	Address where shares of Common Stock and any
other payments or certificates shall be sent by the Corporation.




44









 










SCHEDULE A




SCHEDULE OF EXCHANGES FOR GLOBAL SECURITY



     The initial number of shares of 4.99% Convertible Perpetual Preferred Stock represented by
this Global Preferred Share shall be ______. The following exchanges of a part of this Global
Preferred Share have been made:



	 	 	 	 	 	 	 	 	 

	Date 

of 

Exchange
	 	Amount of

decrease in

number of shares

represented by

this

Global

Preferred Share
	 	Amount of

increase in

number of shares

represented by this

Global

Preferred

Share
	 	Number of shares

represented by

this Global

Preferred Share

following

such decrease or

increase
	 	Signature of

authorized officer

of Registrar
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 





45












 





EXHIBIT B




FORM OF NOTICE OF ELECTION OF REDEMPTION

UPON A FUNDAMENTAL CHANGE



EquiServe Trust Company, N.A., as Transfer Agent

[_______________]





			
	Re:	 	El Paso Corporation

4.99% Convertible Perpetual Preferred Stock

(the “Preferred Stock”)





     The undersigned hereby irrevocably acknowledges receipt of a notice from El Paso Corporation
(the “Corporation”) as to the occurrence of a Fundamental Change with respect to the Corporation
and requests and instructs the Corporation to redeem _____ shares of Preferred Stock in accordance
with the terms of the Certificate of Designations at the Redemption Price.



     Capitalized terms used but not defined herein shall have the meanings ascribed thereto
pursuant to the Certificate of Designations.



Dated: _____________

___________________

___________________

Signature(s)




NOTICE: The above signatures of the holder(s) hereof must

correspond with the name as written upon the face of the

security in every particular without alteration or

enlargement or any change whatever.




Aggregate Liquidation Preference to be redeemed (if less

than all):




____________________________




____________________________




Social Security or Other Taxpayer Identification Number





46